Consumers' Power Co.

In the Matter of CONSUMERS' POWER COMPANY, A CORPORATION and LOCAL No. 740, UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA 1 Case No. C-790.Decided November 8,'1938 Electric and Gas Utility Industry-Interference, Restraint, and Coercion: surveillance of meeting ; transfer of union members to less desirable work; warnings not to join union-Company-Dominated Union: domination of and interference with formation and administration ; support ; urging employees to form inside labor organization ; encouragement of inside organization by dis- couragement of other labor organization ; participation by supervisory em- ployees ; respondent ordered not to recognize as agency for collective bargaining. Mr. Harold A. Crane field, and Mr. Charles F. Mo rlean, for the Board. Bisbee, MoKone, Badgley cfi Kendall, by Mr. Don T. McKone, and Mr. M. F. Badgley, and Mr. W. D. Kline, of Jackson, Mich., for the respondent. Mr. Maurice Sugar, of Detroit, Mich., for Local 740. Mr.- Frank C. Painter, of Jackson, Mich., for the Independent. Mr. Joseph B. Robison, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On February 2, 1938, Local No. 740, United Electrical, Radio & Machine Workers of America,2 herein called Local 740, filed a charge with the Regional Director for the Seventh Region (Detroit, Michi- gan) alleging that Consumers' Power Company, a corporation," Jackson, Michigan, herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 5, 1938, the National Labor Relations Board, herein called the Board, by the Regional Director, issued its com- 1 A motion to change the title in this proceeding was made and granted , as described below. 2 The name of Local 740, as it appears in the charge, is Local 740, U. E. R. & M. W. of A. The name of the respondent as it appears in the charge is Consumers Power Company. 9 N. L. R. B., No. 66. 701 702 NATIONAL LABOR RELATIONS BOARD plaint against the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent and Local 740. In respect of the unfair labor practices, the complaint in substance alleged that the respondent dominated and interfered with the) formation and administration of a labor organization known as the Independent Power Employees' Association, herein called the Inde- pendent, and contributed support to it ; that such domination, inter- ference, and support was manifested by displaying hostility toward United Electrical, Radio & Machine Workers of America, herein called the United; by encouraging membership in the Independent; by discriminating in regard to the tenure and term of employment of its employees for the purpose of encouraging membership in the Independent and of discouraging membership in the United; by per- mitting activity on behalf of the Independent during working hours and on its premises; by open surveillance of meetings of the United; and by other acts. The respondent filed an answer dated May 10, 1938, and on May 17, at the. hearing of the case, filed an amendment to its answer. The answer, as amended, in substance denied the alleged unfair labor practices, admitted certain allegations of the complaint concerning the respondent's business, denied the other allegations, and alleged affirmatively that the effect upon commerce of labor disputes in the conduct of the respondent's business would be indirect and remote. The answer of the respondent was accompanied by a motion to dis- miss the proceedings on various jurisdictional and constitutional grounds. Pursuant to the notice, a hearing was held in Jackson, Michigan, from May 12 to July 28, 1938, before Charles W. Whittemore, the Trial Examiner duly designated by the Board. At the outset of the hearing, a petition for intervention, previously filed by the In- dependent, and dated May 7, was granted by the Trial Examiner, participation by the intervenor being limited, however, to such mat- ters as pertained to the alleged unfair labor practices within the meaning of Section 8 (2) of the Act. The Board, the respondent, Local 740, and the Independent were represented by counsel and participated in the hearing. With the limitation noted above as to the Independent, full opportunity to be heard, to examine and cross- examine witnesses, and to produce evidence bearing upon the issues was afforded all parties. The respondent's motion to dismiss the proceedings, made prior to the commencement of the hearing, was denied by the Trial Examiner DECISIONS AND ORDERS 703 on May 16. At the conclusion of the presentation of the Board's case, on June 16, the respondent moved to dismiss the proceedings on the grounds alleged in its original motion and on the additional grounds that the evidence failed to sustain the allegations of the complaint of unfair labor practices and that all matters in dispute had been settled pursuant to a contract between the respondent and the United. The Independent moved to dismiss that portion of the complaint which alleged unfair labor practices within the meaning of Section 8 (2) of the Act. These motions were denied. Both were renewed at the close of the hearing, at which time the Trial Examiner reserved decision. On May 16, counsel for the Board moved to amend the title of the proceedings to conform to the evidence by substituting for the name of Local 740, the name, "Utility Workers Organizing Committee, Local 101." The motion was granted.4 On June 18, counsel for the Board moved for leave to file an amended complaint to conform to the proof. The motion was renewed at the close of the hearing, at which time it was granted. Counsel for the Board was allowed 7 days in which to file the amended complaint, and the respondent was allowed 7 days after the filing of the amended complaint in which to file an amended answer. At the close of the hearing, the parties were given 30 days for the filing of briefs, and were informed that they would be given 10 days from the date of the Trial Exam- iner's Intermediate Report to request oral argument before the Board. On August 2, 1938, pursuant to the motion made and granted at the hearing, counsel for the Board filed an amended complaint, which contained certain additional allegations concerning acts of the respondent constituting unfair labor practices within the mean- ing of Section 8 (1) and (2) of the Act; and an allegation that "Utility Workers Organizing Committee," herein called U. W. O. C., "successor to Local 740" of the United, was a labor organization within the meaning of Section 2 (5) of the Act. The amended com- plaint also differed from the original complaint in that it alleged that certain unfair labor practices of the respondent affected U. W. O. C. as well as the United. Thereafter, the respondent filed its amended answer to the amended complaint, in which it changed some of the allegations and de- nials of its original answer with regard to the nature of its business and the effects thereof upon commerce. It denied the right of the Board to substitute a new union as complaining party; and it al- leged that the amended complaint was contrary to the rules of the Board in that, among other things, it enlarged the scope of the ' This aspect of the case is discussed below in Section II. f. 704 NATIONAL LABOR RELATIONS BOARD original complaint. The amended answer contained a prayer that the complaint be dismissed. On August 3, 1938, the Board, acting pursuant to Article II, Sec- tion 37 (a), of National Labor Relations Board Rules and Regula- tions-Series 1, as amended, issued an order directing that the pro- ceedings be transferred to and continued before it. Thereafter, the Independent filed an objection and exception to the above order, and requested that an Intermediate Report be filed by the Trial Examiner. The respondent filed a motion, dated August 11, 1938, to remand the case to the Trial Examiner . On August 16, 1938, the Board issued an order denying the respondent 's motion, overruling the Independent's objection and exception , and denying its request. The respondent also requested that it be permitted to file a brief with the Board, and the Independent requested permission to file briefs and make oral argument . By an order dated August 29, 1938, the Board directed that Proposed Findings of Fact, Proposed Con- clusions of Law, and Proposed Order be issued and that the parties have the right, within 10 days from the receipt thereof, to file ex- ceptions thereto, to request oral argument before the Board, and to request permission to file a brief with the Board. The Board has considered and hereby affirms the rulings of the Trial Examiner with respect to the motions described above. The motions made at the conclusion of the hearing , on which the Trial Examiner reserved decision, and the motion to dismiss the com- plaint made in the respondent's amended answer , are hereby denied. During the course of the hearing , the Trial Examiner made numer- ous other rulings on motions and objections with respect to the admission of evidence . The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. Counsel for the respondent and counsel for the Independent ob- jected throughout the hearing to the participation therein of coun- sel for the 'Union which filed the charge herein. The participation of Mr. Sugar was in accordance with the rules and practice of the Board. The rulings of the Trial Examiner in this regard are hereby affirmed. On September 2, 1938, pursuant to the Order above described, Proposed Findings of Fact, Proposed Conclusions of Law, and Pro- posed Order were issued. On September 15 and 16, respectively, the respondent and the Independent filed exceptions thereto. The re- spondent and the Independent also filed briefs with the Board, which have been considered. Pursuant to a notice of hearing and a notice of an advancement of the date thereof, a hearing was held before the Board in Washington , D. C., on October 6, 1938, for the DECISIONS AND ORDERS 705 purpose of oral argument on the exceptions. The respondent and the Independent were represented by counsel and participated in the argument. The Independent filed a motion with the Board, dated October 3, 1938, requesting that the record in this proceeding be reopened for the purpose of taking further testimony, and specifically for the purpose of incorporating therein, the record in the proceeding in Case No. R-1004, and for the purpose of showing activity by crew foremen on behalf of labor organizations other than the Independent. The motion is hereby denied. Most of the evidence in question was available at the time of the hearing in this proceeding. We do not deem the other evidence offered of sufficient significance to warrant reopening the record. The Board has considered the exceptions filed by the respondent and the Independent. Except in so far as the Findings of Fact below differ from the Proposed Findings of Fact, we find them to be without merit. They are hereby overruled. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The respondent was incorporated under the laws of the State of Maine on April 14, 1910, and was admitted to do business in the State of Michigan on July 21, 1915. On November 30, 1937, 68.97 per cent of the respondent's voting stock was owned by The Com- monwealth & Southern Corporation of Delaware. Ten other sub- sidiaries of the Delaware corporation operate in the Middle West and South Atlantic States. The various subsidiaries together own The Commonwealth and Southern Corporation of New York, which performs certain services for each of them. The respondent's executive offices are located in Jackson, Michigan. It is engaged in the production, purchase, and distribution of electric .energy and gas, as well as of water, steam heat, electrical and gas appliances, and byproducts, in the State of Michigan. It serves an .area of 25,000 square miles, the population of which is in excess of 1,900,000. The area includes over 900 cities, towns, and smaller com- munities. Electricity is sold in 987 communities and townships, as well as in rural areas; manufactured gas is sold in 126, and natural gas in 103 communities and townships. Steam heat and water are each sold in four communities. On November 30, 1937, the respond- ent had 392,653 customers of electric energy and 193,515 customers of gas. Aside from certain municipal power plants, there are no compet- ing sources of electric power in the area served by the respondent. 706 NATIONAL LABOR RELATIONS BOARD Other gas and electric utility companies operating in Michigan do not operate parallel lines. In November 1937, the respondent had 6,961 employees . In Febru- .'ary 1938 the total number of employees was 6,467, and in May 1938, 6,131. The respondent has interconnections with other electric utility com- panies operating in Michigan . Thus it has two interconnections with Michigan Public Service Company. It supplies almost all of the power requirements of a utility company in Adrian, Michigan. It purchases the output of four companies , including that of Wolverine Power Company , which has an installed capacity of 13,400 kilowatts. Finally it purchases the entire supply of electric energy, about 29,000 kilowatts , which it distributes in Pontiac , from the Detroit Edison Company, and has other interconnections with that company which are used as a source of emergency supply for either company. Through these latter connections the respondent has an emergency reserve of 25,000 kilowatts . There is a daily interchange of power over these lines.5 The 42 hydroelectric plants operated by the respondent include 17 with a total capacity of 137,110 kilowatts , and 25 small plants with a total capacity of 10,605 kilowatts . The total effective capacity of these plants during the low-water season is estimated at 91,890 kilo- watts. The respondent's six steam electric plants have a , total effec- tive capacity of 254,500 kilowatts , of which 23 ,000 kilowatts are held in reserve. During the 12 months ending on November 30, 1937, the respondent produced 1,546,816,430 and purchased 155,251,089 kilo- watt hours of electric energy. The respondent's generating plants are connected into a single unitary system known as a power pool , which uses 2,455.52 circuit miles of high-tension transmission lines. The distribution system totals 15,094 miles of line. The respondent has seven active and six inactive plants for the production of coal gas, and seven active and five inactive plants for the manufacture of water gas. The total daily manufacturing capac- ity of these plants is 40,430 ,000 cubic feet. The respondent also purchases natural gas produced in Michigan . In the 12 months end- ing November 30, 1937, the respondent produced 5,452,768,000 and purchased 3,853,754,000 cubic feet of gas. Purchase and sale of materials in interstate commerce Coal is used for the operation of the steam electric plants which include over 60 per cent of the respondent's total generating capacity. It also constitutes the raw material used in the coal gas generating 6 Detroit Edison Company supplies power for a tunnel between Michigan and Canada. The record shows that it is unlikely that power from the respondent could find its way to this tunnel. DECISIONS AND ORDERS 707 plants. All of the coal used by the respondent is purchased outside of Michigan, chiefly in West Virginia and Kentucky. In 1937, it paid $1,835,000,-exclusive of transportation costs, for about 1,000,000 tons of coal. About 325,000 tons were used in the gas plants and most of the balance was used in generating electricity. Shipments of coal by rail are received daily at each of the plants, and are also, received frequently, during the shipping season on the Great Lakes, at the respondent's docks in the Saginaw River. In addition to the natural gas purchased by the respondent, oil for the manufacture of water gas is also purchased. All the natural gas and oil so purchased are produced within Michigan. In connection with its operations, the respondent sells gas and electric household appliances within the area it serves, maintaining 45 retail outlets for this purpose. Although this phase of its opera- tions is maintained merely to increase the sale of gas and electric energy, the appliances sold by the respondent constitute about 30' per cent of such articles sold in the territory. During 1937, the respondent paid $2,200,000 for the purchase of appliances, 60 per cent of which were shipped to it from points outside Michigan. Among the other raw materials purchased by the respondent are poles used for transmission lines. During 1937, all of the poles pur- chased were shipped to it from points outside Michigan, including 80,000 pine poles from Louisiana and 10,000 cedar poles from Washington. Large supplies of the raw materials described above are kept on hand at all times. Thus, although shipments of coal are received daily by the respondent, there is an established practice to keep at least a 60-day supply on hand. The average for appliances is 11/2 to 2 months." Generally, all purchases made by the respondent are added to stock, and are not used at once. The raw materials used by the respondent are sent to it by railway, motor truck, lake vessels, and other means. The respondent sells certain byproducts of the manufacture of gas, which include coke, all of which is sold to purchasers in Michigan ; tar, 65 per cent of which, amounting in value to $59,500, was sold during 1937 to purchasers outside Michigan; ammonia and ammonium sulphate, 95 per cent of which, amounting in value to $30,300, was sold to purchasers outside Michigan; and drip oil, all of which, amounting in value to $10,600, was sold to purchasers outside Michigan. Dependence of consuimers on electric energy and gas supplied by the respondent For the 12 months ending on November 30, 1937, about 56 per cent of the electric energy sold by the respondent, representing 32 per cent 134068-39-vol. ix-46 708 NATIONAL LABOR RELATIONS BOARD of the revenue received from the sale of such energy, was sold for industrial purposes. In the same period, 32 per cent of the gas sales, representing 21 per cent of the revenue received from such sales, were made for commercial and industrial purposes. During 1937, 15.85 per cent of the respondent's revenue for the sale of electric energy, and 26.40 per cent of its revenue from the sale of gas came from the automobile and automobile equipment industry alone. It should be noted that the percentage of electricity and gas sold to this industry, as distinguished from the percentage of revenue derived therefrom, is even higher, because of the relatively lower rates charged to industrial users. In addition, during 1937, 0.94 per cent of the revenues from the sale of electric energy and 0.22 per cent of the revenue from the sale of gas came from instrumentalities of transportation and communication, such as railroads, newspapers, telephone and telegraph companies, airports, and docks. The record shows that the effect upon commerce and the instru- mentalities of commerce of a cessation of the power supplied by the respondent to its customers would be disastrous. Among such cus- tomers are vast industrial concerns, the operations of which create a constant flow of materials into and out of Michigan, and various instrumentalities of interstate transportation and communication. Industry.-As noted above, a very large percentage of the electric energy and gas sold by the respondent is used in the automobile and automobile equipment industries. Plants operated by General Motors Corporation alone during 1937 purchased 371,896,003 kilowatt hours of electricity and 1,775,892,000 cubic feet of gas, paying $3,691,655 and `$567,171 therefor respectively. These plants do not have sufficient auxiliary equipment to operate without the electric energy and gas .supplied by the respondent. If this supply should fail, the operations -of these plants would automatically cease. The various operating divisions of General Motors Corporation which use the respondent's power and gas send part of their products to other divisions of that company and sell the balance to General Motors Sales Corporation, which sells them to other unallied com- -parries. Similarly, they use some raw materials supplied by other -divisions of General Motors and by outside producers. Figures fur- nished by General Motors Corporation show that, on the average, 53.95 per cent of the raw materials used by the plants served by the respondent are shipped to them from points outside Michigan. On - i he average, 42.09 per cent of the finished products of these General --Motors plants were shipped to points outside Michigan. Several of these General Motors plants manufacture parts which are not manufactured elsewhere, and consequently are necessary to the operations of other General Motors plants which do not use ,electric energy or gas supplied by the respondent. Assembly plants DECISIONS AND ORDERS 709 in 13 States are dependent on the continuous operations of these parts plants. Similarly, parts plarits in other States would be affected by a cessation of the operations of the automobile plants supplied with power by the respondent. Such a cessation would cause a progres- sive retardation of the operations of the supplier plants, as their output could not be handled. The movement of raw materials and products to and from these plants is a daily operation. An interrup- tion in the operations of these plants, which would result from a cessation of the flow of power from the respondent, such as would tend to accompany a labor dispute between the respondent and its employees, would stop the operations of General Motors plants both within and without Michigan in a very short time and would halt or diminish the daily flow in interstate commerce of raw materials and products to and from the General Motors plants. During 1937, the operations of some of the General Motors plants were in fact halted by the strikes among the respondent's employees which are described below in Section III. On two occasions the plants were shut down and the men sent home. Other industries in Michigan use a substantial quantity of the electric energy and gas distributed by the respondent. These in- clude machinery and metal products, chemical and allied products, food stuffs and tobacco, and lumber and wood products. The record shows the magnitude of the operations in interstate commerce which depend on the respondent. Evidence in the record as to specific plants operating in Michigan shows their complete dependence on the respondent for electric energy and gas, their absence of auxiliary equipment, the magnitude of their operations, the amount of their shipments of raw materials and products across State lines, and the actual effect of previous strikes among the respondent's employees. Typical of such businesses and the dependence of their operations upon power supplied by the respondent is Baker-Perkins Company, -Inc. which manufactures food producing and chemical machinery. It is completely dependent on the supply of electricity and gas by the respondent, and would have to shut down in the event of an interruption of that supply. During 1937, 60 to 65 per cent of the raw materials purchased by that company were shipped to it from points outside Michigan, and 90 to 92 per cent of its products were shipped to points outside Michigan. ' Its gross sales during 1937 amounted to $4,443,169.21. The operations of this company were interrupted during 2 days by a strike of the respondent's employees. Another instance is Kalamazoo Stationery Company which manu- factures stationery supplies, with gross sales during 1937 of $1,485,- 724.35. It appears that it depends entirely on the respondent for the electric energy and gas necessary to its operations, and that during the 12 months ending on October 31, ' 1937, 80 per cent of its raw 710 NATIONAL LABOR RELATIONS BOARD materials, and 82 per cent of its products were shipped across State lines. A final example is that of the Defoe Boat and Motor Works, which during 1937 was engaged chiefly in the building of three ships sold at a total price of $536,243, and which depends entirely on the re- spondent for the electricity which drives all of its machinery. Its plant was closed down during the 1937 strikes of the respondent's employees. Eighty-five per cent of the materials used in production in 1937 were shipped to it from points outside Michigan, and prac- tically its entire output for that year was shipped out of the State. The importance of the relationship between the respondent and its industrial customers who ship and receive large quantities of goods in interstate commerce, can be seen in the statement which ap- pears in a prospectus, dated January 17, 1938, issued in connection with a $9,000,000 bond issue, that, "The current recession in the auto- mobile industry and industrial production generally may adversely affect the revenues of the Company." The record clearly shows the dependence upon the respondent of a large industrial area. Engaged in business in this area are con- cerns which daily make and receive shipments in interstate com- merce. There is a constant flow of a vast amount of materials across State lines to and from companies whose operations would cease at once upon an interruption of the respondent's output of electric en- ergy and gas. This flow would be severely diminished in the event of such an interruption. The effect on commerce of a labor dispute between the respondent and its employees involving a cessation of work upon the'part,of the latter would be catastrophic. Transportation.-The respondent sells electric power to several in- terstate railroads, including the Pennsylvania Railroad, the Pere Marquette Railway, the Michigan Central Railroad, the Grand Trunk Railroad, and the Ann Arbor Railroad. None of these roads is elec- trified. Testimony by representatives of the last three railroads named above shows that the power purchased by them from the re- spondent is used for the operation of block signals, of crossing pro- tection signals, of watering and coaling stations, and of various repair shops, and for the illumination of shops and stations. The testimony indicates that a cessation of the power supplied by the respondent would not result in a stoppage of the train service, but that it would cause the accumulation of repair work, that it would entail greatly increased operating expenses, and that it would necessi- tate the use of emergency equipment in place of the electrically op- erated block signals and other equipment, thereby greatly increasing the possibility of a break-down in the operations of the trains. Power supplied by the respondent operates lighthouses maintained by the Federal Government in Saginaw Bay, which is an arm of DECISIONS AND ORDERS 711 Lake Huron. Auxiliary equipment for these lighthouses is not suffi- cient to keep them operating in a normal fashion in case of a failure of the respondent's power. Shipping passing through the Bay would be to some extent hampered by such a failure. In addition, draw- bridges across the Saginaw River, which flows into the Bay, are lifted by power supplied by the respondent. These bridges are located in Bay City and Saginaw. One of the bridges in Bay City has no auxiliary equipment, and in the event of a power failure, 15 to 20 hours would be required to put it in operation. Stipulations in the record show that a substantial amount of freight from points outside of Michigan is shipped through Saginaw Bay, past the bridges in Bay City, to points in Saginaw and between Bay City and Saginaw. The respondent also serves electric energy to a public dock in Muske- gon, Michigan, on Lake Michigan. Communication.-The respondent supplies electric energy to the Western Union and Postal Telegraph Systems. Both of these com- panies receive and transmit messages into and out of Michigan. The respondent's energy is used by them for the operation of mechanical equipment used in the sending and receiving of messages, as well as for illumination and other purposes. They use their own power for the energy required for transmission of the messages. A failure of the respondent's power would require the sending of messages by hand, which in turn would require skilled operators who are not available at all of the telegraph offices. A representative of one of the two telegraph companies testified that in case of an unexpected cessation of the respondent's power, service would be restored to some extent in 3 or 4 hours, and to a full extent in a day and a half. The respondent supplies electric energy to the Michigan Bell Tele- phone Company, the territory of which includes part at least of the territory served by the respondent. During 1937, the company trans- mitted messages originating in Michigan to points outside Michigan, for which the total charges were $4,065,000. Approximately 30 per cent of these messages originated at stations supplied with energy by the respondent. The telephone company has auxiliary equipment which would maintain its services for an indefinite period. With regard to the illumination of some of its exchanges, however, it ap- pears that a sudden cessation of the respondent's power, at night, would leave them temporarily in darkness. In such a case, the serv- ice would be interrupted for a period of some minutes. The respondent supplies electric energy to seven radio broadcast- ing stations operating in Michigan. None of these stations has auxiliary equipment to substitute for the energy so supplied in case it is interrupted. All of them broadcast programs which originate in States other than Michigan and are sent to the station for re- broadcast. The amount of time devoted to such programs varies 712 NATIONAL LABOR RELATIONS BOARD between 10 and 53 per cent of the total broadcasting time of the stations in question. All but two of the stations broadcast electrical transcriptions which are sent to it from points outside Michigan, the time devoted to such programs varying from 10 to 30 per cent of the total time on the air. The programs broadcast by these stations include advertising matter for articles on sale to the general public, produced by commercial firms with principal places of business out- side Michigan. It should be pointed out, with regard to both communication and transportation, that many companies which use power supplied by the respondent, but which have auxiliary arrangements to take care of a possible interruption of that power, would have to rely on batteries, small motors, and similar devices. It can readily be seen that reliance on such makeshifts would create a continuing possi- bility of temporary break-down. Such a change to operations on an emergency basis in itself would constitute a burden and obstruc- tion upon these instrumentalities of commerce. Moreover, while each company, considering itself separately, might feel confident that it could procure sufficient additional equipment in case of an emergency, it may well be doubted, if all of them were faced with an interruption of service at the same time, whether all of their needs could be satisfied. Conclusions as to the respondent's relation to commerce It is evident from the findings above (1) that the respondent re- ceives vast quantities of coal, as well as other commodities, in inter- state commerce; (2) that the respondent ships a substantial amount of byproducts in interstate commerce; (3) that a labor dispute be- tween the respondent and its employees would seriously affect the flow in interstate commerce of these commodities and byproducts; (4) that a large area in the State of Michigan is almost entirely dependent upon the respondent for electric energy and gas; (5) that a cessation of the flow of electric energy and gas from the re- spondent, such as would tend to accompany, and has in the past accompanied, labor disputes between the respondent and its em- ployees (a) would tend to burden and obstruct the operations of various agencies of interstate transportation and communication by forcing them to use makeshift substitutes for their normal supply of power, as well as by causing, in some cases, temporary interruptions of service, and (b) would directly cause a cessation or curtailment of the operations of the businesses served by the respondent with power, which receive and ship commodities in interstate commerce, similar to that which would accompany simultaneous labor disputes in all of such businesses, thereby causing a substantial diminution in the flow of products in interstate commerce. DECISIONS AND ORDERS 713 The respondent contends that it has scrupulously maintained a policy of avoiding interstate connections, and that its intrastate. character is demonstrated by the extensive regulation by State agencies to which it is subject. It is also alleged in the respondent's answer to the complaint herein that, "it is required to serve all customers who demand or request its service, and that it is unrea- sonable and unlawful to determine respondent's status under said National Labor Relations Act based upon such remote and indirect consequences which respondent cannot avoid." However, the ques- tion for us to decide is, simply, what would be the effect upon com- merce of a labor dispute between the respondent and its employees.a It is clear that the effect would be immediate and extensive. This fact is clearly demonstrated by the strikes which have occurred in the past in restricted portions of the respondent's system. II. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America is a labor organization affiliated with the Committee for Industrial Organiza- tion, herein called the C. I. O. Its jurisdiction formerly included employees of utility companies. In the latter part of January 1938, it surrendered its jurisdiction over utility workers to Utility Workers Organizing Committee. Prior to that time it had chartered separate locals for the employees of the respondent, membership in the vari- ous locals being determined along geographical lines. Local 740, which filed the charge in this proceeding, included employees of the, respondent at, and in the vicinity of, Jackson, Michigan. Utility Workers Organizing Committee is a labor organization, likewise affiliated with the C. I. O. It admits to membership em- ployees in the public utility industry, exclusive of companies engaged in communication. It was organized in 1938 to take over that field which had formerly been within the jurisdiction of the United. The employees of the respondent who were formerly members of the various locals of the United have been transferred to correspond- ing locals of U. W. O. C. Members of Local 740 have become mem- bers of U. W. O. C. Local 101, herein called Local 101. On February 9, 1938, Local 740 surrendered its charter and received a charter as Local 101 of U. W. O. C. The other United locals since that date have similarly changed their affiliation, although at the time of the hearing, not all of the 12 separate locals had received their new charters from U. W. O. C. B Consolidated Edison Company of New York, Inc., et al. V. National Labor Relations Board, 95 F. ( 2nd) 390 ( C C. A. 2nd), where the court said: "But the problem is not to be approached from the standpoint of vicarious liability . It is to be approached as a question of fact, namely, what will be the result upon commerce of a labor dispute between the petitioners and their employees." 714 NATIONAL LABOR RELATIONS BOARD As noted above, the respondent objected to the motion of counsel for the Board to change the title of these proceedings, on the ground that such a motion involved a substitution of parties. It advanced the contention that the party which filed the charge was no longer in existence. Even if the respondent's contention is true and the ruling was in error, we do not see how it can affect the issues in this case, since Local 740 was in existence at the time the charge-was filed. Moreover, the evidence shows, that when Local 740 of the United transferred its affiliation to U. W. O. C. the entire structure of the local remained unaltered, and it continued with the same members, officers, and bylaws. It is clear that Local 101 of U. W. 0. C. is the same labor organization as Local 740 of the United, and that the union which filed the charge in the proceeding is still in 'existence. The respondent has at all times been aware of the changes in affiliation of the C. I. O. organizations. The contracts which it has entered into with them are discussed in some detail below in Section III-A. It is sufficient to state here that the first contract was made with the United Automobile Workers of America, a C. I. O. affiliate, herein called the U. A. W., and provided for a possible future change in affiliation of the contracting union. The subsequent change from the U. A. W. to the United was acknowl- edged by the respondent in a letter to the latter organization. Finally, on April 4, 1938, the prior agreement was altered and ex- tended by an agreement between the respondent and U. W. O. C., in which the first contract was referred to as "the memorandum of agreement made between said parties, or their predecessors." The respondent thus treated with U. W. O. C. as the proper party with whom to negotiate an extension of the.agreement originally made with the U. A. W.7 Independent Power Employees' Association is an unaffiliated labor organization, admitting to its membership only employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background of organization among the respondent's employees Self -organization of the respondent's employees first assumed defi- nite form early in 1937, in Bay City and Saginaw, two of the north- ernmost districts of the respondent's widespread system. Organiza- tion soon extended to Flint and Lansing, and later to Jackson and other operating centers until, at the time of the hearing in this pro- ceeding, 12 locals were affiliated with the C. I. O. through U. W. O. C. These locals were established in the towns mentioned above and in Manistee, Muskegon, Battle Creek, Alma, Owosso, Pontiac, and one 'For a similar situation see Matter of M. Lowenstein & Sons and Textile Workers' Organizing Committee, Local No. 65, C. 10, 6 N L R B 216. DECISIONS AND ORDERS 715 other town, the name of which does not appear in the record. At present, each local elects five delegates to the State or Joint Council, and from that council a five-man executive board is elected. Each local has its own bargaining committee for the adjustment of local grievances, while the executive board negotiates with the manage- ment at Jackson concerning matters of system-wide application. The respondent's employees in the Bay City area formed an or- ganizing committee in January 1937. The automobile workers in Bay City were at that time being organized , and the respondent's employees enrolled in the Flint local of the U. A. W., the jurisdic- tion of which had temporarily been extended to include Bay City. The respondent's Bay City employees , however, elected their own of- ficers, and set up their own nine-man committee for the purpose of negotiating with the respondent . Similar organizational activities began in March 1937 among the respondent's employees in Saginaw, a few miles south of Bay City. As in Bay City, the members of the present local were first enrolled as members in the U. A. W., but they elected their own officers and constituted a separate unit of utility workers. The respondent's employees in Flint began organizing in March 1937 and first enrolled as members in the U. A. W. In Lan- sing, the respondent's employees began organizing in February 1937, enrolling as members in the U. A. W. local, after they failed to obtain affiliation with the A. F. of L. The record does not contain details concerning the process of organization in the remainder of the 12 locals, but most of them took form subsequent to the agreement of June 8, 1937, which is discussed below. A conference between the respondent and representatives of the locals in Saginaw, Flint, and Bay City was held in Saginaw, on April 29, 1937. Vice-President M. W. Arthur and Assistant Gen- eral Manager A. E. Kriegemann represented the respondent, and the C. I. O. was represented by a group of operating employees and their U. A. W. representatives . The proposals of the C. I. O. as to wages and working conditions were presented and discussed. Further con- ferences were held on May 4, 5, and 10. On May 10, the respond- ent's vice president, D. E. Karn, was present, and urged that a con- sent election be held, under the Board's supervision, to determine whether or not a representative had been designated by a majority of the employees throughout the system . Karn pointed out that al- though the C. I. O. was requesting bargaining rights only for the employees at Saginaw , Flint, and Bay City, any wage increase granted would be made system-wide. The C. I. O. would not con- sent to an election , and the parties left the conference in disagree- ment. The C. I. O. communicated with Governor Murphy of Michi- gan and a meeting of the respondent and the C. I. O. was arranged and held in the Governor's office on May 11. Governor Murphy '716 NATIONAL LABOR RELATIONS BOARD heard the opposing contentions and suggested that negotiations be continued, but that in the event of another deadlock, the parties should return to him. Negotiations were resumed in Saginaw on May 12, 13, and 14. Toward the close of the meeting on May 14, the respondent requested an adjournment of negotiations until May 18. The C. I. O. protested against the delay and attempted unsuccessfully to communicate with Governor Murphy, then in New York, but suc- ceeded in reaching Homer Martin, of the U. A. W., who thereafter participated in the negotiations. On May 17, the respondent's repre- sentatives appeared at the Board's Regional Office in Detroit where, they claimed, the C. I. O. was to meet with them for discussion of a possible election. The C. I. 0., however, did not make an appear- ance at Detroit, claiming that it had made no agreement to meet there. The respondent returned to the Regional Office in Detroit on the fol- lowing day, May 18, while the C. I. O. waited in Saginaw, in accord- ance with the joint agreement of May 14. As a protest against the respondent's failure to attend the meeting in Saginaw on May 18, a strike was called at noon, May 19. - Switches were pulled in Saginaw, -Bay City, and some sections of Flint. Power was cut off and the power plants were picketed. At 9 o'clock that night, power and light service were restored following an arrangement made with Gov- ernor Murphy for a meeting with the respondent at his office the next day. Negotiations were resumed in Saginaw on May 21, when a meeting was scheduled for May 24, in New York City, at which Wendell L. Willkie, president of the respondent, and John L. Lewis, representing the C. I. 0., were to be present. No agreement as to wage increases was reached at the conference in New York, and fur- ther negotiations continued in Saginaw from May 25 to June 4. On .the latter date, the respondent's office employees in Flint, who had -enrolled during the formation of the local in that city, went on strike in protest against the respondent's insistence that they be omitted -from the bargaining unit. On June 8, negotiations were resumed in 'Washington, D. C., where, at about 11 o'clock that night, a contract was signed, the signatories being Willkie and Lewis. Word that an agreement had been reached and signed was not -immediately received by employees waiting in Flint, and at 2:30 a. m., June 9, another strike was called. Power was cut off in Flint, Saginaw, and Bay City, with the exception of circuits supplying hospitals, dairies, the sewage disposal plant, jails, and other insti- tutions. The strike did not cease until 5 or 6 o'clock in the after- noon of June 9. The agreement of June 8, 1937, applied to all operating employees of the respondent who were or might become members of the U. A. W. or its successor, applications already having been made to the parent organization, the C. I. 0., for charters covering utility work- DECISION'S AND ORDERS 717 ers. The agreement excluded all supervisory employees, both crew and general foremen, assistant foremen, load dispatchers, office em- ployees, clerks, accountants, secretaries handling confidential mat- ters, and appliance salesmen. The respondent agreed not to bargain collectively with any other organization during the life of the con- tract, which was to remain in force until March 1, 1938. It covered wage rates, hours, working conditions, and other matters, and es- tablished a procedure for the handling of grievances. In December 1937, as a result of negotiations, the agreement was modified in some respects. Also in December, the C. I. O. formally requested that February 1, 1938, be fixed as the date for the opening of negotiations looking toward a new agreement. Actual negotia- tions for this purpose were begun on February 10. Prior to the ex- piration date of the original contract, a 30-day extension period was mutually decided upon. Prior to the beginning of these negotiations in February, two other labor organizations had obtained some membership among the respondent's employees : the Independent, and International Broth- erhood of Electrical Workers, herein called the I. B. E. W., the latter being affiliated with the A. F. of L. The organization of the Independent is discussed at length in Section III-B below. The rec- ord in this proceeding does not show the form or extent of the organ- ization of the I. B. E. W. On January 20, 1938, the Independent protested to the respondent against further negotiations with the C. I. O. until majority repre- sentatives had been determined, although at that time the Inde- pendent had not sought an election. On February 3, the respondent replied to this protest, stating that it had unsuccessfully sought an election by the consent of all parties before the original agreement was signed with the C. I. O. in June 1937. In the same letter, the respondent pointed out that the I. B. E. W. had filed a petition for investigation and certification with the Board. Subsequently, on February 23, 1938, the Independent filed its petition for investiga- tion and certification. The I. B. E. W. filed its petition on February 2, 1938. On February 25, a temporary injunction was issued by the Jack- son County Court, in a suit brought by the Independent, restraining the respondent from entering into an agreement with the C. I. O. The C. I. O. filed an ancillary bill of complaint and-joined with the respondent in its motion to dismiss the Independent's complaint and to set aside the temporary injunction. On March 31, the re- spondent notified the C. I. O. that the "status quo" of their rela- tionship would be observed by it until the injunction was lifted or modified, but no longer than 10 days from the date of notification. The injunction was dismissed on April 2, 1938. 718 NATIONAL LABOR RELATIONS BOARD Not until the week preceding April 1 did the negotiations between the C. I. O. and the respondent, which began on February 10, reach the state of definite discussion of wage rates for the different classi- fications of employees. As the close of the 30-day extension period approached, and no agreement on the wage scale appeared im- minent, the C. I. O. requested continuation of the existing wage scale for a year. The respondent countered with an offer to "peg the wages" for a period of 3 months. No compromise was reached, and on April 1, members of the C. I. O. excluded the supervisory employees from a number of gas, steam electric, and other plants in Saginaw, Bay City, Flint, and Lansing, and assumed operation of the plants. They occupied these plants until April 4, 1938. On that day, Governor Murphy called a meeting of officials of the re- spondent and the C. I. O. in Detroit. At the Governor's suggestion, and because of the continued controversy concerning majority rep- resentation, the respondent agreed to extend the existing contract 4 months, or until August 4, 1938. B. Formation of, interference with, and support of the Independent; interference, restraint and coercion 1. The letter of June 11, 1937 At the time of the signing of the June 8 contract, no local of the C. I. O. had been started at Jackson, where the respondent's head- quarters are located; nor had any other labor organization displayed activity among the respondent's employees in the Jackson division. It is significant, therefore, that almost immediately after the sign- ing of the June 8 contract, an undetermined number of Jackson employees should have received a mimeographed letter, Board Ex- hibit 18, purporting to come from Room 306 of the Consumers' Power Company Building, the executive headquarters of the respondent. The letter is dated June 11, 1938, and reads as follows : JACKSON, MICHIGAN, June 11, 1937. DEAR FELLOW EMPLOYEE : Events of the past few weeks have given cause for grave con- cern to all employees of Consumers Power Company. By this time, no doubt, you have received a copy of an agreement of limited scope between Consumers Power Company and the United Automobile Workers of America. You, no doubt, appre- ciate that in fairness to all employees, the Company will extend to all employees any advantages accruing as the result of this agreement. We believe that the general attitude of the majority of the employees in this connection is one of genuine loyalty to the Company and its management. Appreciating the peculiar na- DECISIONS AND ORDERS 719 ture of the business and mindful of the many unfair and, in some instances, vindicative [sic] measures it has been subjected to, we feel that we employees are much better qualified to negotiate with the management concerning any grievances, working condi- tions, rates of pay, etc., that may arise. - The recent trend, as evidenced by the Wagner National Labor Relations Act, indicates that henceforth relations between em- ployee and employer will be dealt with by collective bargaining between the management and representatives of employee groups. In this event, what is the position of the average, responsible and fair employee of Consumers Power Company? In our opinion the following is about our position. The employee may elect not to join any union or other form of labor or employee organization. In that event he may later, through no fault of his own, find himself without adequate representation. Or, the employee may elect to join one of the existing labor organizations, such as the A. F. of L. or the U. A. W. A. In that event, based upon the history of the last few months, he may find his relations with his employer handled by representa- tives, not of his own choosing, having no knowledge of the busi- ness and working conditions, whose actions and decisions are dictated by outside influences and whose interest is apparently mainly of a pecuniary character. Or, the employees may elect, as we hereby propose, to band themselves together in a solid, loyal and truly representative employee organization free of any outside influence. We feel that such an organization with representatives in all departments and all divisions can better represent and settle fairly with man- agement any and all questions that may arise. We are enclosing a confidential card which we ask that you return to us at once signifying your cooperation in this under- taking. Upon receipt of these cards, it is the intention to pro- ceed at once to the formation of such an employee organization. Yours truly, (s) CONSUMERS POWER EMPLOYEES' COMMITTEE. Accompanying this letter was a pledge card, Board Exhibit 19, which reads as follows : To CONSUMERS POWER EMPLOYEES' COMMITTEE : I am fully in accord with the statements made by the Com- mittee for an Employee Organization to protect my interests and I hereby pledge my cooperation and assistance. Signed -------------------------- Department---------------------. Division------------------------ 720 NATIONAL LABOR RELATIONS BOARD The return envelope, Board Exhibit 20, accompanying the letter and pledge card, reads : Consumers Power Employees' Committee, Consumers Power Company Building, Room 306, Jackson, Michigan. The identity of the "Consumers Power Employees' Committee" is not revealed in the record. Vice-Presidents Arthur and Karn denied knowledge of the letter, both as to authorship and distribution. Arthur testified that for the past 2 years room 306 has been used as a storeroom. In June 1937, room 307 was occupied by Supervisor Haroldson, who has charge of gas sales and is employed by Common- wealth & Southern. The other adjacent office was an assembly room for meter readers and appliance salesmen. Executives of the respond- ent and Commonwealth & Southern have offices on the same floor. Arthur declared that no record of mail distribution is kept, and that he had no knowledge as to the disposition of any return cards which might have been received in reply to the letter. An undetermined quantity of the return cards were in the office of John Markle, general foreman of the Jackson Division. Markle has complete charge of all crews operating in the Jackson Division. There were 20 such crews at the time of the hearing. His imme- diate superior is L. E. Southard, electrical superintendent of the same division. Markle hires, discharges, and transfers, and is the man to whom all crew foremen, city foremen, and line-crew employees under his jurisdiction look for supervisory advice and instruction. Markle had knowledge of the letter. While being examined by counsel for the Board concerning the distribution to the employees of copies of the June 8 contract, he testified that he had received a "group" of the "books" to be passed out to the men, and that a letter accompanied the books. Counsel for the Board handed Markle Board Exhibit 18, and inquired if it appeared to be a copy of the letter which, according to his testimony, had accompanied the con- tracts. Markle examined the document and returned it to Board's counsel with the comment, "Well, this letter was posted on the bulletin board." Q. At the service plant? A. Yes. Q. At about the same time? A. Yes. Q. For how long-a couple, a day or two? A. I wouldn't be surprised if one of them was on there yet. Q. At any rate, it was posted? DECISIONS AND ORDERS 721_ A. I don't know for sure. Yes. I don't know for sure whether- it is down there. Q. Who posted it, did you post it? A. Well, that is something I couldn't say.... Q. Do you know where it came from? A. No not directly. Following a brief recess, Markle was questioned further about this. letter on redirect examination by the respondent's counsel. This time he vigorously denied ever having seen the letter, insisted that he had not read the exhibit when it was presented to him by counsel for the- Board, and accused the latter of "pulling a fast one" on him. At- this point the Trial Examiner declared for the record, ". . . from my own observation, I know that the witness did read at least the first page of that letter." Earl C. Parker, Markle's assistant, who is himself in charge of a . number of crew foremen, testified for the respondent some days later. When shown a series of bulletins and letters from the management,. already in evidence, Parker denied ever having seen them, although- some of them should have come to his attention as a supervisor. He was shown Board Exhibit 18 and denied recollection of having seen it anywhere. He was then shown Board Exhibit 19, the return card above referred to. This he identified, "Yes, I remember seeing that, seeing that card there. I saw that." Asked if it was in the posses-- sion of some employee, he replied, "No, if I remember right, there- was quite a bunch of those. It was down at the service building one time." Q. Where in the service building? Markle's office? A. No, I don't think they were in Markle's office, I think, they were,-well, it would be Markle's office, too. Although from the testimony of Parker, reasonable doubt may ex- ist as to the accuracy of Markle's recollection that Board Exhibit 18. was posted on the bulletin board by him or anyone else, we find that- he had knowledge of the letter, and that the return cards were in his- office. Leo C. Jensen, one of the three employees who later assumed leadership in organizing the Independent, admitted that he had, heard that the letter had been circulated, had read it, and had taken part in discussion of its contents with other men in the gas produc- tion department. It is significant that Jensen, Harry Bowersox, and, Ed Youman,8 the three men had led the organizational activity for the Independent, all came from the same department, one of those in which the letter of June 11 is known to have been read and discussed.. 8 This name also appears in the record as "Youmans" and "Yoeman " 722 NATIONAL LABOR RELATIONS BOARD We find that the respondent caused the letter of June 11, the card, and the return envelope, to be circulated among its Jackson em- ployees. We find further that they were an important factor in the formation of the Independent. Although some time elapsed between the issuance of the letter and the taking of the first formal steps to- ward formation of the type of organization proposed by it, the letter clearly showed the attitude of the respondent regarding the type of union which it favored. This aspect of the case is further discussed in Section III B 7, below. 2. Early anti-union activity of Markle Prior to the actual incorporation of the Independent and the solici- tation of members in its behalf in Jackson, Markle pursued a course of conduct which was calculated to, and did , reveal to many of the respondent's Jackson employees that the respondent vigorously dis- approved of the C. I. O. The effect of this campaign was to clear and harrow the ground for the fostered growth of the Independent. A C. I. O. local was formed in Jackson during July 1937. On August 4, according to his own admission, Markle attempted to at- tend a C. I. O. meeting, and sharply denounced a number of em- ployees because of their union activity. Among the employees warned by Markle on this occasion, and whose testimony was substantially confirmed by Markle himself, were Clarence E. "Red" Burke, Verne "Butch" Devine, and Murl Bolenbaugh. Markle stood across the street, observing the men as they came to the meeting. Burke testi- fied that Markle told him that he "was making a hell of a big mis- take," and urged him to "use his head." Burke overheard Markle tell other employees "not to be a damn fool." Bolenbaugh testi- fied that Markle "wanted to know if I didn't think I was making a mistake, and that these C. I. O. fellows was pretty smart, and that they was smarter than he was and for me to watch my step." Markle's own testimony is significant. He admitted that on "the clay of August 4th,-on Wednesday, there was passed around ... in a whispered voice about a union meeting . . . I didn't know at that time there was any union activities in the Jackson division . . . I went down there of my own personal self to see what it was all about . . . I was on my own time, figured it was on my own time .. . I went up in the hall and looked around . . . nobody, that I knew, so I came back down ... and went across the street and stood around a little while . . . Burke was surprised to see me. He came over and talked to me a few minutes . . . They didn't like my language, I guess, and they went across the road. " Markle admitted express- ing himself in vigorous terms, but indicated that his words were mainly addressed to an organizer with Burke; and he admitted hav- DECISIONS AND ORDERS 723 ing about the same talk with employees Devine, McFayte, and Bolen- baugh. He declared that the men "kept milling around waiting for me to leave, or something, that is my decision of it, anyway, so I finally went on down the road." In view of Markle's admissions, we believe the testimony of the C. I. O. members described above. On the following Friday, August 6, when employees came to him for their pay checks, Markle admitted that he "asked if they would all wait a second." The door was closed; about 60 men were present. "I held one pay check up in front of me, asked them to do the same. I . . . asked them if that didn't look like a pretty good pay check ... I told them there wasn't a man in the crowd that ever worked for me, that ever had to buy me a glass of beer, cigar, or a loaf of bread, to hold his job, he never would have to." His meaning, he admitted, was that "no man had to join a union to hold his job with the power company." Thus, Markle, by positive action, demonstrated his resentment against the respondent's employees joining the C. I. O. 3. The transfer of Clarence E. Burke When Burke reported for work the morning after the meeting of August 4, he was transferred by Markle from the crew on which he had served continuously for 8 years . He had been attached to the crew known as "Oliver's," one of the two crews classed by Markle as being "top" or special crews in the Jackson Division , maintained for work "on all energized wire." The remaining 18 crews under his supervision, according to Markle's description , "work out on rural lines where there is no energized wires for them to come in contact with. In other words, they work what we call everything dead." At the time of Burke's transfer , Oliver's crew consisted of two first-class linemen, of whom Burke was one, two second -class linemen, one apprentice linemen, and one groundman , with a crew foreman in charge. The crew to which Burke was transferred on August 5, and with which he remained for 2 months, until he was returned to his old crew following a grievance meeting with the management, was known as Gilmore's crew. L. M. Gilmore is listed as a first-class lineman, but acts in the capacity of a foreman . Until Burke's temporary transfer to it, Gilmore's crew had consisted of Gilmore and two groundmen. At the time of the hearing it was again a three-man crew. Gilmore himself described his job as that of "maintenance of street lighting, and taking care of underground vaults." Markle admitted that he transferred Burke to Gilmore's crew on August 5. The reasons which he gave for the transfer , however, are not wholly consistent. He first declared that, having observed Burke to be active in the C. I. 0., and having placed him in temporary 134068-39-vol. ix-47 724 NATIONAL LABOR RELATIONS BOARD charge of the crew the previous Monday for the week of Oliver's vacation, "I knew it was no place for a crew foreman to be, acting as an organizer and running a crew." He later explained that Burke was transferred to Gilmore's crew, "especially that date, to put in a primary metering installation for the Hardy Manufacturing at Hud- son." He insisted that Burke's experience was needed on this job. The respondent offers no testimony to show that the efficiency of Oliver's crew suffered during the first 3 days of that week, al- though Burke had joined the C. I. 0. in July, or that Burke had attempted to organize on company time. The contention that Markle was sincerely concerned with the propriety of Burke's seeming to serve two masters fails to explain why Burke, when the regular fore- man returned from his vacation,' was not returned to the position which he had filled on Oliver's crew for 8 years. Upon completion of the brief Hudson job, Gilmore's crew returned to Jackson, and resumed the task at which it had been occupied since the preceding April, the removal of steel trolley poles along Jackson's main street. This work consisted mainly of cutting down the poles with acetylene torches and trucking them to the poleyard, and was hardly on an equal plane with Markle's definition of a top lineman's customary duties. During the period before his return to Oliver's crew, Burke was also assigned to the task of cleaning insects from the boulevard lighting globes. This assignment was made in the fall, although Markle testified that this work was ordinarily performed "right after Christmas and in the summertime, early spring, rather, right after the smoke season." This variance from custom is not explained in the record. Burke testified that he felt this assignment to be "humiliating" for a top lineman, and that comment upon it became general in other parts of the system. It is difficult to conform the facts surrounding Burke's demotion in duties to any explanation but that it was an expression of resentment against his union activities and an attempt to discourage such activi- ties. Soon after the transfer, Markle passed by Burke and Devine at the service station and asked "how all the rats were." When Burke inquired as to which one he meant, Markle replied, "If the coat fits you, you can slip it on." We are persuaded that the transfer of Burke described above was it demotion, and that it was made with the purpose of discouraging union activity. 4. The poleyard transfers The poleyard is a storage area for poles, transformers, and pipe used in the Jackson Division. Poles of varying lengths are brought into the yard by rail, piled on bunks and piers, where they remain until hauled away for line construction jobs. At one corner of the DECISIONS AND ORDERS 725 yard a large stock of transformers is stored; in one of two small buildings transformers are cleaned and repaired, while in the other pipe and sundry supplies are kept. One crew, under Foreman Wayne Frushard, is regularly assigned to the poleyard. This crew unloads and draws poles, and since late in 1936 has spent much time at the task of replacing the old cement piers which are inadequate to support the weight of the poles which had increased as the respondent supplanted cedar with pine. Markle testified that the work of replacing the old piers was given to em- ployees who otherwise might have been laid off during slack periods in line construction, instead of employing an outside contractor and labor. Respondent Exhibit 42 contains a list of employees who have worked at various times at the poleyard from January 1, 1937, to May 9, 1938. This exhibit, however, does not disclose the exact nature of the work which.the men performed on the dates cited. It appears, for example, that on infrequent occasions an entire ,crew may, in the course of its regular line construction duties, put in all or part of a day at the poleyard loading the poles necessary for its job. Despite Markle's insistence that work in the poleyard is more desir- able than digging holes for poles, or climbing the creosote-impreg- nated poles on a hot day, his own testimony shows clearly that, with the exception of the few who have charge of work there, steady employment in the poleyard ranks below that of construction and maintenance crews. In commenting upon Frushard's crew he stated : ". . . when these men that I gave Frushard showed ability to want to go ahead, could go ahead, I take them off of there and put them in another ground crew that was putting on arms and things like that, gave them a chance to work up." Frushard's crew, at the time of the hearing, was composed of em- ployees Niles M. Sowle, William Tuippi, and one Halsey. Markle testified that these men were assigned to this crew because they had been given ample opportunity to become linemen, but had lacked the necessary qualifications. Although some significance might be at- tached to the fact that both Tuippi and Halsey were suddenly discov- ered to be lacking in linemen's requisites shortly after they joined the C. I. 0., in 1937, it cannot be found that their transfer to, or con- tinuance in, the poleyard was directcd'at their union activity. The case of Sowle is discussed in Section III B 5 below. Verne Devine, whom Markle admitted having seen with Burke on the night of August 4, was ordered to the poleyard Friday morning, August 6, where he cleaned transformers that day and August 9, before being transferred to Oliver's crew. Until the transfer of August, Devine had served on the same crew for about 8 years, al- though for a part of that time he was under a different foreman. 726 NATIONAL LABOR RELATIONS BOARD There is no evidence that he had ever before been assigned to the task of cleaning transformers. Devine is rated as a "top" lineman. Husker's crew, to which he had been attached, is the crew which, with Oliver's crew, was characterized as "special" by Markle. It does not appear that, with the exception of his 2-day assignment in the poleyard, Devine's transfers from Husker's to Oliver's crew can be considered as demotions, either in fact or in effect. Markle's explanation of the 2-day poleyard episode, however, is confused and conflicting. He declared that Husker had asked to have Devine "transferred out," because he was "slowing up on the job." Markle asserted that prior to the transfer he and Husker had discussed Devine's membership in the C. I. 0., and that Husker be- lieved Devine was using "his affiliation with the union as a leverage to lay down on the job." Furthermore, he testified, he had himself observed Devine "absolutely stand around on top of the pole and not do a thing, waiting for somebody to catch him standing there." Markle placed his discussion with Husker as at least 6 days before the meeting of August 4. This testimony is in serious conflict with his following answer on cross-examination : Q. Did you know that Devine was a member of the C. I. O. when you took him off Husker's crew and put him on Oliver's? A. No, sir, I didn't. It is clearly established that Markle did see Devine, among others, at the C. I. O. meeting of August 4, and that, among others, Devine was summarily transferred to other duties, in the poleyard. There is no evidence that Devine, when ordered to the poleyard, was in- formed that he would later be attached to Oliver's crew. Of the six men in Husker's crew in early August 1937, four had joined the C. I. O. at or before the meeting of August 4: Oscar W. Anderson, Willard Freemire, William Hendershot, and Devine. A] t but Devine soon resigned from the Union. Devine, as has been noted, was transferred on the following day to the poleyard, and eventually to another crew. Freemire went to the poleyard on August 6, and remained there August 9 and 10, the next 2 working clays. All of Husker's crew were in the poleyard on August 10, but the testimony shows that the service on the 10th was in the regular line of duty in obtaining materials for construction work. Freemire, called as a witness by the respondent, had been elected an officer of the C. I. O. the night of August 4. He was present at Markle's pay-check lecture. He stated that he did not consider the assignment of August 6 and 9 to be a punishment or unusual, although he could not recall that he had ever been removed from his crew for poleyard service since he had joined Husker's gang in Julie 1936. Excavating piers, according to Markle's own testimony, is i DECISIONS AND,ORDERS 727 not work regularly assigned to second-class.linemen, the rating held by Freemire. Markle's _ explanation of Freemire's transfer , on August 6, that Husker's crew was "overloaded," is weakened by the testimony of , Anderson, first-class lineman called by the respondent, who admitted,that, at the time Devine and Freemire were transferred, Husker's crew was-consistently busy in the normal way. Anderson :was ,ilot .present, at, the C. I. 0. meeting of August 4, but admitted, having heard that Markle was there. He also admitted that. sometime. during August, and obviously, before he resigned from the C. I. 0., Markle stopped him in front of the service building and asked if he belonged to the C. I. 0., to which he replied that he did. Hendershot, another first-class lineman on Husker's crew, admit- ted never having seen a first-class lineman, with the exception of Devine, transferred to the poleyard for detached duty. Hendershot had joined the C. I. 0. in July, paid dues for the month of August and then let his membership lapse. He was present at the meeting of August 4, and admitted having heard "some things" about Mar- kle's sending C. I. 0. members to the poleyard. We find that Devine and Freemire were transferred to the pole- yard by the respondent for the purpose of discouraging activity on behalf of the C. I. 0.; that Freemire withdrew from the C. I. 0. because of his transfer; and that Anderson and Hendershot with- drew from the C. I. 0. because of Markle's hostility to C. I. 0. activity manifested by the transfers and attendant circumstances, described herein. Further evidence of a purpose on the part of the respondent to discourage union activity by transferring new C. I. 0. members to the poleyard, is found in testimony concerning Meier's crew, also under Markle's supervision. Early in August 1937, Meier's crew included Tuippi, Simmons, Hammond, Thompson, Murphy, and Sponsler. All but Sponsler had joined the C. I. 0. on or before August 4, and of these five, all but Simmons attended the union meeting that night. Hammond was transferred to the poleyard the day following the meeting, and was kept there August 5, 6, 16, and 17. He was on vacation during the interim between August 6 and 16. Murphy was assigned to the poleyard August 6. Thompson worked in the poleyard from August 9 to 16. Hammond was secretary of the newly formed C. I. 0. local, and Murphy was a "trustee." Soon after their poleyard assignment, however, Hammond, Murphy, and Thompson withdrew from the C. I. 0. The three men were called to testify by the respondent ; all of them denied dropping out of the C. I. 0. because of the pole- yard incident, and Murphy, although he joined the C. I. 0. on August 3, explained his withdrawal therefrom as follows: "It seemed 728 NATIONAL LABOR RELATIONS BOARD like all the rest of the members had petty grievances of some sort they were nursing, and I didn't have any grievance like the rest of them." Murphy talked with Markle on Monday morning, August 9, the next working day following his assignment to the poleyard, and was thereafter instructed to join another crew, stringing poles in the country, until Meier's crew should be reassembled on August 16. None of the men on the crew to which he was temporarily as- signed had been present at the C. I. O. meeting of August 4. Under all the circumstances, we find that the respondent induced the with- drawal of Murphy from the C. I. O. by transferring him to the poleyard. _ Hammond quit the C. I. O. upon return from his vacation, and was then transferred back to Meier's crew. Although denying that his poleyard experience had anything to do with his withdrawal from the C. I. 0., Hammond admitted that he had heard others com- ment upon Markle's presence outside the union meeting, and that lie had been present when Markle lectured the employees on their pay checks. Asked by the Board's counsel, "Did you get the idea that Markle was friendly towards unions, from his statements there," Hammond replied, "Oh, I don't know-it was his own opinion." Recorded facts in Respondent Exhibit 42 refute Markle's testi- mony that Hammond was sent to the poleyard only because other members of Meier's crew were on vacation. Hammond was assigned there 2 days prior to the vacation period, and remained there 2 days after Meier's crew was reassembled following the vacation. In view of all the circumstances, and because Markle's testimony is in con- tradiction with his own records, it must be found that Hammond's transfer to the po]eyard was designed to induce his withdrawal from membership in the C. I. O. Thompson was in the poleyard from August 9 to 13, during the week that other members of his crew were on vacation. He ad- mitted having talked privately with Markle, following the general foreman's pay-check lecture on August 6, and recalled that both Hammond and Murphy had been transferred from his crew prior to the vacation week. He insisted that his conversation with Markle did not relate to the poleyard transfers. While the evidence is in- sufficient to show that the assignment of Thompson to the poleyard was an act of discrimination on the part of Markle, we find that Thompson's resignation from the C. I. O. is attributable to the action taken against his crew mates Hammond and Murphy, who were officers of the newly formed C. I. O. local. Simmons worked in the poleyard during the week following his vacation, but admittedly at his own request. On the day of his return from vacation, he was instructed to report for work in Hud- DECISIONS AND ORDERS 729 son. He protested against this transfer to another town, declaring that he was being removed from Meier's crew in disregard of seniority. Markle pointed out that he was handling such matters, but permitted Simmons to remain in Jackson another week, to take care of personal details, and work in the poleyard. The record shows that both Thompson and Murphy were employed after Sim- mons, but Markle maintained that Simmons had been originally hired for Hudson service, although he had subsequently exchanged jobs with a Jackson employee, and that therefore he was properly selected to return to Hudson. Markle's denial of knowledge that Simmons was a C. I. O. member is contradicted by the testimony of one of his own foremen, Robert M. McDonald, in charge of the two Hudson crews. Donald W. Darby, a Hudson employee, testified that McDonald, just before Simmons was transferred there, informed "the whole bunch" that "we have got a C. I. O. member coining down," and told them that every time he was thrown in the lake they would get a case of beer. McDonald admitted the incident in substance, but characterized the offer as a joke. While in Jackson, McDonald ex- plained, he had been told by Markle that Simmons was to be trans- ferred to his supervision. At the same time he overheard men in Markle's office "laughing and talking" about "someone offering a case of beer to anybody ... that threw any C. I. O. member in the creek or river or lake, ... and I don't know to this day who offered the case of beer." McDonald declared that he almost always tells "the boys anything I found out in the way_ of gossip." There is no evi- dence that Simmons was ever molested. The testimony of many witnesses shows that it was known gen- erally in the Jackson District that transfers of C. I. O. members to the poleyard had been made. As noted above, crews commonly made short stops in this storage area to get supplies. On these visits, they were able to see that the transferred men were no longer engaged in their regular duties. The events described above persuade us that Markle made use of the device of transferring men to the poleyard for the purpose of discouraging the C. I. O. activity which he had discovered. It also appears clearly that the device was effective in several cases. It should be noted that all six men who, as mentioned above, withdrew from the C. I. O. in mid-August at the time of or subsequent to the poleyard transfers, later became members of the Independent. Although some of the men in question testified that the transfers were not the cause of their dropping from membership in the C. I. 0., we do not believe this testimony. The series of events de- scribed above convinces us that these men were intimidated and that that intimidation continued to have effect up to the time of the hearing before the Trial Examiner. 736 NATIONAL LABOR. RELATIONS, BOARD 5., The. transfer of Niles M. Sowle On or about September 1, 1937, Lisle 'Goff, a gas trouble man at Jackson, was called into Markle's 'office. Goff is a' brother-in-law of Sowle, an apprentice lineman mentioned above as being a member of Frushard's poleyard crew. Goff; who is a member of the Inde- pendent, testified that Markle first inquired if ' Sowle was a relation of his. . Upon receiving an affirmative answer, Markle said, "If you do see him-will, you try and see him and tell him not to have any- thing to do with the C. I. 0."; and further, "if he' thought anything of his job, tell him not to have anything to do with the C. I. 0." Goff's testimony was unrefuted. About a month later Sowle was instructed by Markle to report for work at Jonesville. Sowle protested against the transfer, pointing out that men with less seniority than himself were being kept in Jackson. Markle told him that he was being sent to Jonesville as a promotion. Sowle reported as instructed, and was sent out with a line truck and crew, supervised by Foreman Myles Beattie. That noon, according to his testimony, Sowle found his lunch box "full of grease," and that night the air had been let out of his automobile tires. The following noon, he testified, "after I had ate part of my sandwiches I found there was something in them which smelled like kerosene." He was sick that night, and under the care of a physician for 2 weeks thereafter. Immediately upon his return to Jackson from Jonesville, Sowle reported his experience to Burke, head of his local, and Burke entered a complaint with Superintendent Southard, Markle's superior.. When Sowle reported for work 2 weeks later, Southard "apologized," to him, and said "it wouldn't happen again." Sowle was told that Foreman Beattie had been laid off for a week, that half of the crew at Jonesville had been "put on' breaking up scrap-iron at the waterworks at Reading, and the other half had been put tearing down the chimney in Jonesville." Sowle was questioned on this point by the respondent's counsel : Q. And you understood, did you, from Mr. Southard's con- versation that the punishment that he spoke of as to the crew and the foreman was because of their action in connection with you? A. That is what I understood. Foreman Beattie and members of his crew were called by the re- spondent, and all denied tampering with Sowle's food or tires. Beattie, however, admitted that he had been told by Parker, prior to Sowle's transfer from Jackson, that a new man was being sent to him and "that he belonged to the C. I. 0., to be very careful there was nothing done to injure him any way." He denied knowledge as to why Parker should voice this caution, "other than he always tells me to be very careful of any new man he gives me." Parker admitted DECISIONS AND, ORDERS the advice, and gave as a reason for it the fear of possible accident, and the fact that he was "proud of the safety record." Questioned further by the Board's counsel: Q. When you told Beattie that Sowles was coming over and he was a C. I. O. man, why did you bother to go on and warn him against discrimination? A. I thought that he ought to know if he belonged to the C. I. O. I understood that he did, that he was a C. I. O. mem- ber. Being a foreman of a crew, I thought it was to his advan- tage to know that he belonged to the C. I. O. Although Southard assured Sowle that Beattie had been punished by a 1-week lay-off, it is revealed by Board Exhibit 64, his' pay-roll record, that the latter was in fact rewarded. On the Friday prior to October 18, Southard informed him that he would be laid off the following week. During the week of this announcement, Beattie was credited with 12 hours.overtime at time and a half. He was' absent from duty from Monday through Friday, October 18 to 22, but on the succeeding Saturday and Sunday put in 8 hours at time and a half and 8 hours at double time. During the week preceding October 18, he earned $19.80 above his regular weekly rate, and during the week of his lay-off he received $30.49. The exhibit shows that for the 3-week period preceding, during and following his lay-off, he earned the sum of $138.60, an average of $2.20 per week above his regular weekly rate. Beattie testified that during the week preced- ing his appearance on the stand he got in 3 hours overtime, and that some weeks he averages more, and some less. It is evident that Beattie, in effect, received a 5-day vacation with`pay. We are convinced that the transfer of Sowle to Jonesville was made because of his membership in the C. I..O., with the, expectation that he would be mistreated there. The warning given to Sowle through Goff, the advance notice of his arrival in Jonesville as a C. I. O. member, and the other facts described above leave room for no other conclusion. Markle's active efforts to discourage membership in the C. I. 0., in the Jackson Division, were the subject of negotiations 'between management and C. I. O. representatives at a meeting on October 12. The latter demanded that Markle be discharged. This action the management refused to take, despite the fact that Southard had given him a warning in a letter dated August 9. Arthur testified that on the same day, October -12, he threatened Markle with discipli- nary measures "if he would be guilty of any such discrimination in the future." On the following night Arthur called a meeting of managers and general and crew foremen, "to acquaint these men with their responsibility to the Company in maintaining a neutral 732 NATIONAL LABOR RELATIONS BOARD attitude toward any labor organization." Subsequent to October 12, Markle engaged in no further anti-union activity, nor were any com- plaints made by the C. I. O. concerning such activity on his part. 6. Other discouragement of union activity The record contains evidence of other incidents of interference and coercion on the part of responsible agents of the respondent, although mainly of minor and cumulative nature. These occurrences indicate that, while its activity became less apparent, the respondent continued to express disapproval of, and to discourage membership in, the C. I. 0., not only subsequent to Southard's letter to Markle of August 9, but after Arthur's warning to all foremen in October. Donald W. Darby, a Hudson employee, testified that in mid-Janu- ary 1938, he was interviewed while on the job by McDonald, city foreman at Hudson. McDonald called Darby to his car, and asked him why he had joined the C. I. O. Darby replied that he did not like the way things were being run down there. McDonald told him, "Well, you know I will catch the- devil for it." McDonald admitted Darby's testimony in substance, but explained that he feared Darby had something against'him personally. Some indication of Foreman McDonald's early attitude toward the C.-I. 0., before the Jackson local was formed, is established by the unrefuted testimony of Clark D. Bolenbaugh, a Hudson employee. Bolenbaugh declared that when McDonald passed 'out printed copies of the June 8 agreement to employees in Hudson, he said, "We wasn't under those agreements and we didn't have to sign up anything, that we would get our same rights." McDonald's active support of the Independent is discussed below. 7. Organization of the Independent We have previously discussed the responsibility of the respondent for the letter of June 11, 1937. The events which followed its issu- ance show its connection with the formation of the Independent. The Independent first appeared in the open on or about Septem- ber 21,' 1937. The three leaders were Leo C. Jensen, Harry Bower- sox, and Ed Youman, all maintenance men employed at the respond- ent's gas, production plant in Jackson. Youman became the first president, and was later succeeded by Jensen, who was president at the time of these proceedings. Youman was not called to testify at the hearing. Although both Jensen and Bowersox testified that they had entertained the idea of such an organization, and Jensen de- clared that he had even discussed it, prior to June 1937, it must be borne in mind that no concrete steps were taken with regard to for- mation of the Independent until after the receipt and discussion of DECISIONS AND ORDERS 733 the letter of June 11, in effect a circularized proposal from the man- agement. During the summer following the issuance of the June 11 letter, Bowersox consulted Wirt King, Jr., who was at that time a member of the firm of counsel which represented the respondent in these pro- ceedings, with reference to the formation of an independent organi- zation of the respondent's employees. Bowersox did not testify as to this conference with King, but Jensen, to whom Bowersox reported, recalled that Bowersox understood that King "could be retained for that purpose." There were no further activities toward the forma- tion of an organization, however, until after the end of the summer, and the commencement of activity on behalf of the C. I. O. in Jackson. Bowersox and Jensen sent invitations to employees throughout the system to attend a meeting, scheduled for September 21, at the Colonial Theatre in Jackson. On that date about 200 employees gathered to hear one Joe Allen, an employee of the Michigan Bell Telephone Company, describe the set-up of the independent organi- zation of that company. Jensen testified that Allen had been sug- gested to him by some other employee. Wendell Bather, plant chemist at the Jackson gas plant, presided, at Jensen's request. Rep- resentatives of various departments were selected at this meeting, to convene at a later date. Among the supervisors and foremen who attended the Colonial Theatre meeting were Parker, Markle's assistant; Joseph A. "Red" Sheets, in charge of three tree-trimming crews and their foremen; and McDonald, in charge of the crews and foremen at Hudson. Sheets was nominated "for some office," but did not accept. McDonald was selected as a Hudson representative. In direct contrast to Markle's vigorous disapproval of employees joining the C. I. O. and his sur- veillance of that organization's meeting on August 4, the attendance and participation of his assistant Parker and two other supervisors at the first gathering of the Independent served as genuine support, by agents of the respondent, to the latter organization. Although the exact sequence of events is not clear, it appears that soon after the Colonial Theatre meeting "petitions" were passed among employees in the Jackson Division upon which they indicated their support of an independent organization. One of these peti- tions appears in the record as Board Exhibit 36, and was drawn up, according to his own testimony, by McDonald. The typewritten heading of this exhibit originally read : We, the undersigned are interested in an Independent Labor Barganing (sic) Organization, and authorize K.' Reed and,R. McDonald to act as our representative. 734 NATIONAL, LABOR RELATIONS BOARD McDonald called a meeting of all his Hudson employees, following the Colonial Theatre gathering, outlined the purpose of the Inde- pendent, and then helped Kenneth Reed, a Hudson employee, "line up" some of the men in his crews. A majority of the 26 employees whose signature appear on Board Exhibit 36 subsequently became members of the Independent, although the petition itself was never returned to the officials of that organization. It is clear that Mc- Donald, a supervisory employee, took an active part in the forma- tion of the Independent, and contributed his support to it. Sheets has charge of the respondent's tree-trimming crews in the Jackson Division, consisting of three crew foremen and their 14 men, and is under the immediate supervision of Markle. Sheets ad- mitted having attended the Colonial Theatre meeting with his su- perior, Parker, and an employee, Kenneth Meek, and that he was then nominated for some office but did not accept. Frushard, fore- man of the poleyard crew, testified that Sheets and Meek drove into the yard one morning, during working hours, in Sheets' truck, and that Meek got out and handed a sheet of paper to Frushard's truck driver. The driver could not read without glasses and passed the paper to his 'foreman, who read the heading aloud. The text of the heading, according to Frushard's recollection, was "I am in favor of an independent union and I will not join any other." Frushard tes- tified that he declined Meek's invitation to sign it himself. Frushard also testified that Sheets asked Verne Stanfield to sign, and that Stanfield did so. Sowle, who was then working in the poleyard, testified substantially as did Friishard. Meek admitted the incident in part, recalling that "somebody" whom he could not identify had given him the petition to be circulated at the service building, before accompanying Sheets to the poleyard that morning. I Meek denied, however, that Sheets knew anything about his possession of the pe- tition. Sheets denied any knowledge of the petition or that he had asked for the signature of Stanfield. Stanfield was not called on to testify. Both Sheets and Meek are in substantial agreement that their main errand, that morning, was to visit the poleyard and other crews before Meek. took over a truck and tree-trimming crew as foreman. In view of the fact that Sheets and Meek were close friends and had gone to the Colonial Theatre meeting together, and the fact that no steps had as yet been taken by the leaders of the Independent to exclude supervisory employees from-participation in'its affairs, we do not believe it possible that Sheets had no knowledge of the petition which Meek was carrying. The story of these two witnesses is un- convincing. We find that, as Sowle and Frushard testified, Sheets, together with Meek, solicited signatures on behalf 'of the Independent. Representatives of different departments, selected at the Colonial DECISIONS AND OIIDEAtS 735 Theatre meeting on September 21, including McDonald, met in a private dining rpom of the Hotel Hayes, in Jackson, a week or 10 days later. At this meeting Jensen and Bowersox were selected as it committee of two to seek legal advice looking toward incorporation of the Independent. Bowersox sought the advice of Wirt King .for a second time, subsequ'ent to the meeting' at the 'Hayes Hotel. On this occasion the attorney informed him that he would be unable to act for, the organization, since, he was retained to represent the re- spondent ' in other iizattei s. ollowing King's refusal to serve as their let') al "advisor,, Frank C. 'Paiiiter was retained by Jensen and 13ow'eisox. Painter' drew up incorporation papers for the Independ- eiit, which were signed 'oil' October 13 aiid filed with the Michigan Corporation 'and Securities Commissioh on November 1, '1937. S`nbsegiient to the ihcorpor,ition 'of' the .Independent, its organza tion:il efforts were` projected' beyond`Jackson, into'othe'r centers of the "respondent's system. Hoy Lee' Lepley; an employee 'of ' the re- spondent at Jonesville, testified 'that Beattie, the foreman, of the ci`e'iv to which Sowle was temporarily attached, was present at an organizational meeting of the Independent held in Jonesville. The meeting was not held on company property, or during working hours, but Lepley testified that a number of other crew foremen were present, including Ray Randall, Dick Barber,'Jonas Schumann, Rex Shea, Milton'Siilith,' and Harold Kr'aft, practically all of the fore- iiien with Headquarters at Jonesville. Noiie of these ' foremen with the exc'eptioh - of" Beatttie, were called by the respondent to testify. Beattie did not-'recall the meeting about which `Lepley testified' but denied that he had attended 'any Independent meeting. One witness who testified' on behalf of the respondent', denied that any' foremen. were present at the Jonesville meeting, although he also stated that he could not remember everyone who, was there. Even if we accept Beattie's denial, concerning the weight of which there is some doubt, in view of the Sowle incident, the detailed testimony of Lepley as to the presence of other foremen appears to us more credible than the general denial described above. We find that by the presence of its agents at an organizational meeting, the respondent provided open support to the extension of the Independent's activities to Jonesville. Glenn Piper, line foreman at Ionia, was present at an organiza- tional meeting of the Independent, held south of Lansing, in Febru- ary 1938. Vernon A. Burch, street department foreman in Flint, attended a similar meeting in that city during March 1938. Fore- man Metzgar' attended the Alma meeting which took place during February 1938, but was asked to leave. _ These cases are in marked contrast to the active discouragement of the formation of the C. I. O. local in Jackson, described' above. Furthermore crew foremen con- 736 NATIONAL LABOR RELATIONS BOARD tinued to attend Independent meetings even after they had been declared ineligible for participation in that organization. 8. Status of foremen Vice-President Arthur testified that crew foremen direct the work of from 1 to 10 men, usually away from headquarters. Crews are of varying types, including line,- street department, trouble, tree- trimming, and transformer crews. The foremen are paid from $4 to $6 a week more than top linemen in* their crews. They assign individual tasks to the men under them. Vice-President Frank G. Boyce testified that crew foremen occasionally have the power to hire local labor. The recommendation of crew foremen as to general hiring is considered, although employment is ordinarily handled by the respondent's personnel department. Crew foremen have the power to recommend promotion, discharge, and discipline of the employees under them. When, in October 1937, Arthur called all supervisors in the Jackson Division together to warn them against discriminatory acts, the crew foremen were included.' Thus, from the, testimony, of executive officers, as well as the em- ployees themselves, it is clear that the respondent has conferred power upon its crew foremen which enables them effectively to coerce the employees and to interfere with their right to self-organization. As described above, Markle, Parker, Sheets, and McDonald pos- sess even greater supervisory powers than the crew foremen. The latter, .looking to them for guidance, unquestionably charted their activities against the C. I. O. and in support of the Independent in accordance with the course so clearly defined by their superiors. C. Conclusions as to the unfair labor practices Several of the occurrences discussed above, which constituted part of the respondent's dual campaign of discouraging membership in the C. I. O. and of encouraging membership in the Independent, were, if considered alone, acts of interference with and coercion of its employees in their right of self-organization. Among these inci- dents are Markle's surveillance of the C. I. O. meeting on August 4, 1937, his disapproval of that organization and its activity so vigor- ously expressed on that occasion to a number of employees under his charge, and his lecture to some 60 employees 2 days later, when distributing pay checks. The transfer of Burke, head of the C. I. O. local, from the crew to which he had been attached for 8 years, on the day following Markle's surveillance of the August 4 meeting, and the accompanying transfers of men to the poleyard, all constituted acts of restraint and coercion. We have already found that these acts effectively caused withdrawals from the C. I. O. membership and that they were designed for that very purpose. DECISIONS AND ORDERS 737 Markle's efforts to discourage membership in the C. I. O. did not cease following Superintendent Southard's letter of August 9, relat- ing to discrimination. His advice to Goff that he attempt to persuade his brother-in-law Sowle to have nothing to do with the C. I. O. constituted flagrant interference, particularly when followed by Sowle's transfer to Jonesville where more vicious measures were taken to discourage his membership in the C. I. O. Nor-is the evidence of interference restricted entirely to Markle's acts. McDonald, supervisor of crews at Hudson, exceeded the limits of management neutrality when he informed employees under him, at the time of distributing copies of the contract of June 8, that they were not "under those agreements," that they did not have to sign anything but would get their "same rights." He exercised more positive interference when he took Darby to task for joining the C. I. O. :P I It further appears that all of these acts, unfair labor practices of interference and restraint, were of a pattern with a design of the respondent to foster ,and support the formation, of an independent organization. The respondent introduced evidence, showing that early in August, after complaint by the C. I. 0., it instructed Markle and other super- intendents to refrain from activity directed against the C. I. O. Nevertheless, such activity continued ,after the instructions were given.. Whatever instructions the respondent may have given its employees, it remained responsible for their acts of coercion and interference. We find that by the acts above mentioned, as well as by other acts described in Section III B above, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The acts which we thus find to have been separate unfair labor practices also constituted part of the respondent's effort to substitute for the organization which had gained a foothold among its em- ployees, an organization of the respondent's choosing. The letter of June 11, 1937, showed the desire of the respondent to foster a "loyal" organization limited to its own employees. The subsequent conduct of Markle and other supervisory employees tending to discourage activity on behalf of the C. I. O. further prepared the ground for such an organization. Finally, the respondent, through its agents, participated in the formation of the Independent, and in its subse- quent activities, and lent active support and encouragement to the Independent. While it is contended that, following the adoption by the Inde- pendent of bylaws, and the employment of Painter as legal advisor, foremen were excluded from formal participation in the Independ- 738 NATIONAL LABOR -RELATIONS BOARD ent's affairs,' the findings above showw that crew foremen, garage fore- men, and- others with supervisory -powers continued and persisted, throughout the winter and" spring of 1938,-in attending organiza- tional-meetings of the Independent, and in permitting solicitation by Independent organizers on company premises and during working -hours: ' Thus the -mere procedure of refraining from soliciting fore- men's membership, on: the part of - Independent organizers, did not -and could not effectively refute the belief, of ;many, employees that the respondent, through its agents, was continuing. to encourage the growth of" that organization.' • . I , We, find that the respondent- has ,dominated and,interfered with the formation and. administration of ,the Independent and has con- tributed° support to it, -acid that by so doing- it has interfered with, 're'strained, and coerced its employees An the exercise of the rights guaranteed in Section 7 of the Act. At-the 'commence'ment of>,the-'presentation of ,its defense, counsel -for the%respondent-stated:tu•. And without admitting the commission of-any-unfair-labor act or practice the respondent will further show that all charges and ` allegations of' unfair' labor practice stated ' in this hearing have heretofore beeii presented 'by the' complaining union to the, re- spohdent in meetinks' lield in' accordance with the procedure out- lined in the existing contract between the complaining union and the respondent,' arid that -all of such 'clims and allegations were, after negotiations between the parties,' filly and completely set- tled, compromised and adjusted. - And that even if any''siuch' claims and allegations could be held to be unfair labor" practice'within the meaning of the Act, that all of such claims and allegations-have become moot and having been settled and adjusted that there is no relief to be adminis- tered by 'the Board and the National Labor Relations Act, if applicable, having beef'held to be remedial, has no application. A sufficient answer to the respondent's contention may be found in Section 10 (a) of the Act which provides : ' The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 8) affecting commerce. This power shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise. However, a further answer to the contention is found in the fact that while many of the discriminatory acts complained of by the C. I. 0. were remedied by the respondent after protest had been made, DECISIONS AND O1tDERS ,• 739 this did not dissipate the most important,effect of those acts, namely, the manifestation of hostility toward the C. I. 0., and of friendliness toward the Independent. This is particularly true 'iii view of the 'fact that the adjustnleillt_'Of one set of grievances never 'prevented the commission of a fresh'series'of acts' of discriinination'by•the•respond- ent's agents. 'The situation' thus presenCed' was that niemliers of 'the C. I. 0. were impressed with the fact that' their `member'ship laid them open to'the' Hostility of'their siipervisors; 'and that they might at au ry,time- be called on to go through the' ma'chinery' laid down in the contract foi,tle'c`orectiori'of abuses. The mere fact'that the re- spondent made ' such' corrections in' many of the cases concerning which complaint 'was ' made` does not, and did not,` remove the' effect of the'acts'of its-supervisors. ' - ' The respohdeiit 'also sought 'to show that''all''those `vho testified concerning acts tending tb'`discourage, membership iii' the' C. I. 0. were "nbt iii fact discouraged. We have found' above 'that in some cases at least the respondent's effdrts'to hilt the' self-oranii€ion of its employees were successful. But even if this were riot' clearly shown, it would, not remove the respondent's conduct from the sphere of the Act. Such conduct, whether successfull,or, not, constitutes -1111f air, labor practices which it ,is the Board's duty under the Act to prevent. 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 de- scribed in .:Section-.I -above, have, a, close, intimate; and substantial relation-. to trade, traffic, commerce, transportation, and communica -tion among the several States, and,tend to lead -to labor disputes buL - dening and obstructing commerce and the free _ flow -of commerce. V. THE REMEDY We have found that the respondent dominated and interfered with the formation and administration of the Independent, and con- tributed support to it. The mere withdrawal of the respondent's domination, interference, and support of the Independent will not bb sufficient to overcome the impression created by the circumstances which surrounded its origin. Therefore we will order the respondent to, cease and desist from the unfair labor practices described above and also to refrain from recognizing the Independent as an organi- zation representative of any of its employees for the purpose of .dealing with it concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : 134068-39-vol ix-48 740 NATIONAL LABOR RELATIONS BOARD Q CoNcLusIoNs of LAW 1. United Electrical, Radio & Machine Workers of America; Util- ity Workers Organizing Committee and Local 101 thereof, formerly known as Local 740 of the United; and Independent Power Em- ployees' Association are labor organizations within the meaning of Section 2 (5) of the Act. 2. By its domination and interference with the formation and administration of the Independent, and by contributing support to it, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section •2 (6) and (7) of the Act. ORllER Upon the basis of the, findings of fact, and conclusions of law, and pursuant to Section 10'(c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Consumers' Power Company, a corporation, and its officers, agents, successors, and assigns, shall: 1. Cease and desist : (a) From in any -manner dominating' or interfering with the ad- ministration of Independent 'Power -Employees'' Association, or with the formation •or administration of, any other: labor organization of its employees, --or contributing support to the Independent or to any other labor organization of its employees; (b) From in any other manner interfering with, restraining or co- ercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section ,7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Refrain from recognizing Independent Power Employees' As- sociation as representative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work; DECISIONS AND ORDERS 741 (b) Immediately post in conspicuous places throughout the various plants in its system, including among such places all bulletin boards commonly used by the respondent for announcements to its em- ployees, notices stating (1) that the respondent will cease and desist in the manner aforesaid; and (2) that the respondent will refrain from recognizing Independent Power Employees' Association as representative of any of its employees for the purposes of dealing with the respondent concerning grievances, labor . disputes, rates of pay, wages, hours of employment, or other conditions of work; (c) Maintain such notices for a period of at least thirty (30) consecutive days from the date of posting; (d) Notify the Regional Director for the Seventh Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.