Southwestern Gas & Electric Co.

In the Matter of SOUTHWESTERN GAS & ELECTRIC COMPANY and INTER- NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS Case No. C-482.-Decided October 06, 1939 Gas and Electric Utility Industry-Interference, Restraint, and Coercion-- Discrimination : discharge for union activity-Regular and Substantially Equiva- lent Employment : employment obtained elsewhere not considered as-Reinstate- ment Ordered : discharged employee-Back Pay: awarded discharged employee. Mr. Samuel Lang, for the Board. Mr. R. L. Arnold and Mr. William H. Arnold, Jr., of Texarkana, Ark., for the respondent. Mr. E. D. Bieretz and Mr. James Preston, of Washington, D. C., for the Union. Mr. Willard Y. Morris, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Brotherhood of Electrical Workers, herein called the Union, the Na- tional Labor Relations Board, herein called the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued its complaint dated January 10, 1938, against Southwestern Gas & Electric Company, Shreveport, Louisiana, herein called the respond- ent, alleging that the respondent had engaged in, and was engaging in, unfair labor practices affecting commerce within the meaning of Sec- tion 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the com- plaint, accompanied by notices of hearing, were duly served upon the respondent and the Union. In respect of the unfair labor practices, the complaint alleged in substance (1) that on or about May 20, 1937, the respondent discharged and thereafter refused to reinstate Jim Heizer, an em- 16 N. L. R. B., No. 54. 512 SOUTHWESTERN GAS & ELECTRIC COMPANY 513 ployee, for the reason that he had applied for membership in, or joined, the Union and had assisted it and had engaged in concerted activities for the purpose of collective bargaining and other mutual aid and protection; and (2) that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act by the discharge of and refusal to reinstate Heizer, and by various other acts such as spying on meetings of the Union, advising employees that they would be discharged if they joined the Union, questioning employees to de- termine if they were members of the Union, and issuing a notice addressed to all employees advising them about joining a union. Pursuant to notice, a hearing was held at Texarkana, Arkansas, on January 20, 21, and 22, 1938, before James L. Fort, the Trial Examiner duly designated by the Board. The Board and the re- spondent were represented by counsel and participated in the hear- ing. 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 opening of the hearing, the respondent filed a motion to dismiss the complaint on the ground that the Board had no juris- diction of the subject matter. The Trial Examiner reserved decision upon this motion at the hearing and denied it in his Intermediate Report. The ruling is hereby affirmed., The respondent also filed a motion to make the allegations of the complaint more definite and certain. The Trial Examiner denied this motion. The ruling is hereby affirmed. The respondent thereafter filed an answer denying that it had engaged in the alleged unfair labor practices. The Trial Examiner refused to admit in evidence respondent's Ex- hibit No. 2, a letter addressed to the president of the respondent, written by the vice president of Central Illinois Public Service Com- pany, in regard to the reasons for the discharge of Heizer by the latter company. We are of the opinion that this ruling was errone- ous. The ruling is hereby reversed and the exhibit admitted in evidence. During the hearing, counsel for the Board moved to amend the pleadings to conform to the proof in so far as the proof showed that the Texarkana-Arkansas Division of the respondent 'referred to in the complaint is actually two divisions, the Texarkana and the Arkansas Divisions. The Trial Examiner granted this mo- tion. The ruling is hereby affirmed. During the course of the hearing other rulings were made by the Trial Examiner on motions and on objections to the admission of evidence. The Board has reviewed these rulings of the Trial Exam- 'See Section I, infra. 514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD iner and finds that no prejudicial errors were committed. The rul- ings are hereby affirmed. Subsequent to the hearing, the respondent filed a brief and renewed its motion to dismiss the complaint. Thereafter, the Trial Examiner filed his Intermediate Report, dated March 14, 1938, copies of which were duly served upon all parties, in which he found that the respond- ent had engaged and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from its unfair labor practices and that it offer full reinstatement with back pay to Heizer. Thereafter, the respondent filed exceptions to the Intermediate Report. On October 27, 1938, and on July 11, 1939, pursuant to notice duly served upon all parties, oral argument, in which counsel for the respondent and the Union participated, was had before the Board in Washington, D. C. The Board has reviewed all the exceptions to the Intermediate Re- port and finds them without merit, except as they are consistent with the findings, conclusions, and order set forth below. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, Southwestern Gas & Electric Company, is a Dela- ware corporation with its principal office and place of business in Shreveport, Louisiana. The respondent is engaged in (1) generating, buying, transmitting, selling, and distributing electric energy for light, power, and other purposes in the States of Arkansas, Texas, and Louisiana; (2) buying, transporting, selling, and distributing natural gas in the State of Mississippi; (3) pumping, storing, dis- tributing, and selling water in the State of Arkansas; (4) manu- facturing, storing, distributing, and selling ice in the State of Texas; and (5) distributing and selling gas and electric appliances and ac- cessories in the States of Texas, Arkansas, and Louisiana. Eighty per cent of the respondent's total income is derived from the sale of electricty. The respondent's principal generating plant is located at Shreveport, Louisiana. Approximately 45 per cent of the respondent's revenue from the sale of electricity comes from custom- ers in the State of Texas. The respondent's ,Shreveport plant sends 30 per cent of its output of electric energy, amounting to 50 per cent of the electricity used in Texas by the respondent, to that State. Ap- proximately 20 per cent of the respondent's revenue from .the sale of electricity is derived from customers in the State of Arkansas, and I SOUTHWESTERN GAS & ELECTRIC -COMPANY' 515 part of the electricity sold in this State by the respondent is supplied by its Shreveport plant. The respondent's substation and offices at Texarkana, Arkansas, supply electricity and deliver electric appli- ances and accessories to customers in 'Texarkana,. Texas. According to the testimony of Lanston Ashford, the respondent's operating superintendent, the respondent buys some supplies and equipment in large quantities" for use in Arkansas," Texas, and Louisiana, which come from points outside these three States. Throughout the territories which it serves in the States of Arkansas, Texas, Louisiana, and Mississippi the respondent has con- nected to its systems over 67,000 customers for electricity, more than 4,000 customers for gas, and more than 1,000 customers for water. The respondent supplies electricity to 150 cities and communities, including Shreveport, Louisiana, and Texarkana, Texas-Arkansas; gas service to 6 cities and communities, including Biloxi, Mississippi ; and water and ice to 25 cities and communities. In the area which it serves, the respondent is dominant in the electrical field and has no considerable competition. The respondent supplies 90 per cent of the electricity used in the east Texas oil fields. Exclusively de- pendent upon the respondent for their supplies of electric energy are: (1) the western Arkansas coal mines; (2) extensive portions of the services of the Southern Bell Telephone and Telegraph Company, Inc., the Southwestern Bell Telephone and Telegraph Company,, Inc., the Western Union Telegraph Company, Inc., and the Postal Telegraph Company, in Louisiana, Arkansas, and Texas; (3) build- ings and important services of the United States Government and of the State and municipal governments in these three States; (4) railroads and railroad terminals in the same three States, including the Chicago, Rock Island and Pacific Railroad, the Louisiana and Arkansas Railway Lines, the Texas and Pacific Railway Company, the Southern Pacific Lines, and the Missouri Pacific Lines; (5) newspaper and radio stations and also airports and airlines in these three States, including the United States Army airfield at Shreve- port, Louisiana; and (6) practically all the industrial and commercial units and systems located and operating in the territory in which the respondent sells electricity. Important commercial, industrial, gov- ernmental, and public utility services depend upon the respondent exclusively for their supplies of gas in the territory served by the respondent in the State of Mississippi, and for their supplies of ice in the territory served by the respondent in the State of Texas. The respondent employs approximately 600 persons in the operation of its plants. The respondent is controlled by the Central and South West Util- ities Company, which owns all the respondent's common stock. The 516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Central and South West Utilities Company is, in turn, a subsidiary of The Middle West Corporation. Conclusions with respect to the respondent's relation to commerce It is evident from all the above findings (1) that the respondent receives "some supplies and equipment . . . in large quantities" in interstate commerce, and that a labor dispute between the respondent and its employees, interrupting the respondent's operations, would seriously affect the flow of these "supplies and equipment" in inter- state commerce; (2) that the respondent transmits large quantities of electric energy across State lines by means of equipment serviced by its employees, and that a labor dispute between the respondent and its employees, interrupting the respondent's operations, would seriously affect the transmission of electric energy across State lines, and the servicing of equipment; (3) that large areas in the States of Texas, Louisiana, and Arkansas are almost entirely dependent upon the respondent as a commercial source of electric energy, that large areas in the State of Mississippi are dependent upon the respondent as a commercial source of gas, and that large areas in the State of Texas are dependent upon the respondent as a commercial source of ice; and (4) that a cessation of the supply of power, gas, and ice by the respondent, such as would tend to accompany a labor dispute be- tween the respondent and its employees, (a) would tend to burden and obstruct the operations of various instrumentalities of interstate transportation and communication by compelling them to use emergency substitutes for their normal supply of power, gas, and ice, as well as by causing in some instances complete shut-downs, and, in others, temporary interruption of service, (b) would directly cause a cessation or curtailment of the operations of the businesses supplied by the respondent with power, oil, and gas and engaged in shipping and receiving commodities in interstate commerce, and (c) would have an effect on interstate commerce and communication substan- tially equivalent to that caused by simultaneous labor disputes in the respondent's business and in all the businesses served by the respond- ent and engaged in operating the instrumentalities of interstate com- merce and communication or in shipping and receiving commodities in interstate commerce.2 R Matter of Consolidated Edison Company of New York, Inc. and United Electrical and Radio Workers of America, affiliated with the Committee for Industrial Organization, 4 N. L. R. B. 71, 75-83; order enforced, as modified as to other issues, in Consolidated Edison Company of New York, Inc. v. National Labor Relations Board, 305 U. S. 197 (1938). SOUTHWESTERN GAS & ELECTRIC COMPANY II. THE LABOR ORGANIZATION INVOLVED 517 International Brotherhood of Electrical Workers is a labor organ- ization affiliated with the American Federation of Labor, admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The discharge of Jim Heiner; interference, restraint, and coercion Jim Heizer first worked for the respondent as a lineman from May until July 1927, when he voluntarily left the respondent's employ. Previously, Heizer had had 15 years' experience in such work. In the latter part of 1927 Heizer returned to the respondent's employ as a lineman, but 2 years later he again quit of his own accord. From January 1935 until his discharge on May 20, 1937, Heizer again worked for the respondent, as a first-class lineman. During 1937 Heizer worked with a crew of four men : Foreman Bert Davis, who had been Heizer's foreman at all times during his employment with the respondent; Jasper Mabry, a second-class line- man; Charlie Almond, a lineman's helper; and Tom Aubrey, truck driver and handy man. The Union and the respondent in 1934 signed a contract covering the respondent's union employees in its Louisiana Division. On April 16, 1937, the respondent and the Union signed separate agree- ments covering the union employees in the Louisiana and East Texas Divisions. The employees of the East Texas Division, where Heizer was working-in 1936 and 1937, had been organized by the Union in the early months of 1937, preceding the signing of the contract. Between 1929 and 1935, while he was not in the respondent's employ, Heiner joined the Union but subsequently dropped his mem- bership. Early in 1937 Heizer discussed the Union with Almond and later with Mabry. Both Mabry and Almond indicated to Heizer that they wished.to join the Union. About the same time P. J. Trantham, business manager of the East Texas local of the Union, having heard that Heizer was- interested in the Union, interviewed the latter and about a week before Heizer's discharge appointed him contact man for the Union in the respondent's Arkansas and Texarkana Divisions, where Heizer's crew was then working. Sub- sequently Heizer, through Almond and Mabry, contacted other em- ployees of the respondent, including the respondent's Texarkana city line crew, about joining the Union. On May 17, 1937, Heizer signed an application card for membership in the Union, but it was not-until after his discharge that he paid all his $7 initiation fee and was formally initiated. Heizer was the first of the 35 518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees in the Arkansas and Texarkana Divisions eligible for union membership to apply for such membership. Almond and Mabry became union members on May 26, 1937.3 Foreman Davis had issued orders to the members of his line crew forbidding them to associate or discuss wages or other working conditions with the members of the respondent's other line crews, including the Texarkana city crew. On the morning of May 20, 1937, Davis was informed by a member of the Texarkana city crew that Almond had told him the rates of pay of the Davis crew. Davis angrily confronted Almond and accused him of. disobeying orders. Almond denied the accusation. Davis then told Almond, "If it was not for conditions, I would let you go." Almond described the subsequent occurrences as follows : So, he [Davis] turned to the rest of the crew and myself too and says, "By God, this goes for all of you." He says, "You can, you got to keep your God damn mouths shut." He says, "You go to the grunt 4 around here and tell about your raise the first thing you know it will be in the office," and he says, "They Will all be raising Hell." And he was looking at Mr. Heizer and Mr. Heizer says, "Well, Bert, the wages is known all over the country." And he [Davis] says,'"Now, God damn you, when I want you to talk, I will call your name." And says, "Keep your God damn mouth shut" . . . Mr. Heizer asked him, he says, "Well, don't cuss me." And he [Davis] said, "Now, God damn you, shut up, or I will let you go." And he [Heizer] says, "Well, don't cuss me." And he [Davis] said, "Well, God damn you, you are fired." And he says, "Get your tools off the truck," and Mr. Heizer stepped down off the sidewalk and started behind the truck and he stopped and turned to Mr. Davis and he says, "I will put you through the dew," 5 and Mr. Davis jumped off the sidewalk and grabbed a brush axe off the back of the truck and he says, "You God damn son-of-a-bitch, put me through the dew." And Mr. Heizer run around the truck and come back on the sidewalk on the other side, and in the meantime Mr. Davis had laid the axe down and stepped back on the sidewalk, and Heizer told him, 8 J. M. Meyers, an employee of the respondent, testified that on the evening of the day of Heizer's -discharge, Heizer, Mabry, and Almond attempted in his presence to telephone Trantham and obtain application cards for the Union. Meyers testified that he received the "impression" that all three men desired application cards. Heizer testified that the attempt to telephone Trantham was for the purpose of rushing through the membership of the three employees. Both Holzer and Trantham testified that Heizer's application card, dated May 17, 1937, and introduced in evidence, was signed by Heizer in Trantham's presence that day. We credit the testimony of Heizer and Trantham. * A lineman's helper. Although the evidence is not clear, this expression apparently means, "I will get even with you." i SOUTHWESTERN GAS & ELECTRIC COMPANY 519 "You will not call me no son-of-a-bitch." And he [Davis] said, "I will take that back, but God damn you, you are fired. Get your tools off the truck." He [Heizer] went and got his tools, and with his tools in his hand, came back on the sidewalk, and Mr. Aubrey was sitting there, and Mr. Heizer says to him, "Tom, you are the cause of this." And Mr. Aubrey, he jumped up and grabbed the brush axe and Mr. Heizer taken his hammer and drawed it back to defend himself, and Mr. Mabry got the axe from Mr. Aubrey, and I, got Mr. Heizer's hammer. Heizer corroborated the testimony of Almond, describing the events relating to his discharge after Davis' rebuke of Almond as follows : And then he [Davis] carne on back and he paced up and down a little bit and he came over and said to me, "By God, they've got to keep their mouths shut," and he said "the first thing we know they will be saying we have agitated in the office," and he said, "They will raise hell," and I said, "Bert everybody knows the conditions in East Texas. It is no secret." He looked at me and he said, "Goddam you, keep your mouth shut" . . . I said to him, "Don't be cursing me," and he said, "Goddam you, keep your mouth shut, if I want any advice from you I will ask for it," and then said, "Get your Goddam tools and get off the job" . . . Davis jumped down with the brush axe and I run around the truck and he laid down the brush axe but he had called me a son-of-a-bitch in the meantime, and he laid down the brush axe and I went back over to Davis and I said, "Davis, you are not going to get by with calling me a son-of-a-bitch," and he said, "I will take that back, I am sorry I said that." Mabry corroborated the above testimony of Almond and Heizer. Davis testified that, after learning that Almond had talked to a member of the city crew, he called Almond asides and rebuked him; that Heizer then interrupted his conversation with Almond and said, "That is a damn lie"; 7 that he then told Heizer, "When I want you I will call your name, get the hell out" ; that Heizer replied, "Don't curse me"; that he said, "Now, listen here, big boy, I will curse you here or anywhere I want to as far as that is concerned, keep your nose out of my business"; that he then discharged Heizer, saying, "We don't need you anymore, you are all the time making trouble, get out"; that when Heizer said, "You think I joined the Union," 8 he denied this e Heizer and Mabry denied that Davis called Almond to one side before rebuking him. 4 Heizer, Almond, and Mabry denied that Heizer made this remark. 6 Heizer and Mabry denied that Heizer made this remark. 247383-40-vol. 16 -34 520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD assertion; that he seized. the pick axe because he feared that Heizer was going to assault him with the hammer; and that Aubrey seized a pick axe only in self-defense when threatened by Heizer with a pick axe. On direct examination Aubrey, a witness for the respondent, corroborated Davis' testimony concerning the events relating to Heizer's, discharge. On "cross-examination, however, Aubrey first tes- tified that he was too far away from Almond, Davis, and Heizer to hear what any of them said until Davis told Heizer, "When I want you I will call your name." When counsel for the Board then pointed out to Aubrey that, according to the latter's testimony on direct examina- tion, he, could not have heard Heizer tell Davis, "That is a damn lie," and asked Aubrey if he had heard this remark, Aubrey testified, "I think so," and insisted that Heizer made this statement only after Davis had told Heizer, "When I want you I will call your name," and that Davis had addressed Heizer before the latter spoke. The Trial Examiner who observed all of the foregoing witnesses when they testified at the hearing and commented on their demeanor in his Intermediate Report, credited the testimony of Almond,; Mabry, and Heizer concerning the above events. In view of the Trial Ex- aminer's findings and of the confused nature of Aubrey's testimony, we find that the testimony of Almond, Mabry, and Heizer, set forth above, is to be credited. We find the facts to be as set forth above in their testimony. Foreman Davis, on direct examination and at first on cross-examina- tion, insisted that he discharged Heizer solely for "butting in" and because "he [Heizer] gave me a swear word when I was talking to a man." Later on cross-examination Davis testified that he discharged Heizer both for "butting in" and for being unable to get along with the other members of the crew because of a quarrelsome and conten- tious disposition. Andrew Patterson, chief engineer and ' the im- mediate superior of Davis, testified that several days after-Heizer's discharge, when he questioned Davis concerning this incident, Davis informed him that Heizer had been discharged because of his quarrel- some character which prevented his getting along with the other mem- bers of the crew, and in particular because of his attempted assault upon Aubrey. The respondent's answer and the authorization made out at Davis' orders to remove Heizer from the respondent's pay roll state that Heizer was discharged "because of inability to get along with others of the crew." Inasmuch as, according to the testimony of all the witnesses con- cerning Heizer's discharge, Davis had discharged Heizer before Heizer and Aubrey quarrelled, it is clear that Heizer's quarrel with Aubrey could not have caused his discharge. . . The respondent introduced evidence showing that when Heizer was in its employ between 1927 and 1929 (1) he was attacked by an SOUTHWESTERN GAS & ELECTRIC COMPANY 521 employee whom he had cursed; (2) he attacked another employee who dropped a transformer on his foot; (3) he had a fight with a third employee, the brother of Foreman Davis, and on another occa- sion attempted to assault this employee; and (4) that another em- ployee allegedly quit because of a dislike for Heizer. The respondent also introduced in evidence a letter from the Central Illinois Public Service Company for whom Heizer worked between 1929 and 1931, stating that Heizer had been discharged in 1931 because of his con- tentious character and reluctance to obey orders and instructions. We do not believe that this evidence has any relation to the discharge of Heizer by the respondent in 1937. Davis himself testified that when he discharged Heizer in 1937 he gave no thought to the various inci- dents concerning Heizer in 1928 set forth above. Moreover, when Heizer left the respondent's employ in 1929, C. L. Leighton, manager of the respondent's offices at DeQueen, Arkansas, voluntarily gave Heizer a letter stating that Heizer's service record with the respondent had been "very good," and that the respondent would be very glad to rehire Heizer at any time. In addition, in 1935 when Heizer was in Illinois, Foreman Davis sent him a telegram informing him that he could obtain employment with the respondent and subsequently hired Heizer. Such evidence shows clearly that the respondent did not consider that any of the above incidents in 1927 or 1928 in any way made Heizer an undesirable employee. The evidence shows that in 1935 Heizer engaged in a street fight; that in 1936 Heizer and Mabry had a brief struggle. while at work; and that in July 1936, L. L. Baker, an employee, quit his job because of his "personal" dislike of Heizer. However, at oral argument, the respondent's counsel stated: "I do not think you will find a crew but you do not have bickering and repercussions and fighting." Although Aubrey testified that Heizer often "fussed" at him, he admitted that he and Heizer had no more quarrels than employees working together daily ordinarily would have. Nor does the evidence show that Heizer was unable to get along with the other members of his crew. Baker testified that Heizer "ordinarily got along with the foreman and some of the boys very well." Almond, Heizer's helper, testified that he had no difficulty working and getting along with Heizer. Mabry testi- fied that he was at fault in the fight with Heizer in 1936 and that since then he and Heizer had been friends." It is highly improbable that Foreman Davis would have sent for Heizer in 1935 if he had found him difficult to get along with previously. In fact, Foreman Davis and Heizer had been good friends between 1927 and 1935. Although Heizer testified that for about a month before his discharge Y In view of this testimony of Almond and Mabry, we give no credit to the statements of Foreman Davis that Almond and Mabry complained to him about the quarrelsome char- acter of Heizer. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he and Davis had some difficulty getting along with each other, Foreman Davis testified that his friendship with Heizer, although somewhat weakened, continued to be strong until the moment of Heizer's discharge. Aubrey's testimony that he and Heizer had no more quarrels than usual among line crews has already been referred to. And Ted Collier, a line foreman for the L. E. Meyers Construc- tion Company, and a union member, testified that Heizer had worked in his crew for 7 months after leaving the respondent's employ on May 20, 1937, and that he had not found Heizer at all quarrelsome or troublesome. There is no evidence that because of Heizer's dis- position or for any other reason the work of Heizer or. Heizer's crew deteriorated at any time previous to Heizer's discharge. Collier, Almond, and Mabry all testified that Heizer was a very good worker, above the average, and Foreman Davis did not testify to the contrary. In addition, Langston Ashford, the respondent's operating superin- tendent, testified that the Davis crew had an outstanding record, doing "more work and better work" than the other line crews. The evidence clearly does not support Davis' assertion that he discharged Heizer for "butting in." On the contrary, Heizer made no attempt. to butt in at the time Davis was rebuking Almond and spoke respectfully to Davis only when the latter addressed, or apparently addressed, a remark to Heizer and the other members of the crew. Nor did Heizer show any signs of insolence or insubor- dination prior to Davis' discharge of him. In view of the above evidence, the long and excellent employment record of Heizer with the respondent, and the long and close friend- ship between Heizer and Davis, we are of the opinion that none of the reasons advanced by Patterson and Davis adequately explain, Heizer's discharge. During the negotiations preceding the signing of the April 16 contract between the Union and the respondent, Trantham informed Ashford that the Union did not want the Davis crew to work in the Louisiana Division. Shortly after the signing of the contract, at the insistence of Trantham, who stated that he feared that Davis would not live up to the terms of the contract, the respondent trans- ferred the Davis crew from the East Texas Division to the Arkansas and Texarkana Divisions. Davis admitted at the hearing that he resented this transfer and the Union's part in it. In fact, Davis testified at the hearing that in the presence of his crew in 1937 he told his brother, then a member of the crew, that if the latter joined the Union he, Davis, would "bust his brains" out. Davis also testi- fied that when the closed shop was discussed among the crew he. "would get so damn mad about it I could . . . bust a guy's mouth open"; and that he told the crew that he would not join the Union SOUTHWESTERN GAS & ELECTRIC COMPANY 523 -because "we are working for too good a company to join the union, we don't have to join it." Aubrey testified that Davis sometimes used "pretty strong" language about the Union during talks with the members of the crew and informed the crew that he did not believe in the Union and would not join it. Almond, Heizer, and Mabry also testified, and Davis and Aubrey denied, that during April 1937, on several occasions, Davis threatened the members of his crew with discharge if any of them joined the Union. Mabry and Almond also testified that on two occasions when Davis had been displeased with the work of another employee of the respond- ent who belonged to the Union, Davis told the members of his crew, "That is the kind of damn fellows that belong to the union." Davis testified that he merely told the crew, "I didn't approve of such union stuff as that." Mabry,and Almond also testified, and Davis denied, that Davis told the crew that by signing a union membership card an employee signed an affidavit against the respondent. In view of Davis' own testimony showing his hostility toward the Union and his expressions of it to the crew, we credit the testimony of Heizer, Almond, and Mabry set forth above. . Davis denied that prior to Heizer's discharge he knew or suspected that Heizer belonged to or was acting for the Union. Mabry, Almond, and Heizer testified that because of Davis' anti-union remarks to them they tried to conceal their union activities from him. Davis and Aubrey both testified, and Mabry, Almond, and Heizer denied, that shortly before Heizer's discharge Heizer had spoken disparagingly of the Union and stated that he would not join it. In view of Heizer's activity on behalf of the Union at this time, we do not credit this testimony of Davis and Aubrey. Davis was well aware of the activity of the Union in the East Texas Division where his crew worked or had worked. The evidence establishes that Davis continually sought to discover the attitude of the members of his crew toward the Union and constantly suspected them of being sympathetic toward the Union. Thus, Mabry testified that in early May 1937 Davis asked him to go for a walk and during the walk began "pumping" him in order to find out what the other members of the crew had said to Mabry about joining the Union and what Mabry thought about the Union. Mabry also testified that at this time Davis advised him not to join the Union, saying that the Union men in the East Texas Division were lazy and "would not stick to- gether" and "were running" the Davis crew out "like dogs." Mabry and Almond testified that in April, when Mabry returned from a trip to a nearby town during which he had contacted other employees of the respondent who belonged to the Union, Davis questioned Mabry whether he had heard "anything about the union" and if so, 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD what; and that when Mabry indicated that he had informed some of the men that he might be interested in the Union, Davis said : "God- dam you, there you go, you are always talking too much. You ought to keep your mouth shut . . . stay away from them . . . [do] not even associate with them." Davis denied the above testimony of Mabry and Almond, but in view of Davis' hostility toward the Union and his expression of that hostility to his crew, we do not credit his denials. Aubrey admitted at the hearing that he informed Davis that Mabry and Almond were sympathetic toward the Union. Al- though Aubrey denied knowing Heizer's feeling toward the Union, he testified : "I guess he' [Heizer] liked it all right." Aubrey denied ever telling Davis that Heizer "liked" the Union, although he testified that after Heizer had been discharged he and Davis had discussed whether or not Heizer was a union member. The small size of Davis' crew and the daily contacts between Davis and the crew members; Davis' careful observance and questioning of the members of his crew to discover their union activities; the numerous conversations between Davis and the members of his crew concerning the Union; and Davis' readiness to suspect a crew member of union activity, lead us to find that before Heizer's discharge, Davis either knew or suspected that Heizer was sympathetic toward, and active on behalf of, the Union. Prior to Heizer's discharge, Davis had, as shown by the testimony of Mabry previously set forth, warned the members of his crew not to associate with union men. Immediately after Heizer was dis- charged, Davis told Mabry not to associate with Heizer, on June 14 told both Mabry and Almond not to associate with Heizer, asking Mabry if Heizer was a union member, and late in June when Mabry admitted seeing Heizer, warned Mabry not to do so. Moreover, ac- cording to the testimony of Mabry, Almond, and Aubrey, on July 8, Davis asked Mabry and Almond if they were members of the Union. According to the testimony of Mabry and Almond, when they admitted that they were members, Davis asked to see their union cards and if Heizer had "led" them into the Union and was the cause of their joining. Davis did not deny this testimony, which we credit. Finally, Audie Marshall, a union member not in the respondent's employ, testified that during the first week of June 1937 he asked Davis for a job as a lineman in Davis' crew; that Davis asked him whether or not he had a union card, saying that he had "just let one fellow go" a short time before, who had "got smart with him" after joining the Union; and that Davis stated that he did not think that a man who "belonged to the union was . . . the right kind . . . to be on the job." Davis did not deny this testimony of Marshall, which we credit. In the light of the above evidence, and SOUTHWESTERN GAS & ELECTRIC COMPANY 525 in view of Davis' violent hostility toward the Union and the fact that he knew or suspected that Heizer was active on behalf of the Union, we find that he discharged Heizer on May 20 because of the latter's activity on behalf of the Union. Independently of the above reasons, we believe that Heizer's dis- charge was discriminatory. On April 16, 1937, the respondent and the Union had entered into a contract covering the union members in the East Texas Division where Davis' crew then worked. As we have already set forth, Davis bitterly resented the fact that shortly after the signing of the contract he and his crew were transferred from the East Texas Division at the request of the Union. The evi- dence also shows that Davis expressed resentment not only toward the Union but also toward the contract. Pursuant to the terms of this contract the Davis crew received an increase in wages. When announcing this increase in wages to the crew, Davis according to the testimony of Mabry which Davis did not deny and which we credit, belittled his men in a vulgar manner and told them : "No lineman in the world is worth a dollar an hour." Davis repeatedly cautioned the members of his crew not to associate or discuss their wages or working conditions with members of other line crews of the respondent. Davis and Aubrey testified that the reason for this order was to prevent Davis' crew from causing dissatisfaction among the other crews. However, the fact that, according to the testimony of Davis and Ashford, the wages of the crews not covered by the terms of the union contract were nevertheless raised at the same time in the same amount as those of crews covered by the contract, although the working conditions and hours of the other crews were not changed in accordance with those under the contract, indicates that this reason of Davis and Aubrey is questionable. In view of Davis' hostility toward the Union and the union contract, we find that Davis forbade the discussion of their wages and working conditions by his crew with other crews because he felt that his crew might use such dis- cussions to induce other employees of the respondent to join the Union. Decisive evidence of this fact is contained in Davis' remarks to Heizer at the time of the latter's discharge when Davis told him that the crew must be silent about their wages because "the first thing we know they will be saying we have agitated in the office . . . They will raise hell." Whatever Davis' motive may have been, his order interfered with the rights of the members of his crew, guaranteed in Section 7 of the Act, to attempt to organize the respond- ent's employees by informing them of one of the advantages of be- longing to the Union-namely, the obtaining of an increase in wages through a contract between the respondent and the Union. Since Heizer was discharged by Davis for attempting to assert, and protect 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the exercise of, these rights of the members of the crew to engage in the union activity of discussing their wage raises, secured by the contract between the Union and the respondent, his discharge mani- festly was a.violation of Section 8 (3) of the Act. The respondent asserts that it is not bound by any of the anti- union acts or statements of Foreman Davis. We are unable to agree with this assertion. The evidence shows that Davis had au- thority to hire and discharge the members of his crew, subject only to the approval of Patterson and other officials of the respondent. Moreover, Ashford testified he could not recall that Davis' action in hiring or discharging an employee had ever been disapproved. The respondent's officials testified that they warned Davis not to show hostility toward the Union or interfere with any of its activities. However, the respondent's officials, through statements of the union representatives such as Trantham, were notified of Davis' anti-union attitude. Patterson admitted that he knew that Davis' views were, in many respects, hostile to the Union. There is no evidence that at any time the respondent rebuked Davis for his anti-union statements and activity or disavowed them to its employees. On the contrary, Patterson expressly approved Heizer's discharge upon the basis of Davis' word alone. Under such circumstances, we are of the opinion that the respondent cannot disclaim responsibility for the conduct and activity of Davis as set forth above.lo We find that the respondent discharged Heizer because of his union activity. The respondent, by discharging Heizer, discrimi- nated in regard to his hire and tenure of employment, thereby dis- couraging membership in a labor organization. We find that the respondent, by the discharge of Heizer and by other acts and conduct set forth above, including the statements, orders, and conduct of Davis, interfered with, restrained, and coerced. its employees. in the exercise of the rights guaranteed in Section 7 of the Act. - At the time of his discharge Heizer was earning a dollar an hour. Fourteen and one-half work-days after his discharge Heizer secured employment as a lineman at $1.10 an hour with the L. E. Meyers Construction Company of Shreveport, Louisiana. At the time of the hearing Heizer was still employed by the Meyers Com- pany. Heizer testified that he desires to return to his former posi- tion in the employ of the respondent; and that he considers Texar- kana his home, since he had his furniture stored there and since he is developing a farm near there. The respondent contends that 10 Swift c& Company v. National Labor Relations Board. 106 F. (2d) 87 ; American Mann- faotnring Company and Nu-Art Employees, Inc. Y. National Labor Relations Board, 309 U. S. 629. SOUTHWESTERN GAS & ELECTRIC COMPANY 527 Heizer obtained substantially equivalent employment elsewhere and thereby lost his status as an employee of the respondent. Although we do not concede that the obtaining of other regular and sub- stantially equivalent employment would deprive the Board of power to reinstate an individual who had been discharged for union activity, we find that since Heizer desires to be reinstated by the re- spondent, since he has furniture and a farm at Texarkana which he considers his home, and since he has acquired several years' seniority with the respondent, he had not obtained regular and substantially equivalent employment and did not lose his status as an employee of the respondent." B. Alleged interference, restraint, and coercion The complaint also alleges that the respondent engaged in unfair labor practices within the meaning of Section 8 (1) of the Act by spying on meetings of the Union and by issuing a notice addressed to all employees in the Texarkana and Arkansas Divisions. We have reviewed the evidence and are satisfied that the record does not support these allegations of the complaint. W. E. Bann, the respondent's Texarkana Division Manager, on July 21, 1937, sent this notice to the employees in his Division, and on July 26, 1937, drove slowly past the hall where a union meeting was being.held. However, we are convinced by the evidence, and we find, that Bann drove past the union hall on an errand having no connection with the union meeting and did not spy on it, and that the notice sent by him did not interfere with the rights of the employees guaranteed in Section 7 of the Act. We shall dismiss these allegations of the complaint. 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 sub- stantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices,, we shall order it to cease and desist therefrom. In 11 Matter of Automotive Maintenance Machinery Company and Steel Workers Organizing Committee, on behalf of Amalgamated Association of Iron, Steel & Tin Workers of North America, Lodge 1744, 13 N. L. R. B. 338 , and cases cited in footnote 13 therein. 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD order to effectuate the policies of the Act and as a means of removing and avoiding the consequences of the respondent's unfair labor practices, it is essential that in aid of our cease and desist order the respondent be directed to take certain affirmative action more particularly described below. We have found that the respondent discharged Heizer because of his union activity. The evidence shows that on July 22, 1937, the respondent laid off Mabry and Almond and disbanded the Davis crew. Davis and Aubrey continued to work for the respondent but not as members of a line crew.12 The respondent's officials asserted that the Davis crew was disbanded at this time because there was insufficient work for them since, due to the Union's protests, the crew could no longer work, as it had previously, in the East Texas Division. The work formerly done by the Davis crew in the East Texas Division is now being done for the respondent by an inde- pendent contractor. The respondent asserts that even if Heizer had not been discharged on May 20 he would have been laid off with the two other members of the crew on July 22. Although the respond- ent asserts that Heizer was a construction lineman and that all the many linemen now in its employ are operating linemen, there is no evidence that Heizer, in view of his long experience as a lineman, would be unable to perform the work of an operating lineman. Moreover, the respondent did not establish at the hearing that even if it had laid off Heizer on July 22 it would not have rehired him at some later time previous or subsequent to the hearing. Conse- quently, we shall order the respondent: (1) to offer Heizer immediate and full reinstatement to his former, or a substantially equivalent, position, dismissing, if necessary, any employee hired since May 20, 1937, the date when Heizer was discriminatorily discharged; (2) in the event that employment is not immediately available for Heizer as just set forth, to place Heizer upon a preferential list to be offered employment in his former or a substantially equivalent position as soon as such employment becomes, available and before other persons are hired for such-work; and (3) to make Heizer whole for any loss of pay he may have suffered by reason of his discharge, by payment to him of a sum of money equal to (a) the amount which he normally would have earned as wages from May 20, 1937, the date of his dis- charge, to July 22, 1937, the date when Heizer's crew was disbanded, and (b) the amount which he normally would have earned as wages, if the respondent had given him the first first-class lineman's job which became available after his crew had been disbanded, from the date when he would have been given this job until, the date either "Davis and Aubrey are engaged in clearing rights of way, unskilled work paying about half the ordinary wages of a first-class lineman. SOUTHWESTERN GAS & ELECTRIC COMPANY 529 ,of the respondent's offer of reinstatement, as provided in Section (1) above, or of the respondent's placement of Heizer on a preferential list, as provided in Section (2) above, less his net earnings 13 during the period from the date of his discharge to the date of the offer of reinstatement or placement on a preferential list. In complying with the provisions of our Order, set forth above, the respondent shall follow a system of seniority to such extent, if any, as has heretofore been applied in the hiring and discharge of first-class linemen. Upon the basis of the foregoing findings of fact and upon the entire record in the case the Board makes the following : CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in regard to the hire and tenure of employ- ment of Jim Heizer, and thereby discouraging membership in Inter- national Brotherhood of Electrical Workers, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) 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, Southwestern Gas & Electric Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Electrical Workers, or any other labor organization of its employees, 13 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 91590, 8 N. L. R. B. 440. Monies re- ceived for work performed upon Federal, State, county, municipal , or other work-relief projects are not considered as earnings, but, as provided below in the Order, shall be deducted from the sum due the employee, and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county, municipal, or other govern- ment or governments which supplied the funds for said work-relief projects. 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD by discharging or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire or tenure of employment, or any terms or conditions of their employment because of membership or activity in connection with any such labor organization ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights 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 policies of the Act: (a) Offer to Jim Heizer immediate and full reinstatement to his former position or to a substantially equivalent position without prejudice to his seniority and other rights and privileges previously enjoyed by him, dismissing, if necessary, in the manner set forth above in Section V, entitled "Remedy," any employee hired since May 20, 1937, or, in the event that employment is not immediately available for Heizer, place his name upon a preferential list to be offered employment as soon as such employment becomes available and before other persons are hired for such work, in the manner set forth in said Section V ; (b) Make whole Jim Heizer for any loss of pay he may have suffered by reason of the respondent's discrimination in regard to his hire and tenure of employment by payment to him of a sum of money equal to (a) the amount which he normally would have earned as wages during the period from May 20, 1937, the date of such dis- crimination, to July 22, 1937, the date when his crew was disbanded, and (b) the amount which he normally would have earned as wages, if the respondent had given him, in the manner set forth above in Section V, entitled "Remedy," the first first-class lineman's job to become available after his crew had been disbanded, from the date when he would have been given this job until the date either of such offer of reinstatement, or of such placement of his name on a prefer- ential list, as provided in paragraph 2 (a) of this Order, less his net earnings 14 during the period from the date of his discharge to the date of the offer of reinstatement or placement on a preferential list; providing that the respondent shall deduct from the amount other- wise due Heizer a sum equal to that received by him for work per- formed upon Federal, State, county, municipal, or other work-relief projects during the periods for which back pay is due him under this Order and shall pay any such amount deducted to the appropriate 14 See footnote 13, supra. SOUTHWESTERN GAS & ELECTRIC COMPANY 531 fiscal agency of the Federal , State, county , municipal, or other gov- ernment or governments which supplied the funds for such work- relief projects; (c) Post immediately in conspicuous places throughout its plants and warehouses in its Texarkana and Arkansas Divisions notices to its employees stating ( 1) that the respondent will cease and desist as provided in paragraphs 1 (a) and (b) of this Order and (2) that the respondent will take the affirmative action set forth in paragraphs 2 (a) and (b) of this Order; (d) Maintain such notices for a period of at least sixty ( 60) con- secutive days from the date of posting ; (e) Notify the Regional Director for the Fifteenth Region in writing within ten (10 ) days from the date of this Order what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint , in so far as it alleges that the respondent has interfered with, restrained , or coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, by surveillance of union meetings or by the issuance of a notice to its employees , be, and it hereby is, dismissed.