The Ohio Power Company

In the Matter of THE OHIO POWER COMPANY and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, LOCAL No. 729 Case No. "24.-Decided April 3, 1939 Electrw Utility Industry-Interference, Restraint , and Coercion : anti-union statements ; use of labor spy ; threats of blacklisting and discrimination because of membership and activities in union-Company-Dominated Union: domination of and interference with formation and administration ; support ; use of com- pany cars , time, and other facilities ; furnishing of employee as organizer; con- trast between hostility to union and open favoritism toward company-dominated organization ; disestablished as agency for collective bargaining-Employee Status: supervisory ; domination of duties in a particular group without right to hire and discharge, as-Espionage : use of labor spy ; ordered, to cease and desist such practices. Mr. Harry L. Lodish and Mr.'Max W. Johnstone, for the Board. Lynch, Day, Pontius d Lynch, by Mr. M. C. Pontius, of Canton. Ohio, and Mr. J. G. Ketterer, of Canton, Ohio, for the respondent. Mr. Stanley Denlinger, of Akron, Ohio, for the United. Mr. Joseph A. Padway, of Milwaukee, Wis., and Mr. W. H. Wilson, of Akron, Ohio, for the Brotherhood. Mr. Paul J. Gnau, of Canton , Ohio, for Topco. Mr. Richard Salant, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by United Electrical Radio & Machine Workers of America, Local 729, herein called the United, the National Labor Relations Board, by the Regional Direc- tor for the Eighth Region (Cleveland, Ohio), issued its complaint and notice of hearing dated November 29, 1937, against The Ohio Power Company, Newark, Ohio, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1),and (2) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. In respect to the unfair labor practices the complaint alleged in substance (1) that on and after January 1, 1937, the respondent inter- 12 N. L. R. B., No. 3. 6 OHIO POWER COMPANY fered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act by means of various specified acts and conduct; and (2) that in June 1937, and thereafter, the respondent fostered, dominated, and interfered with the formation and administration of a labor organization known as Topco Employees Association, Chapters I to IX, herein called Topco, and contributed financial and other support to it. Copies of the complaint and notice of hearing were duly served upon the respondent, the United, Topco, and International Brotherhood of Electrical Workers. On December 3, 1937, the respondent filed an answer to the com- plaint denying that it had engaged in or was engaging in the alleged unfair labor practices. Accompanying the answer was a motion tc dismiss on jurisdictional and constitutional grounds.,, On or about December 3, 1937, the respondent made application to the Regional Director for an order continuing the hearing. This motion was granted. On December 10, 1937, the hearing was again postponed. On or about December 20, 1937, the respondent filed with the Regional Director a motion for an order requiring the charge and the complaint based thereon to be made more definite and certain. On December 23, 1937, Local B-759 and Local B-981, International Brotherhood of Electrical Workers, herein called the Brotherhood, filed with the Regional Director a motion to intervene. On Decem- ber 27, 1937, this motion was granted. Pursuant to notice, a hearing was held in Canton, Ohio, from December 28, 1937, to January 22, 1938, before Charles E. Persons, the Trial Examiner duly designated by the Board. At the opening of the hearing, the respondent renewed its motion to make the allega- tions of the charge and of the complaint more definite and certain. The Trial Examiner took the motion under advisement. The respondent thereupon objected to proceeding further until the Trial Examiner ruled upon the motion. At the same time, the respondent renewed its motion to dismiss on the grounds set forth in its answer. This motion was denied. After the noon recess at the hearing on the first day, the Trial Examiner granted the motion to make more definite and certain in so far as it related to matters in the com- plaint, except as to setting forth "derogatory statements" alleged to have been made by the respondent. The motion was denied in so 1 As stated below, the Trial Examiner subsequently denied this motion, and the Board affirms his ruling. The respondent's jurisdictional contention has now been settled against it. Consolidated Edison Company of New York, Inc., et at. v. National Labor Relations Board, 59 Sup. Ct. 206 (1938) ; Appalachian Electric Power Company v. National Labor Relations Board, 93 F. (2d ) 985 (C. C. A. 4th 1938). Constitutional objections similar to the respondent's have been similarly rejected. National Labor Relations Board v. Jones ci Laughlin Steel Corp, 301 U. S. 1; see also Matter of National Electric Products Corporation and United Electrical and Radio Workers of America, Local No. 609, 8 N. 4 $. B. 475, 504-505. 8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD far as it related to matters in the charge. Thereupon, counsel for the Board made the complaint more definite and certain in com- pliance with the ruling. The respondent, however, objected to the Trial Examiner's rulings concerning the "derogatory statements." The respondent also objected to the fact that the hearing had pro- ceeded for a half day without a ruling on the motion to make more definite and certain. These objections were overruled. During the hearing, the Trial Examiner granted a motion by Topco to intervene. These rulings are hereby affirmed. The Board, the respondent, the United, the Brotherhood, and Topco were represented by counsel and participated in the hearing.2 Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the close of the hearing, the Trial Examiner ruled that the record be held open for the purpose of permitting the respondent to take a deposition of Charles Bivenour, one of the respondent's meter superintendents. The deposition was taken on February 5, 1938, in Coshocton, Ohio. The Board and the respondent were rep- resented by counsel at the taking of the deposition. During the course of the hearing, the Trial Examiner made vari- ous rulings on motions, other than those specifically mentioned above, and on objections to the admission of evidence. The Board has reviewed the Trial Examiner's rulings and finds that no prejudicial errors were committed. On May 10, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in and was engaging in the unfair labor practices alleged in the complaint, and recommended that the respondent cease and desist therefrom and, affirmatively, dis- establish Topco as a bargaining representative of its employees. He also overruled certain motions to dismiss the complaint made at the close of the hearing, on which he had reserved decision. The Trial Examiner, in his Intermediate Report, notified the parties that they were entitled to request oral argument before the Board within 10 days of the receipt of the Report. Thereafter, the respondent and Topco filed exceptions to the Inter- mediate Report. On August 31, 1938, the Board notified the parties that they were permitted to file briefs with the Board upon applica- tion within 10 days. None of the parties requested oral argument before the Board or filed briefs. The Board has reviewed all the exceptions to the Intermediate Report, and except in so far as they 2 During the last week of the trial, counsel for the Brotherhood and counsel for United were not present at the trial . During this period , the Brotherhood was repre. sented by W. H. Wilson, International representative. The United was not represented. OHIO POWER COMPANY 9 are consistent with the findings, conclusions, and order set forth below finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent was organized and incorporated under the laws of the State of Ohio in 1907 as The Canton Electrical Company. Its name was changed to The Ohio Power Company by amendment to its articles of incorporation in 1919. The respondent is a part of the integrated system of the American Gas and Electric Corporation, which by contract 3 with the respondent provides management, ad- visory, engineering, and similar services to the respondent. The re- spondent owns one-half of the capital stock of the Beech Bottom Power Corporation, a corporation whose sole function is the opera- tion of the Windsor generating plant at Power, West Virginia. The respondent also owns one-half the capital stock of the Windsor Power Coal Company, which supplies the Windsor generating plant with its coal requirements .4 The respondent's principal place of business is at Newark, Ohio. It is engaged in the generation, transmission, distribution, and sale of electrical energy and electrical appliances. Its electrical energy is generated at two plants, one in Power, West Virginia, and one at Philo, Ohio. The respondent's distribution departments are separated into nine divisions, with headquarters at Canton, Lima, Tiffin, Newark, East Liverpool, Steubenville, Bellaire, Portsmouth, and Coshocton, respec- tively, all in Ohio. The total sales of energy by the respondent for the year ending December 1, 1936, amounted in value to $20,702,182. Approximately 2.7 per cent of the respondent's total sales of electrical energy and materials during the same period represented sales of electrical ap- pliances. The net amount of electrical energy generated at the Philo plant in 1936 was 1,654,442,190 kilowatt hours. The total number of the respondent's employees as of November 30, 1937, was 2,966. Purchases and sales of electrical energy in interstate commerce The complaint alleged that "the entire connected system of the Respondent is a part of the interconnected system of the American 9 Until January 1, 1938, the contract was with the American Gas and Electric Company, which is apparently the predecessor of American Gas and Electric Corporation. 1 All such coal is mined in west Virginia. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gas and Electric Company, furnishing electrical energy to communi- ties and other users in the States of Kentucky, Virginia, West Vir- ginia and Ohio ... A large proportion of the electrical energy gen- erated, transmitted, and distributed by the Respondent is distributed to users without the State of Ohio." The respondent admitted these allegations in its answer. Approximately 26.76 per cent of the elec- trical energy generated and purchased by the respondent is sold and distributed to points outside the State of Ohio. As stated above, one of the two main generating plants for the respondent's system is located at Power, West Virginia. The net amount of electrical energy generated at Power in 1936 and trans- mitted into Ohio totaled 514,900,000 kilowatt hours. The respondent has interchange contracts for the transmission of electrical energy with Appalachian Electric Power Company, of West Virginia, and Indiana-Michigan Electric Company, of Indiana.5 During 1936, pursuant to these interchange contracts, the respondent delivered to Appalachian Electric Power Company 205,362,000 kilo- watt hours, and received from that company 169,554,900 kilowatt hours. In the same year, the respondent delivered to Indiana and Michigan Electric Company 429,507,693 kilowatt hours, and received from that company 1,901,000 kilowatt hours. In these interchanges, each company owns the transmission lines to the State line and the exchange is effected at the Ohio-Indiana line in the case of Indiana and Michigan Electric Company, and at the Ohio-West Virginia line in the case of Appalachian Electric Power Company. Purchases of materials in irnterstate coimmerce The respondent in the operations of its business purchases coal, cables, copper, insulators, aluminum, poles, steel structures for trans- mission lines and substation equipment, electrical appliances, and other miscellaneous equipment. In 1936 the total value of such pur- chases was $6,500,000. Forty per cent of these purchases were from points outside the State of Ohio. Types of consumers dependent ;on electrical energy supplied by the respondent The complaint alleged that the respondent, from its Philo plant, furnishes electrical energy for approximately 466 cities and towns in the State of Ohio and assists in supplying approximately 700 com- munities in adjoining States. It further alleged that "a large part 5 The respondent also has an interchange contract with Wheeling Electric Company of West Virginia. Electrical energy is supplied to this company by the respondent' s plant at Power, West Virginia. OHIO POWER COMPANY 11 of the electrical energy generated, transmitted, and distributed by the Respondent in the State of Ohio is used by railroads, telephone com- panies, and other instrumentalities of interstate commerce, by manu- facturers of goods in interstate commerce 6 and by other groups and individuals engaged in interstate commerce or using instrumental- ities of interstate commerce." These allegations were admitted by the respondent in its answer.7 Conclusions concerning thei respondent's relation to commerce It is clear from the findings above (1) that the respondent main- tains facilities in West Virginia as well as in Ohio for the generation and distribution of electrical energy; (2) that large amounts of electrical energy generated by the respondent are transmitted across State lines; (3) that the respondent purchases large quantities of electrical energy which are transmitted to it across State lines; (4) that the respondent receives large quantities of coal and other commodities in interstate commerce; and (5) that instrumentalities of interstate commerce such as railroads, post offices, and telegraph companies, as well as manufacturers who purchase and sell in inter- state commerce, use electrical energy supplied by the respondent. A cessation of the respondent's business, such as would tend to accom- pany labor disputes between the respondent and its employees, (a) would affect the flow of large quantities of electrical energy and other commodities received or distributed by the respondent in inter- state commerce; and (b) would tend to burden and obstruct not only the operations of various instrumentalities of interstate transportation and communication but also the operation of the businesses served by the respondent with power, which receive and ship commodities in interstate commerce." IL THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America, Local No. 729, is a labor organization affiliated with the Committee for "For example, the evidence shows that respondent supplies electrical energy to Republic Steel Corporation's Canton plant. In a prior case the Board has found that in 1936 the latter plant shipped products to points outside Ohio aggregating in value $19,717,- 266.36. Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L. R. B. 219. " In its stipulation concerning commerce , the respondent stated : "Respondent has no means of knowing the extent of the dependence of all of its customers upon respondent's service." 8Consolidated Edison Company of New York, Inc, et al. v. National Labor Relations Board, 59 Sup. Ct. 206 (1938) ; Appalachian Electric Power Company v. National Labor Relations Board, 93 F. (2d) 985 (C. C A. 4th, 1938 ) ; Matter of Pacific Gas and Electric Company and United Electrical & Radio Workers of America, 3 N. L. R. B. 835 Matter of Consumers' Power Company, a eorporataon and Local No. 71,0, United Eleotrical, Radio d Machine Workers of America, 9 N. L. R. B. 701. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Industrial Organization. Its headquarters are in Newcomerstown, Ohio. Local No. 729 was chartered June 4, 1937.9 It admits to membership employees of the respondent; at the time of the hearing its. membership appeared to have been confined largely to employees in the respondent's service division, the headquarters of which are at Coshocton, Ohio. International Brotherhood of Electrical Workers, Locals B-759 and B-981, are labor organizations affiliated with the American Fed- eration of Labor. Local B-759, with headquarters at Upper Sandusky, Ohio, admits to membership all employees of the respondent in the northern division, except supervisors, bookkeepers, and stenographers. Local B-981 has headquarters in Newark, Ohio. Its membership covers the respondent's southern division, but the exact limits of its jurisdiction do not appear in the record. Topco Employees Association, Chapters I-IX, is an unaffiliated labor organization, admitting to its membership all employees of the respondent except supervisors. Topco is composed of nine chapters corresponding to the nine distribution divisions of the respondent. Each chapter has its own constitution and bylaws. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion Except for a short-lived union of firemen in 1920, there was no union organizing among the respondent's employees until early in 1937. In January 1937 some employees joined the United local at Dover, Ohio, but it was not until March that the United began a concerted organiz- ing campaign. Its activities were confined to the service division cen- tering around Newcomerstown, Ohio, and it was successful in organ- izing a substantial number of employees in the district 10 Many witnesses testified to the immediate opposition to the United evinced by various supervisory officials of the respondent in the service division. The activities and conduct of such officials are best consid- ered individually : J. J. Dolan is the general manager of the service division. He is the chief official, and has charge of the employment, in this division. Coin- cident with the United's organizing drive of which he was aware, Dolan became actively interested in union affairs. Late in March, he called a meeting in the afternoon of all employees working in the Dennison, Ohio, area. At this meeting, J. W. Rennacker, the super- intendent of the Dennison area, stated that he had learned that there 6 Prior to June 4, employees of the respondent were admitted to Local No. 708 of the United, with headquarters at Dover, Ohio. 10 The activities of the Brotherhood did not begin until June or July 1937. OHIO POWER COMPANY 13 was a C. I. O. organization in the district, and then asked the employees whether they had any grievances. At a second meeting held in the evening of the same day, Dolan repeated this inquiry. That he was aware not only of the United's activities but also of the employees who were participating therein is shown by his specific questioning of Thomas Maitland, a United member, concerning any grievances Mait- land might have. Dolan then turned the meeting over to one Fauver, a C. I. O. organizer, who told the employees "to take things easy, not to go ahead and jump into anything blindfolded." At about the same time, Dolan invited George Kym, a lineman in the division, to his home after learning that Kym was a representative of the United. Dolan knew that Kym had had considerable experience in unionism," and he pointed out to Kym that the employees were "new and inexperienced." He asked Kym "not to run away and not to get wild and cause any strikes." On March 27, at a meeting of all the superintendents and department heads, Dolan discussed the activi- ties of the United, and told them to be sure to keep in close contact with the employees and find out what grievances they had. Dolan, however, insisted that, although he spoke to many employees individually, and to the department heads, he had always made it clear that the employees could join any union they wished, and that he had expressly warned the superintendents "to be very careful about creating any trouble," and instructed them "that they could not tell our employees not to become affiliated with any union." Dolan attributed his activities to the fact that "I realized that these boys never had experience with unionism, and my department heads never had any experience in dealing with unions and I did not want those boys to cause strikes and get in trouble, interrupt service, cast a black eye on the service division." Although Dolan freely testified at the hearing that he was not wholly in sympathy with the labor movement because of its "great dangers on account of lack of independent leadership" and because it is "at the mercy of ignorances," the record is devoid of any evidence that Dolan directly stated to any employees that they were not free to join any union they wished. However, particularly in view of Dolan's criticism of outside organizations at the hearing, we do not believe that his conversations with and instructions to the superin- tendents and other supervisors were so judiciously worded as his statements on the witness stand. Although Dolan may not have expressly instructed the superintendents and supervisors to engage in n In 1936, E it. Strohm, distribution superintendent in the service division , visited Kym at his home and expressed his concern about union activities in the neighboring plant of the American Art Works . Strohm was fearful of the organization's spreading to the respondent's employees, and so requested Kym to report to him if any union activities began in Coshocton. 14 DECISIONS Ot NATIONAL LABOR RELATIONS BOARD anti-union conduct, we nevertheless believe that their activities, dis- cussed below, sprang in part from Dolan's own attitude toward out- side unions, which he revealed to them, and that it is in the Lght of these facts that the conduct of the other officials in the service division must be considered. In any event even if the conduct and statements of these officials, set forth below, were not in any part the result of Dolan's conversations with and instructions to them, their conduct and statements are nevertheless attributable to the respondent, which is responsible for,the activities of its officials and supervisors. E. R. Strohm is distribution superintendent in the service division. He is in charge of the line crews and other work involved in the maintenance of the respondent's lines. George Kym, a lineman, testi- fied that shortly after he was elected to the United grievance com- inittee, Strohm and Arnold Babcock, a foreman, visited Kym at his home.' Strohm told Kym that "If you come into the office with the committee, you will have no job or any other place in the Ohio Power Company, or anywhere else you may go, and you will be listed as an agitator." Similarly, Peter Gross, an employee, testified that Strohm called him into his office, in the presence of Babcock, and said, "If anything happened, he would blackball me from the whole division," that Gross was an "agitator" and should have seen his foreman before joining the United. J. G. Poling, another employee, testified that Babcock, his foreman, summoned him to his office, called him an agitator, and said, "If I didn't stop union activities I would leave the job with a bad name and be black-listed from the system." Each of these incidents occurred shortly after, Kym, Gross, and Poling had joined the United. Neither Strohm nor Babcock were called by the respondent to deny having made these statements, and no showing of their unavailability was attempted. We find that these incidents occurred as testified to. W. T. Robertson, a member of the floating crew, testified that on or about April 2, 1937, Strohm called each member of the crew to an automobile in which Dave Hine, the crew foreman was sitting. Robertson was told by Strohm that he had been promoted to a field clerk, at an hourly wage increase of 15 cents, and that he should "drop your union activity, don't attend any meetings and don't pay any dues, don't talk about it, just don't have anything to do about it," and that "we wouldn't fire a man for belonging to a union; we are too smart for that, but we could find a number of other reasons 12 On this occasion , Strohm reprimanded Rym for not having kept his promise, made in 1936, to inform Strohm of the beginning of any union activities in the area. See footnote 11 above. OHIO POWER COMPANY 15 to let you go. We have never been dictated to by the employees ... and we are not going to start now." Hoy Cross, another member of this crew, had signed an affidavit stating that, on the same occasion, Strohm made similar statements to him. At the hearing, however, Cross insisted that he had not meant to sign this part of the affidavit and that Strohm had only asked him whether he was satisfied with his wage increase.13 Frank Caddes, a third member of the crew, testified his conversation with Strohm was limited to a discussion of the wage increase. Baker, the fourth member, did not testify. As pointed out above, Strohm was not called by the respondent. Hine, the foreman of the crew, who was sitting in the car through- out this incident, denied that anything was said about union activ- ities, and stated that the men were asked if they had any grievances. He testified that Strohm had requested Hine to drive him over to the crew so that he could tell them about the wage increases. Hine stated that it was common practice to tell the employees about the wage increases individually since they did not always get identical or simultaneous raises. Nine's denial that Strohm discussed union activities is not, how- ever, consistent with Dolan's testimony. Dolan testified that he had directed Strohm to hold these individual conferences with the members of this crew "and assure them that they were going to be treated right and point out that we did not want any trouble or strikes . . ." In brief, it is apparent from Dolan's statements that the primary purpose of the conferences vas to discuss at least some phases of union activities. Nor, as pointed out above, is Cross' denial convincing in the light of his previous affidavit. Finally, Strohm himself, the principal actor in this incident, was not called to testify. Under all the circumstances, we find that this incident occurred substantially as testified to by Robertson. F. E. Redman, is the respondent's superintendent in general charge of the area around Newcomerstown. He is one of the officials under; Dolan. E. C. Randles, an employee in the maintenance department, and secretary of the United, testified that on April 23, 1937, about which time he had been actively soliciting membership for the 13 The circumstances surrounding the prior discharge and reinstatement of Cross throw considerable doubt on Cross' denial and repudiation of his affidavit . In April 1937 Cross had been injured while working . When Cross , who at that time was a member of the United, applied for reinstatement on August 10, 1937, he was refused because, according to Dolan, Cross had "stomach trouble and was unfit for our organization ." On August 21, 1937, Lolan reversed his decision and Cross was reinstated shortly thereafter. Dolan explained that he had reversed himself because he had hoped Cross would accept the dismissal without any complaint and "go back to the farm ." The affidavit which Cross subsequently repudiated was dated August 18 and was sworn to before the notary on August 23, apparently the same day Cross returned to work. 16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD United, Redman, his superior, said to him, "I don't know what in hell you are going to do next. Why are you causing us a hell of a lot of trouble. It is getting down now to where it is damn serious. You have contacted the men in the Northern Division to organize them into the United . . ." Randles was not cross-examined by the respondent and Redman was not called to testify, nor was any showing of his unavailability made. We find that Redman made the above statements to Randles. Charles Bivenour is the meter superintendent in the service di- vision. Several witnesses testified to various incidents relating to Bivenour's hostility to the United. Thus John Crater stated that Bivenour told him he should not have joined the United without first consulting Bivenour; R. D. Stocker testified that Bivenour asked him whether he had joined the United, and on obtaining an affirma- tive answer, Bivenour suggested that Stocker give it "good consid- eration. You know this is an appropriation job isa and can be stopped at any time"; Bevan Pracht testified that after he had joined the United, Bivenour questioned him, and said "I think that is a fine way to treat your division manager by going and joining a union after he has given you a position here"; Bivenour further repri- manded Pracht for not having first consulted Bivenour, and he sug- gested that if Pracht "dropped the union and went along with him, Bivenour would do things" for him. W. H. Babcock, an employee, testified that Bivenour came to his house on March 28, 1937, asked him whether he had joined United, and said that he "didn't think we was giving Mr. Dolan 14 a square deal and that he didn't think that the Company could do anything for me if I couldn't go along with them." Taylor Van Vleck similarly testified that Bivenour had reprimanded him for joining United before consulting with him, and that Bivenour said "if you will do that way, I am finished with you, I cannot do anything for you." Bivenour denied having made these statements. He admitted he went to Pracht's house, but said the visit concerned giving Pracht a permanent job; he admitted the conversation with Van Vleck, but said it concerned business; he also admitted having visited Babcock. In view of the consistency of the testimony given by these em- ployees, however, we are not convinced by Bivenour's denials. Each of these employees testified to a similar approach and method by 181 An "appropriation job" was a temporary or emergency job for which special funds were from time to time allocated . By failing to renew the appropriation the crew could be abandoned at any time. is The frequency with which, during these activities of the various supervisors, Dolan's name appears, confirms our conclusion, as set out above, that his conferences with the supervisors and his attitude toward "outside" organizations were in part responsible for the incidents here described. OHIO POWER COMPANY 17 Bivenour : in each case, he inquired about membership in United, complained of not being consulted first and then threatened demo- tion or discharge. We find that these incidents occurred as testified to by the various employees. Respondent's treatment of United's demands: Late in March, the United formed a grievance committee, but it was apparently not until May that it requested conference with the respondent. On May 7, Dolan granted the request. He summoned all the superintendents and department heads to the conference "so that if anything came up, we could discuss it." Dolan described the meeting at the hearing : "the boys came in and they were evidently surprised to find all the superintendents and department heads there. I think they expressed themselves as such. I got the impression that they expected to meet me alone." The committee discussed planned overtime and the rule requiring linemen to wear rubber gloves. "I asked those boys re- peatedly if they had anything else to complain about. I thought probably they had 2 or 3 other things in the back of their heads and they didn't. They were slow and hesitant." We do not find it sur- prising that the members of the United committee should have been somewhat abashed at being faced with so formidable an array of their superiors; the presence of all these supervisors was not likely to be conducive to a full and free discussion on the part of the em- ployees. Nevertheless, in the absence of any definite proof that Dolan arranged the meeting in this fashion in order to intimidate the committee, we shall make no finding that the respondent, by the conduct of its agents at this meeting, violated Section 8 (1) of the Act."" On June 7, 1937, Strohm, the distribution superintendent whose other activities have been discussed above, announced to a line crew of which Kym was a member that "It's no use for the [United] com- mittee to get together and draw up a contract, that the Ohio Power Company would have nothing to do with it." Nevertheless, on or about July 6, 1937, the United submitted a contract to Dolan. On July 20, at a conference between Dolan and a United organizer, the latter withdrew the contract since it had not been submitted to the C. I. O. home office for approval. The United did not subsequently submit a contract. Several employees, however, who were members of one of the line crews and of the United, testified that on or about August 16, 1937, T. N. Bushnell the superintendent of the New Philadelphia area and their superior, visited this crew and announced that the respond- 15 No such large gathering of the respondent 's officials was summoned to meet the grievance committees of Topco as discussed below. 18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent would not sign a contract with the United.16 Bushnell testified that he made this announcement after Dolan had informed him that a contract had been received from the United and after Dolan had instructed Bushnell to tell the members of the crew that the contract would not be signed. No explanation is made by the respondent, however, for the 4 weeks' delay between the withdrawal of the contract by the United and Bushnell's announcements We cannot, therefore, believe that the purpose of the announcement was simply to give information to the crew. Further, no reason is assigned by the respondent for its departure from the ordinary method of dealing through duly con- stituted union representatives rather than singling out individuals of a particular crew. Under all the circumstances, we believe that Bushnell's conduct was intended to forestall and discourage the activities of the United's committees. IT We find that by the acts described above, except the respondent's treatment of the United's grievance committee on May 7, 1937, the re- spondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.1' In its effort to keep itself apprised of the United's activities and to prevent labor organization, the respondent also employed the services of Dale Stickrath. The respondent and Stickrath deny that he acted as a labor spy; we find, however, that the evidence establishes that he did act as a spy. Stickrath had been employed by the Burns Detective Agency from 1929 to 1936 and acted as general manager of its Pittsburgh office for 3 years. In February 1936 he interviewed Bivenour and Dolan in an effort to obtain employment with the respondent. He filled out an application for employment stating that he desired to transfer "for betterment." Although Stickrath testified that he did not know 16 The testimony of the employees in this crew concerning Bushnell's exact words Is conflicting. Young testified that Bushnell said that the respondent would not recognize any union. Although Korns, in an affidavit , corroborated Young, at the hearing Korns testified Bushnell had said that the respondent "wouldn't sign a contract of no union." John Davis, the foreman of this crew, testified that Bushnell had said that respondent would not sign "the contract." We do not believe it necessary to resolve this conflict since, accepting any of the versions , Bushnell's conduct constituted an unfair labor practice. 17 The respondent, however, met and discussed grievances with committees of the United after August 16, 1937. 19 That the respondent was successful , at least to some extent, in causing its employees to fear reprisals for their participation in the United 's activities Is indicated by the testimony of W. P. Phelps, a former member of the United who later became president of Topeo, Chapter IX. While Phelps was still a member of the United , he was ap- proached by William Steadman, whose activities on behalf of Topco are discussed below, and who was anxious to enlist Phelps' aid for Topco . Phelps testified that he was very cautious since he "thought maybe he [Steadman ] was down there to find out what my activities was in the C. I. O. or get some Information " OHIO POWER COMPANY 19 whether Bivenour and Dolan were aware of his prior connection with the Burns Agency, and although Dolan denied all knowledge of it, Stickrath's application stated that such was his prior employ- ment. Bivenour admitted that he had known that Stickrath had formerly been a private detective with the Burns Agency. Following these interviews with Bivenour and Dolan, Stickrath was hired by the respondent to work in the service division under Bivenour. Stickrath was hired in March 1936. This was at about the time that Strohm had expressed anxiety that labor activities at other neighboring plants might spread to the respondent's employees and had visited Kym and requested Kym to inform him if any such activities spread to the respondent's workers. Stickrath was on the pay roll of the Burns Agency at the time he was hired by the respondent, but he testified that this was only because he wanted to be available for work for the Agency in case he failed to obtain a job with the respondent. Stickrath testified that as soon as the respondent hired him, he returned to Pittsburgh to tell the Agency to remove his name from its pay roll. Shortly after being hired Stickrath was assigned to the meter- installation crew. Crater, Stocker, and Pracht, all active in the United, were members of the crew. This was the crew which Bivenour had warned about United activities,, and which he threatened, as described above, to disband. When the United became active in the service division, Stickrath joined United and was elected chair- man of its ways and means committee. His activities in the United, however, were largely confined to criticism; he stated at one of the United meetings that "I don't see where the Union has done us any good and our meetings seem to run in a circle." Subsequently, Stickrath joined Topco. Stickrath testified that he had joined United "to find what kind of a union it was. I figured if I didn't like the kind of union it was I could get out." Late in June 1937, Stickrath was transferred from the meter-in- stallation crew to the laboratory in the Hydro plant in Coshocton, where he "tested rubber gloves." Not long after he was thus trans- ferred, the meter-installation crew was disbanded and Blum, Crater, and Stocker were laid off, although at least Blum and Stocker had seniority over Stickrath. Stickrath's interest in labor activities was not confined to joining the United. He admitted that in March or April 1937, he had discussed the United with Bivenour. Although he did not know until several days after the hearing had begun that he would be called as a witness, and although until called he had no ostensible reason for being present at the hearings, Stickrath attended the hearings. While so attending them, he was still an employee of the 169134-39-vol. 12-3 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent and thus presumably supposed to be working.19 He also transported several Board witnesses to the hearings. One of these witnesses was C. D. Reiss, who proved a reluctant witness and until faced with an affidavit which he had signed to the contrary, insisted at the hearing that Bivenour had never talked to him about Topco. Stickrath further admitted that, although he claimed to have severed connections with the Burns Agency in March 1936, he had visited its Pittsburgh office a week before the hearing, and had there dis- cussed with the Burns manager the respondent's labor situation. Stickrath proved himself to be an evasive witness, unwilling to testify frankly concerning his connection with the Burns Agency. Although he gave a detailed description of the United's activities and certain other events, he could not remember the name of the manager of the Burns Agency with whom he had talked for "fifteen minutes" a week before. Stickrath at first denied that while work- ing for the Burns Agency he had ever been connected with under- cover labor work; after lengthy examination, however, he disclosed intimate knowledge of this type of work. When asked whether "an inside missionary in respect to other relations with the working men do any different work than that done in respect to communism" he testified that "It has not been any different than that done under me," and, when confronted with a report of the Senate Committee on Education and Labor investigating interference with the right of labor to organize and bargain collectively, admitted that in 1935 he had written a letter to the New York office of the Burns Detective Agency giving an account of his visit to the Copper Coal Company concerning that company's under-cover work. The clearness of the impression created by Stickrath's demeanor and general bearing on the stand that he acted as a labor spy for the respondent is indicated by Topco's counsel's questioning of Stickrath as to whether Stickrath had been instigated by the Board's attorney so to conduct himself on the stand as to "create the impression that he was an undercover man for the Company." Nor are we satisfied with Stickrath's explanation for his having transferred from the Detective Agency to the respondent. In the course of his testimony Stickrath gave several reasons : he stated that his health was bad, that he was disgusted with the detective business, that his wife had to take a rest in Atlantic City and his salary with the Agency was insufficient. In making out his applica- tion, however, Stickrath affirmed that his health was good. At another point in his testimony,. he stated that his wife's vacation was at the expense of her parents. Nor are his protests of disgust "As stated above his place of employment was in Coshocton while the hearings were held at Canton, a distance of approximately 62 miles. OHIO POWER COMPANY 21 convincing in view of his subsequent visits to the Agency or of his explanation, as described above, of why he had left his name on the Burns pay roll until hired by the respondent. The respondent apparently attaches some significance to the fact that Stickrath's native city was Coshocton and that he had in 1923 been employed by the respondent. It introduced evidence to show that Stickrath was simply returning to his native city and that it was generally known that Stickrath had been employed by the Burns Agency and was called "G-man" by the respondent's employees. We do not believe that these facts negate the evidence described above. That the employees knew Stickrath had been a detective is not evidence of the fact that they were aware of the type of detective work in which he had been engaged, especially in view of his re- luctance, displayed at the hearing, to admit that such work included labor espionage. Nor does the fact that Stickrath had formerly lived in Coshocton and worked for the respondent carry the necessary in- ference that lie was simply returning home. On the contrary, it is reasonable to infer that Stickrath's familiarity with the employees and the work of the respondent, as well as his association with Coshocton, in the minds of others, were factors taken into considera- tion as making him a peculiarly well suited person to engage in espionage without suspicion falling either on him or on the respondent. Stickrath's history of employment with the respondent follows the general pattern of that of a labor spy. His former connection with the Burns Agency, the coincidence of dates between his being hired by the respondent and Strohm's attempt to enlist Kym's aid in obtaining information concerning labor activities among the respond- ent's employees, his subsequent association with a crew comprised of active United members, his temporary membership and success in, and his destructive criticism of, the United, his transfer from this crew shortly before it was disbanded and his continuing interest in the labor relations of the respondent, indicated by his attendance at the hearings and his visit to the Burns Agency, all point to the nature of his work. Further, his unsatisfactory testimony strengthens the' belief that he acted as a labor spy. Taking into consideration all the evidence, as well as the respond- ent's hostility to, and desire for information concerning United activities in the service division as described above, we find that the respondent employed Dale Stickrath for purposes of industrial espi- onage, and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Formation of, interference with, and support of Topco 1. The organization of Topco Late in May or early in June 1937, the idea of forming an inde- pendent union among respondent's employees was first broached in Canton.20 The record is silent concerning the identity of the par- ticular employees who suggested such an organization, but it appears that these employees soon brought the idea to Norman McGregor, a collector in the credit department of the respondent's Canton office. McGregor attributed his having been chosen to take steps to carry out the idea to the fact that he was the president of an employees' social club and active in employee affairs. On June 7, 1937, McGregor called on a local attorney who, because of his activities in forming "employees' leagues" in neighboring plants, McGregor thought was "familiar with the nature of the work we wanted." The attorney outlined to Mc- Gregor the steps that should be taken, and furnished McGregor with a statement concerning the Wagner Act and with model application cards. Thereafter, Topco Employees Association, an unaffiliated labor or- ganization, was created with remarkable speed. McGregor's confer- ence with the attorney lasted from 2: 30 p. in. to 4 p. in., June 7, 1937. This conference was claimed to be the first occasion at which a concrete plan for an independent union was formulated. Yet that very evening the first meeting of Topco, Chapter I, was held, with approximately 125 employees in attendance. At this meeting McGregor explained the purposes of the organization and asked for a show of hands on whether the plan was to be adopted. The plan was almost unani- mously approved; temporary officers were chosen; and about 100 printed membership application cards were signed. In short, between 4 p. m. and 7:30 p. in., when the meeting was begun, the testimony shows that a meeting hall was secured, at least 125 employees were notified and application cards were printed. This considerable task was accomplished on a Monday, when presumably the employees were engaged in the business of the respondent. It was purportedly ac- complished, moreover, by McGregor, who in his testimony showed ignorance concerning the constitution, procedure, and structure of Topco. By Thursday, June 10, Topco Chapter I's claim to membership had risen to 250 out of a total of 400 eligible employees. In the evening of June 10, a second meeting was held, the constitution and bylaws ° Several witnesses attributed the idea of an unaffiliated union and their membership therein to their desire to avoid the "unpleasantness " attendant upon the strikes then in progress at the nearby Republic Steel Corporation 's plant and other plants. OHIO POWER COMPAXY 23 prepared by the attorney were presented and adopted, and permanent officers were elected. It was at this meeting that William Steadman, a relay tester attached to the Canton office, who had not been present at either of these first two meetings, was elected as representative of the eight "migratory laboratory" crews which worked out of the general office in Canton and traveled throughout Ohio. It was sug- gested at this meeting that Topco be organized in the respondent's other divisions "because if we have got an organization . . . it won't be so easy to penetrate and it won't be so easy to stop our activities." 21 The following day, McGregor told Steadman of the proposal and the latter enthusiastically agreed. Together they visited the attorney, who outlined the procedure to be followed. On or about June 14, 1937, Steadman left Canton and traveled throughout the various divisions in Ohio. In each division he made contacts with employees, meetings were called, and chapters were set up. On July 9, Steadman announced to the chapter presidents, "I have done all I can for you boys, it's up to you now, you are on your own." Steadman had left in his wake eight Topco chapters. On July 9, Topco claimed approximately 1,475 members, with each of eight chap- ters claiming a majority in its division. Only Chapter IX, the service division where United had been active, did not claim a majority at that time. 2. Topco's administration and activities Each of the nine chapters has its own constitution and bylaws which, however, are virtually identical. Each chapter has its own officers and committees. Each constitution provides that only those employees who have worked for the respondent for a year, are over 21 years of age and are American citizens, may be officers of Topco or mem- bers of the executive committee. There is some doubt whether Topco is permitted to strike. An opinion prepared by Topco's attorney states that the appeal had to be to "reason and common sense." The general understanding, however, was that Topco could strike, but in case of a strike in any division, the other eight chapters will not be implicated in any manner and "each chapter will have to stand on its own feet." After its completion, Topco chapter committees held conferences with the management and settled some grievances. Two chapters, however, had no grievance committees because, according to their z< Several of the leaders and members of Topco ascribed the inception of Topco and their participation the,ein to their hostility to "outside " organization. Thus McGregor, in a letter addressed to the other Topco Chapter presidents, wrote : "We originally set up this Association in Canton for the purpose of protecting our jobs and also to eliminate the possibility of any national or international association entering into our Company." 24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD presidents, they had no grievances. In the middle of July each of the nine Topco chapters requested of the respondent exclusive bargain- ing rights for the employees in its division. The respondent, by identical letters to the nine chapter presidents who made the request, agreed to recognize Topco for its members only 22 Topco made no demands for a contract. Its attorney stated that respondent was not obligated to sign a contract and that Topco was not ready to demand one. At least one employee, at a chapter meeting, suggested that Topco ask for a contract, but the chapter president opposed the suggestion. After its first rapid organization, interest in Topco dwindled. At least one chapter held no meeting for the members between July 15, 1937, and the time of the hearing. In general, Topco had considerable difficulty in collecting dues, and, as one president observed, "We charge dues but we don't get them." Several Topco members expressed dis- satisfaction with its procedure and felt that the organization was not to establish "any real good definite purpose for the activities." The evidence shows that, as a result of such dissatisfaction, there were during the summer substantial defections by Topco members to the Brotherhood and the United. The weakness of Topco, its policy to- ward striking, and its hostility to outside unions as expressed by its leaders coincides with the respondent's expressed desires as found in Section III-A above. 3. Contribution of support to Topco; use of the respondent's facilities The record shows that the rapid growth of Topco was not accom- plished without the aid of the respondent's equipment, facilities, and time. Certain items are admitted. Thus it appears that 30 gallons of gasoline were supplied to employees who transported 4 or 5 fellow employees to the first meeting of Topco, Chapter III. A company truck and trailer were used by employees, during working hours and with the approval of the foreman, to haul chairs for at least one meet- ing of Chapter III. Widespread solicitation and collection of dues oc- curred on company time and property, often in the presence of and without objection by foremen. Topco leaders admitted that they solicited membership and collected dues "just whenever I run into one of them." Company cars were frequently used for Topco business : Stewart, a chapter president, admitted having driven a company car 130 miles in one evening to attend a meeting. Merlo, an active Topco member, also used a company car to attend meetings and collect dues; McGregor, who was employed at Canton, not only used a company car 22 Thereafter, each of the nine chapters filed petitions for investigation and certifica- tion with the Eighth Regional office. OHIO POWER COMPANY 25 to attend at least three Topco presidents' meetings 23 in Columbus, and several branch meetings 24 elsewhere, but was driven to these meetings by one Gallagher, a clerk in the Canton office. Although McGregor testified that Gallagher had company business to transact in Columbus on the first occasion, the record shows that Gallagher, who was not an officer of Topco and had no ostensible reason for so doing, attended the Topco presidents' meeting and waited the entire day to drive McGregor back to Canton. No explanation is made for Gallagher's subsequent journeys to Columbus. Further, miscellaneous use of other company equipment is undenied; McGregor on one occasion used the respondent's transmission system to make a long-distance telephone call to another Topco president; George Flint, president of Chapter II, admitted he used a company mimeographing machine to prepare Topco statements; an office ste- nographer typed Topco letters on a company typewriter. Finally, it is admitted that except in the case of the trip of John Burns, the president of Chapter VI, the respondent permitted the presidents and officers of Topco to abandon their work for each one of the five Topco presidents' meetings held during the summer and fall of 1937 in Canton and Columbus. Although these Topco officers often were absent from their work for a full day to engage in Topco affairs, the respondent neither objected nor made deductions in their pay for time so lost. The respondent has various explanations for these occurrences. It explains the use of the gasoline on the ground that its custom is to furnish gasoline to employees who use their own private cars to transport other employees to safety, promotional, and social meet- ings. It claims that Gilbert Tallman, the assistant storeroom clerk who supplied the gasoline to employees who attended the Topco meet- ing, did so without authorization and because he thought that the re- spondent's usual custom was applicable. Tallman, however, dis- tributed at least some of the gasoline the day after the Topco meet- ing. Even after he attended the meeting, therefore, Tallman was still under the impression that it was a company meeting and that employees were entitled to gasoline for transportation to it. Simi- larly, the respondent explains the hauling of chairs as a customary favor to employees when they hold fish frys or conventions; that it was the respondent's custom to permit employees who are on call 2 Immediately after the various chapters of Topco were created, Topco leaders decided to hold occasional meetings for the presidents and other officers of each chapter , in order that they might discuss their common problems and exchange ideas. 4 Since each Topco chapter covered a large area, so that general meetings for all members of the chapter were difficult, smaller groups in each chapter occasionally held meetings in the particular area in which they worked. 26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 24 hours a day to take occasional days off; that if in the performance of ordinary company business those employees who are on call for 24 hours are given the use of a car, such employees, because of the difficulty of checking whether the cars are used for company business only, are permitted to use the car for private purposes. Moreover, it is claimed that the respondent was equally generous in its permitting the United and the Brotherhood to solicit on company time and property, and that the use of the mimeograph machine, the transmis- sion system, and the stenographer was a matter which it could not prevent. The peculiar nature of the respondent's organization, entailing as it does a certain amount of unsupervised freedom of the actions of its employees, would lead us to give weight to these contentions if the cumulative effect of this generosity were not so great. When taken together, the respondent's net contribution to Topco was con- siderable and the total aid rendered to it cannot lightly be dismissed 25 Thus, for example, the Topco presidents' meetings were ordinarily attended by the president of each chapter as well as by another officer. Eighteen employees, therefore attended five meetings, each of which apparently took the employee away from his work for a full day. A rough approximation of the time spent by these employees on this particular phase of Topco business would barely fall short of 90 working days.26 Nor are other of the respondent's explanations borne out by the record. McGregor, who was allowed such free use of company cars, did not, as discussed above, use his own company car but was sup- plied with the car of Gallagher, who acted as chauffeur for Mc- Gregor. Further, it does not appear that all of the 9 Topco presi- dents who were permitted leaves fall within the category of em- ployees who are on 24 hours call daily. McGregor was a collector in the credit department. Flint, president of Topco Chapter II, was engaged in "contacting commercial customers in the commercial and industrial departments." J. E. Sherwood, president of Chap- ter V, is a substation operator. John Burns, president of Chapter VI, is a store clerk. The respondent did not attempt to show that these employees, or any of the other Topco officers who accompanied them to the Topco presidents' meetings, belonged to the group whose 2'Topco and the respondent, however, submitted in evidence many receipts showing Topco's payment for ordinary expenditures such as postage , printing, meeting halls, etc. No charge was made for meeting places either for the five Topco presidents' meetings or for the Chapter I meetings . The various owners, according to Topco, contributed these free. 20 The wages of one Topco chapter president were deducted by the respondent for one meeting he attended. 01110 POWER COMPANY 27 work entitled them to occasional leaves for a full day without deduc- tion in pay. Finally, the respondent's claim that it accorded to the United and the Brotherhood equally generous treatment is scarcely sup- ported by the record. There is no evidence that the United or the Brotherhood were allowed to share the respondent's facilities equally with Topco.27 Moreover, the respondent's cordial treatment of Topco is in sharp contrast to the hostility described in Section III-A which it showed against the United's activities in the service division, the only division in which the United was active. Nor were the respondent's supervisory officials wholly inactive in assisting Topco's rapid growth. Ralph Hiester, chief clerk at the respondent's office in Dennison, informed Byron Jones and one Boyd, employees of the respondent, of a Topco meeting and requested them to attend. Hiester stated that it was "not company orders" that they go, whereupon Baldwin, the assistant chief clerk, who was present, remarked "Well, you can read between the lines." Hiester offered Jones transportation to the meeting and stated "If you boys are smart, you'll be there." Baldwin denied that either he or Hiester made these remarks, but admitted that he had said that these em- ployees' "presence was required at that meeting the same as everybody in the district to understand what was going on." Baldwin further admitted that Hiester had informed several employees of the Topco meeting. Hiester, the principal actor, was not called upon to deny having made the statements attributed to him by Jones. We find that the incident occurred as testified to by Jones. Similarly Edith Hollingshead, chief clerk at the Fostoria office, was active in Topco affairs, soliciting membership and collecting dues. Although the re- spondent denies that either Hollingshead or Hiester are supervisors, the evidence shows that each is in charge of a staff of 4 to 6 clerks. They have, it is true, no power to hire or discharge . Hiester's assist- ant, however, admitted that the staff under Hiester reports to and takes orders from Hiester "as routine work." E. D. Chapman, division manager, further admitted that Hollingshead "does dominate the duties in that particular group" and "in a sense" supervises the clerks. We find that Ralph Hiester and Edith Hollingshead are supervisory employees of the respondent and that they encouraged membership in Topco. 21 The evidence does show, however, that there was some solicitation on company time and property by both the United and the Brotherhood, that the United held a meeting in a park owned by the respondent but devoted to public use, that Dolan "told Wilson [the Brotherhood representative] to go out and talk with" the employees, and that Dolan permitted Fauver, a C. I. 0. organizer, to address a meeting of the employees as described above. 28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The evidence shows that the respondent's generous treatment of Topco, and the activities of supervisory officials 28 had their effect in impressing the employees with respondent's close relationship to Topco. The belief was common that Topco meetings were company meetings. Thus, several employees testified that they attended the first Topco meetings because they understood "everybody was sup- posed'.' to go; Baldwin stated that he told the employees that their "presence was required the same as everybody else in the district to understand what was going on." When asked at the hearing why he had not attended the first Topco meeting, Pollack, an employee, re- plied, "Well, it was my duty to work; it was my trick, so I thought that the man that was on duty was excused from any meetings." How widespread was the belief, engendered by these activities described above, that Topco was a company creature, even after it had been in existence for some time is illustrated by the description, given by Dolan, general manager of the service division, of a visit paid him by Topco representatives to request Dolan's aid. Dolan testified that when he refused his aid and told them he must remain impartial, "Those fellows looked at me in amazement. They sat there dumfounded. They were positive, I suppose, that I was back of the thing. Those boys walked out with heads down because they were sure that I was going to make it easy for them." Thus aware of the common belief that the respondent was sup- porting Topco, the respondent not only took no steps to disaffirm such a relationship but, as described above, was most generous in lending color to the belief. We cannot believe, under such circumstances, that membership in Topco was entirely the result of the free choice of respondent's employees. 4. William Steadman As stated above, William Steadman was the key figure in the organization of Chapters II-IX of Topco. The complaint alleges that he was an organizer furnished by the respondent. The specific persons whom Topco and the respondent claim to have been responsi- ble for Steadman's initial participation in Topco's organization are not identified by the evidence. As noted above, he was elected as "general representative" at the second meeting of Chapter I, although 28 The record also shows that it was a common practice for various supervisors to discuss Topco affairs with the respondent 's employees. Thus, Doughty, the general manager of the respondent 's Valley Division, was admitted to have discussed Topco with J. R. Thomas, president of Chapter VIII, several times, asking him "how Topco was getting along " Thus, too, Steadman testified that he "may have had occasion to be working with a foreman or superintendent , or talking, and he would say, 'How is Topco coming along ?' I would say, '0 . K., as far as I know, fine.' 'I am glad of It.'" OHIO POWER COMPANY 29 he was not present and not yet a member of Topco. McGregor attributed the idea of expanding Topco to the respondent's other divisions, and enlisting Steadman's aid in this project, to "a group of these fellows from the general office" who congregated after the second meeting and made the suggestion. McGregor saw Steadman the next day and outlined the plan; Steadman told McGregor that he "was certainly willing to put in what extra time I possibly could in order to convey to these employees in the other divisions anything that was in my power." On June 14, Steadman ]eft Canton and by July 14, Topco organization was virtually completed. Steadman's ordinary work is to check automatic equipment through- out the respondent's State-wide properties. He checks not only indi- vidual current transformers but also the equipment at the "eight or nine hundred" substations scattered through the State. This general type of work not infrequently requires his taking trips for from 2 to 4 weeks in a car supplied by the respondent. He carries his equip- ment with him, but tools are not always required for his work. In addition to these ordinary duties, Steadman, during the period in question, also checked name-plate data. As a result of modernization of equipment in various parts of the State, the respondent's records of equipment had not been brought up to date. Early in April, it was decided by Daniel Morgan, Steadman's superior, that either Steadman or one of the other employees under Morgan should col- lect all the name-plate data as soon as opportunity presented itself. The record amply demonstrates Steadman's extraordinary activity between June 14 and July 14, 1937. In each division at which he arrived, he made contact with several employees, explained the idea and purposes of Topco-often during the day when the employees were working-and had meetings called. He attended the initial meeting of each chapter, conducted the meeting, made speeches, and distributed cards. If, as occurred on at least two occasions, the first meeting did not result in a Topco chapter, Steadman returned for further meetings. It is insisted by the respondent that during this period, Steadman performed his full quota or ordinary work. Steadman stated that he performed his 8 hours' daily work "and what I do after my eight hours' work is up to me." Morgan, Steadman's superior, while admitting that he had known of Steadman's activities on behalf of Topco, testified that Steadman's production of work during this period was "the same as always." Steadman further testified that he did not segregate expenses incurred in connection with Topco. He said, "I cannot believe that any of my expenses were increased in any way whatsoever." 30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These contentions should, however, be viewed in the light of Stead- man's itinerary, compiled from undenied testimony,29 for the period in question : June 14: Canton June 29: Newark ; Canton June 15: Lima June 30: Zanesville June 16-19: Tiffin July 4-5: Cambridge ; Coshocton ; June 21: Newark Newcomerstown June 22: Steubenville July 6: Cambridge; Dennison; June 23: East Liverpool New Philadelphia; Newcomers- June 24: East Liverpool; Wheel- town; Coshocton ing, W. Va.; Bellaire July 7: Newcomerstown June 25: East Liverpool; Steuben- July 8: Zanesville, Newark; ville Columbus June 26-29: Portsmouth July 9: Columbus The deviousness of this route and the distances between the various places he visited become apparent when his itinerary is traced on a map of this territory. Steadman's itinerary was wholly lacking in any logical pattern which might seem to be called for if he were intent on doing his ordinary work for respondent. The route is replete with revisits and retracking. When asked at the hearing whether he ever went "to any division expressly for the purposes of organizing," Steadman replied, "Well, that is a little of a hard question to answer. I was very much enthused about getting this organization started ... I could be in any part of the division that I so desired to go at that time." In all these places, Steadman was reported to have been engaged in some activities on behalf of Topco. Throughout the entire journey, he used a company car. Although a work report and expense ac- count are filed with the accounting department the respondent did not offer in evidence such documents pertaining to Steadman. Depite the fact that a great many witnesses testified to having seen and talked to Steadman during the days of this period, the record, except for one or two isolated instances, is devoid of evidence that any employees actually saw Steadman engaged in his ordinary work. Moreover, the itinerary shows that Steadman spent at least a night and a full day in Columbus, although respondent has no equipment there with which Steadman could be concerned.30 19A few of the dates testified to are approximate ; it is clear, however, that this itinerary is substantially accurate. ° Morgan attempted to explain Steadman's presence in Columbus on the ground that Columbus was a normal stopping-over place on the long drive from Portsmouth to Canton. Steadman, however, came to Columbus from Zanesville and Newark , which are east of Columbus while Portsmouth is south. Nor does Morgan's explanation account for Steadman's remaining in Columbus the day of July 9. OHIO POWER COMPANY 31 Under all the circumstances, and in view of his circuitous route and his constant absorption in Topco affairs and in view of the re- spondent's knowledge thereof, we cannot believe that Steadman's activities in behalf of Topco were accomplished without the respondent's authority. Conclusions concerning the respondent's relationship to Topco The foregoing findings impel us to the conclusion that the respond- ent assisted and dominated Topco. Through its various supervisors, the respondent was active in its hostility to the United's organiza- tional efforts. In this setting of the United's organizational cam- paign and the respondent's opposition thereto, Topco was created with the active encouragement of some of the respondent's super- visors and with the passive encouragement of many more. In the face of the general belief among the employees that Topco was company dominated, Topco's organization was aided by its use of the respondent's cars, time, and other facilities, and by the unre- strained activities of Steadman. Topco's weak structure, its lack of aggressiveness, its admitted hostility to "outside" labor unions all indicate that it was an organization which sprang up in response to the respondent's expressed desires. We find that the evidence introduced by the respondent and Topco does not refute the conclusion, impelled by the above affirmative evidence of company assistance, that Topco is the respondent's creature. Although they claim that certain employees in Canton were responsible for the original idea of forming an unaffiliated or- ganization, neither Topco nor the respondent have identified or produced those employees.31 Nor has the respondent satisfactorily accounted for the widespread use of company cars, or McGregor's use of Gallagher as his chauffeur, or the freedom with which Topco officers were permitted to abandon their work without deduction in pay in order to engage in Topco business. Finally, Topco and the respondent have failed satisfactorily to ac- count for Steadman's participation in Topco. Although he was the key figure in Topco's organization, they have not identified or pro- duced the employees who are claimed to have suggested that Stead- man expand Topco to the remaining divisions of the respondent. And, despite the grave suspicions concerning Steadman's status, arising from the evidence of Steadman's journeys and constant Topco activities, and from the absence of evidence that he did his ordinary 8 'The remarkable speed with which Topco, Chapter I, was created and supplied with membership cards, etc ., in Canton during the late afternoon of June 7, 1937, has been described above. 32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD work, the respondent did not produce his work record or expense account during this period, made no attempt to segregate his ex- penses incurred in Topco business, and could offer no satisfactory explanation for his presence in Columbus. Under all these circumstances, we conclude that Steadman was an organizer furnished by the respondent to organize Topco, and that the creation of Topco was achieved with the aid and support of the respondent. We find that the respondent has dominated and interfered with the formation and administration of Topco Employees Association, Chapters I-IX, and has contributed support to it. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the respond- ent described in Section I above, have a close, intimate, and substan- tial relation to trade, traffic, transportation, and communication among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since the respondent has engaged in unfair labor practices, we shall order the respondent to cease and desist therefrom and to take cer- tain affirmative action designed to effectuate the policies of the Act and to restore as nearly as possible the conditions which existed prior to the commission of the unfair labor practices. We have found that the respondent has dominated and interfered with the formation and administration of Topco Employees Associa- tion, Chapters I-IX, and has contributed support to it. In order to effectuate the policies of the Act and free the employees of the respondent from such domination and interference, and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed them by the Act, we will order the respondent to withdraw all recognition from Topco as represent- ative of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, rates of pay, hours of employment, and conditions of work, and to disestablish it as such representative.82 Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : 32 See Consolidated Edison Co., Inc. et al. v. National Labor Relations Board, 59 Sup. Ct. 206 (1938 ), where the Court said : The continued existence of a company union established by unfair labor practices or of a union dominated by the employer is a consequence of a violation of the Act and renders ineffectual any order restraining the unfair labor practices. OHIO POWER COMPANY CONCLUSIONS OF LAW 33 1. United Electrical, Radio & Machine Workers of America, Local 729; Locals B-759 and B-981, International Brotherhood of Electrical Workers; and Topco Employees Association, Chapters I-IX, are labor organizations within the\meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of and contributing support to Topco Employees Associa- tion, Chapters I-IX, 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 in 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. ORDER Upon the basis of the above 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, The Ohio Power Company, 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 Topco Employees Association, Chapters I-IX, or the formation and administration of any other labor organization of its employees, and from contributing financial and other support to Topco Employees Association, Chapters I-IX, or any other labor organization of its employees; (b) Maintaining surveillance of or employing any other means of espionage for the purpose of ascertaining and investigating the ac- tivities of its employees in connection with any labor organization; (c) From in any other manner interfering with, restraining, or co- ercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Withdraw all recognition from Topco Employees Association, Chapters I-IX, as a representative of any of its employees for the 34 DECISIONS Off' NATIONAL LABOR RELATIONS BOARD purposes of dealing with the respondent concerning grievances, labor disputes, rates of pay, wages, hours of employment, or other condi- tions of employment, and completely disestablish Topco Employees Association, Chapters I-IX, as such representative; (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 withdraws all recognition of Topco Employees Association, Chapters I-IX, as a representative 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 employment, and that the respondent completely disestablishes it as such representative; (c) Maintain such notices for a, period of at least sixty (60) con- secutive days from the date of posting; (d) Notify the Regional Director for the Eighth Region in writ- ing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith.