Gulf Public Service Co.

In the Matter of GULF PUBLIC SERVICE COMPANY and INTER- NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 790 Cases Nos. R-1010 and C-1049.-Decided December 21, 1939 Electric Utility, Electric Appliance Sales and Service and Ice Industry- Interference, Restraint, and Coercion-Unit Appropriate for Collective Bar- gaining: power-plant operators , power-plant firemen , power-plant maintenance men, assistant chief engineer, line superintendent, line foreman , line crew, serv- ice men, and meter readers in the power and distribution departments, ex- cluding office, clerical and supervisory employees not hereinbefore mentioned- Representatives, : proof of choice : stipulation as to membership in Union-Col- lective Bargaining : refusal to bargain in good faith , refusal to negotiate an agreement with any labor organization , refusal to recognize the Union ; re- spondent ordered to bargain collectively with the Union upon request-Strike: caused by respondent's unfair labor practices-Discrimination: sustained as to employees discharged for participating in the strike ; dismissed as to one em- ployee discharged prior to the strike-Reinstatement Ordered: all strikers- Back Pay: ordered to all strikers from date of discharge until offer of rein- statement-CompanyDominated Union.: assistance in formation and organiza- tion of Cooperative ; respondent ordered to refuse recognition to Cooperative as representative of employees-Investigation of Representatives : petition dismissed in view of order to bargain. Mr. Harry C. Duncan and Mr. 'E. P. Davis, for the Board. Smithdeal, Shook cf Lefkowitz, by Mr. W. H. Shook and Mr. J. L. Shook, of Dallas, Tex., and Norman, Stone c Norman, by Mr. Sum- mers A. Norman, of Jacksonville, Tex., for the respondent. Mueller & Mueller, by Mr. Karl H. Mueller, of Fort Worth, Tex., for the I. B. E. W. Mr. Theodore W. Kheel, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges, amended charges, and supplemental charges duly filed by International Brotherhood of Electrical Workers, Local 790, herein called the I. B. E. W., the National Labor Relations Board, herein called the Board, by Jay Oliver, Acting Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a complaint dated 18 N. L. R. B., No. 74. 562 I GULF PUBLIC SERVICE COMPANY 563 July 29, 1938, and by Edwin A. Elliott, Regional Director for the Sixteenth Region, issued a supplemental complaint dated August 11, 1938, against Gulf Public Service Company, Jacksonville, Texas, herein called the respondent, alleging that the respondent had en- gaged in and was engaging in unfair labor practices affecting com- merce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 . (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and supplemental complaint accompanied by notices of hearing were duly served upon the respondent and the I. B. E. W. The complaint alleged in substance (1) that the respondent dis- charged and refused to reinstate H. D. Stevens because of his activity and membership in the I. B. E. W.; (2) that the respondent refused to bargain with the I. B. E. W. in regard to conditions of employ- ment, although the I. B. E. W. represented a majority of the em- ployees of the respondent in an appropriate unit; (3) that in protest against the refusal to bargain 13 named employees engaged in a strike on July 9, 1938; (4) that the respondent discharged these 13 em- ployees because of their membership and activity in the I. B. E. W.; (5) that the respondent imported and employed strikebreakers in the place of the employees discharged, requested the striking employees to quit the I. B. E. W. and return to work, and hired armed guards for the purpose of terrorizing the striking employees; and (6) by each of these acts and by various other acts the respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The supplemental complaint alleged in substance that the respondent had dominated and interfered with the organization and administration of a labor organization known as the Gulf Public Service Company Employees Cooperative, herein called the Cooperative. On August 5, 1938, the respondent filed an answer to the complaint and on August 17, 1938, a supplemental answer to the supplemental complaint denying that it had engaged in the alleged unfair labor practices or that the re- spondent was engaged in commerce within the meaning of the Act. On August 6, 1938, the I. B. E. W. filed with the Regional Director for the Sixteenth Region a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent and requesting-an investigation and. certification of representatives pursuant to Section 9 (c) of the Act. On August 9, 1938, the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered an investigation and au- thorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and acting pursuant to Article 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules and Regulations, further ordered that the representation proceeding and the proceeding with respect to the alleged unfair labor practices be consolidated for the purposes of hearing. On August 11, 1938, the Regional Director issued a notice of hearing, copies of which were duly served upon the respondent and the I. B. E. W. Pursuant to notice a consolidated hearing was held in Jacksonville, Texas, from August 8 to August 10, 1938, inclusive, and from August 18 to September 6, 1938, inclusive, before L. Richard Insirilo, the Trial Examiner duly designated by the Board. Prior to the hearing the respondent moved to dismiss the complaint upon the merits and on the ground that it was not engaged in commerce within the mean- ing of the Act. This motion was renewed at the beginning of the hearing, at the termination of the Board's case, and at the conclusion of the hearing. At the commencement of the hearing, the Cooperative moved to intervene in the proceedings. The Trial Examiner denied .all of the aforesaid' motions. The Board, the respondent, and the I. B. E. W. 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 upon the issues was afforded all parties. During the course of the hearing the Trial Examiner made rulings on other motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On November 12, 1938, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties. He found that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and (5) and Section 2 (6) and (7) of the Act, by dominating and interfering with the formation and administration of the Cooperative and by contributing support thereto, by discharg- ing and refusing to employ H. D. Stevens and the 13 named em- ployees who struck on July 9, 1938, and by refusing to bargain col- lectively with the I. B. E. W. as the representative of a majority of the employees of the respondent in an appropriate unit. He recom- mended that the respondent cease and desist from engaging in the unfair labor practices and, affirmatively, disestablish the Cooperative, offer back pay to H. D. Stevens found to have been discriminatorily discharged, but undesirous of obtaining reemployment with the re- spondent, offer full reinstatement with back pay to the 13 other em- ployees found to have been discriminatorily discharged, and bargain with the I. B. E. W., upon request, as the exclusive representative of the respondent's electrical employees, with respect to rates of pay, wages, hours of employment, and other conditions of employment. GULF PUBLIC SERVICE COMPANY 565 On November 29, 1938, the respondent filed exceptions to the Inter- mediate Report and to various rulings of the Trial Examiner. On February 28, 1939, and March 20, 1939, respectively, the respondent and the I. B. E. W. filed briefs in support of their contentions. On September 21, 1939, pursuant to notice served upon all the parties, oral argument was held before the Board in Washington, D. C. Only the respondent was represented before the Board and par- ticipated in the hearing. The Board has considered the briefs filed by the parties and the exceptions filed by the respondent. Except for those which are consistent with the findings, conclusions, and order set forth below, the Board finds the exceptions 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 is a Delaware corporation with its principal office and place of business at Jacksonville, Texas. It produces electricity at its plant in Jacksonville, Texas, and transmits to and distributes this electricity in 15 towns located in Texas, with an approximate total population of 25,000. It is also engaged in the manufacture of ice in Cherokee and Smith counties, Texas, and in the distribution of ice in Jacksonville, Troup, Rusk, and Alto, Texas. In addition, it sells, installs, and services refrigerators, stoves, and other electrical appliances in the afore-mentioned towns as well as in Overton, Texas. Approximately 80 persons are employed by the respondent to assist in the operation of its various enterprises. Exclusive of labor and salaries, the respondent's total operating expenses amount to approximately $200,000.00 annually. The respondent sells electrical appliances each year amounting in value to $60,000, of which 90 per cent are obtained from the Westing- house Electric Supply Company, of Dallas, Texas. These electrical appliances are manufactured by the Westinghouse Electric Corpora- tion 1 in States other than the State of Texas. The respondent also purchases annually meters, transformers, cables, copper wire, insula- tors, and other supplies amounting in value to approximately $12,000 from the Allis Chalmers Manufacturing Company and the Westing- house Electric Company, both of Dallas, Texas, and the Nehring 1 The stipulation from which these and other facts pertaining to the business of the respondent are taken , recites that the electrical appliances purchased from the Westing- house Electric Supply Company had "come to rest" in Texas . This stipulation refers to the Westinghouse Electric Supply Company , the Westinghouse Electric Company, and the Westinghouse Electric Corporation. It is not clear wehther these are all the same or three separate companies. 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Electric Works of De Kalb, Illinois. Over 50 per cent of these sup- plies are obtained from the Nehring Electric Works of Illinois. Each year the respondent sells approximately two hundred tons of ice to the American Refrigeration Transit Company and the Pacific Fruit Express Company, both of Houston, Texas, for use in connec- tion with the shipment of tomatoes. This ice is loaded by employees of the respondent into refrigerator cars standing on the tracks of the International-Great Northern Railroad Company and the Texas & New Orleans Railway Company, which are railroads incorporated in Texas with lines wholly in Texas but connecting with interstate rail- road lines. The refrigerator cars, loaded with tomatoes, are trans- ferred to the tracks of these connecting lines and some of the cars are delivered to places outside of Texas. In order to satisfy the needs of its customers in Overton and Arp, Texas, the respondent purchases each month approximately 150,000 kilowatt hours of electricity from the Southwestern Gas & Electric Company. The main plant of the Southwestern Gas & Electric Com- pany is located in Shreveport, Louisiana, and the electricity produced in Shreveport is transmitted through lines which the Southwestern Gas & Electric Company maintains in Texas.2 For the distribution of the electricity which it buys and produces, the respondent maintains 5,185 meters. It includes among the con- sumers of its electricity, the Hurricane Refining Company, which pur- chased 679,115 kilowatt hours for the operation of its plants from April 1937 to March 1938. This company refines approximately 6,500 barrels of oil a day, the greater part of which it ships to places outside Texas. Its principal raw material is crude oil, 75 per cent of which is transported to its plants from Louisiana. The respondent also -furnishes electricity to the following concerns in Texas which either purchase raw materials in States other than Texas or ship finished products to places outside Texas or both : the Crown Coca- Cola Bottling Company, the Jacksonville Candy Company, the Aber Box Company, the Montgomery Gin, the Shaw Gin, and the Latti- more Gin. The operations of these companies would be materially affected if the respondent should cease furnishing electricity. Ex- cluding the Jacksonville Candy Company, whose annual purchase of electricity is not given, these companies bought 90,093 kilowatt hours of electricity from the respondent during the year commencing in April 1937 and extending to March 1938. During the same period, 8 The Southwestern Gas & Electric Company also purchases electricity - generated by the Texas Power and Light Company at its plant in Trinidad, Texas. The respondent contends that the electricity which it draws from the lines of the Southwestern Gas & Electric Com- pany is ultimately derived from the electricity produced in Trinidad , Texas. While we cannot determine from the record to what extent the electricity bought by the respondent has its source in Trinidad, Texas, it is clear that the sale of this electricity is made directly to the respondent from the Southwestern Gas & Electric Company of Louisiana. GULF PUBLIC SERVICE COMPANY 567 the respondent sold a total of 16,227 kilowatt hours of electricity to United States Post Offices located in the towns serviced by the re- spondent. This electricity was used to provide lighting and to operate the motors of canceling machines. In addition to the rail- roads mentioned above, the respondent sold electricity to the St. Louis-Southwestern Railway Company, also a Texas corporation with lines wholly within Texas but which connect with independent rail- road systems operating in States other than Texas. These railroads purchased 21,554 kilowatt hours of electricity from April 1937 to March 1938, which they used for lighting passenger and freight sta- tions and street crossings. For the same period, the respondent sold 45,476 kilowatt hours of electricity to the Two States Telephone Company, the Gulf States Telephone Company, and the Southwestern Bell Telephone Company. This electricity was used to furnish power and lighting, facilitating the transmission of telephone calls within Texas and from and through Texas to points outside of Texas. The respondent also sold 5,367 kilowatt hours of electricity to The Western Union Telegraph Company from April 1937 to March 1938. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Electrical Workers, Local 790, af- filiated with the American Federation of Labor, is a labor organization admitting to membership employees of the respondent in the power and distribution departments. Gulf Public Service Employees Cooperative is a labor organization admitting to its membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. The refusal to bargain collectively; the strike; the discharges; interference, restraint, and coercion 1. The appropriate unit The complaint alleges that a unit consisting of the employees in the power and distribution departments 3 in Cherokee, Anderson, Smith, and Rusk Counties, Texas, excluding office, clerical, and super- visory employees, constitutes a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. This allegation was not denied by the respondent in its answer. 8 The complaint would confine the unit, In effect, to the employees engaged either In the production , transmission , or distribution of electricity . It would omit the employees en- gaged in the sale and distribution of electrical appliances and the manufacture, sale, and distribution of ice. 283029-41-vol. 18-37 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The respondent would, however, place a broader interpretation upon the words "power and distribution departments" than the I. B. E. W. It would include 12 employees in addition to the 22 employees who both the respondent and the I. B. E. W. agree are included in the appropriate unit.4 On the other hand, the I. B. E. W. insists upon the inclusion of the line superintendent, a supervisory employee whom it has admitted to membership since its inception, if the assistant chief engineer, whom the respondent wants in the unit, is included. The following classifications of employees are those which both par- ties would include in the unit : A. Power plant operators------------------ -------------- °[4] B. Power plant firemen_ ----------------------------------- [3] C. Power plant maintenance men--------------------------- [2] D. Line foreman------------------------------------------- [1] E. Line crew ----------------------------------------------- [5] F. Service men -------------------------------------------- [5] G. Meter readers ------------------------------------------- [2] The respondent argues that the following classifications of employees should also be included within the appropriate unit while the I. B. E. W. contests their eligibility for inclusion : H. Local managers°---------------------------------------- `[7] 1. Ice and/or electric employees 1°-------------------------- [4] J. Purchasing agent and storekeeper ------------------------ [1] A. Store clerk --------------------------------------------- [1] In addition the parties are not in agreement concerning the following employees : L. Line superintendent------------------------------------- -[1] M. Assistant chief engineer ---------- ----------------------- [1] The respondent would exclude the line superintendent and include the assistant chief engineer while the I. B. E. W. argues that if the 4 We will refer in our discussion of the appropriate unit to the situation existing prior to July 9, 1938, when the members of the I. B. E. W. went out on strike allegedly as a result of the unfair labor practices of the respondent. The striking employees were immediately discharged and replaced by other employees . See Sections 3 and 4, infra, for a discussion of the strike and the events preceding the strike. 6 Within the brackets are contained the number of employees in each classification prior to July 9, 1938. Unless otherwise indicated , the employees worked in Jacksonville, Texas. ° The line crew is composed of linemen , ground men , and a truck driver who assists in the work of the line crew. ° One service man worked in Jacksonville, Texas, and one each of the other four in Over- ton, Arp, Alto , and Troup , Texas. 8 Although classified as meter readers, these men performed such other duties as meter testing , patrolling street lights , collecting, and trouble shooting. ° The respondent had one local manager in charge of its operations in each of the follow- ing towns : Overton , Arp, Frankston , Rusk, Bullard, Alto, and Troup, Texas. 1° The respondent bad two employees in this classification in Rusk, one in Alto, and an. other in Troup, Texas. These employees divide their work between the sale and distribu- tion of ice and the distribution of electricity . They are discussed more fully below. GULF PUBLIC SERVICE COMPANY 569 assistant chief engineer is included, then the line superintendent also falls within the appropriate unit 11 Collective bargaining between the I. B. E. W. and the respondent prior to 1937 resulted in a contract between the I. B. E. W. and the respondent which was in effect from July 1935 to July 1936. This contract, which is the only contract executed by the respondent with the I. B. E. W. or, so far as the record reveals, with any labor organ- ization, recognized the I. B. E. W. as "sole bargaining agent for the employees in the employ of the Gulf Public Service Company in the Jacksonville Division in the Mechanical Department (power plant, substation, distribution, and meter departments)' so long as the majority of the employees in said department desire such representa- tion." The contract specified which employees were included within this general recognition clause in providing for minimum rates of pay for particular classifications of employees. The following classi- fications were included : 1. Line superintendent. 2. Line foreman. 3. Linemen. 4. Combination truck and line helper. 5. Line helper, apprentice, or groundmen. 6. Journeyman meter tester. 7. Journeyman meter setter. 8. Trouble man in Jacksonville. 9. All rural combination men. "The respondent , has not been consistent in its claim with respect to the appropriate unit. We have adopted the position of the respondent which we have outlined above from its briefs and exceptions . However, in its exceptions the respondent states that it bad "alleged that the appropriate unit was substantially the same as that found " by the Trial Examiner and specifically adopted his finding of the appropriate unit as its own contention. The Trial Examiner held that "All generation , production, transmission , distribution, and maintenance electrical employees in respondent 's employ, including line foremen (who in respondent's set-up work with tools as part of the line crew under the supervision of the line superintendent, his supervisory authority giving him no right to hire or fire but being limited only to detailing men to particular work), and including combination trouble shoot- ers and local managers , 1. e., competent trouble shooter, who being alone in small communi- ties are given titles of local managers and who act partially in that capacity but who devote the majority of their time to the actual maintenance of the electrical system, and including power plant operators, power plant firemen, line men, meter readers , meter test- ers, maintenance men, ground men in the line crew , and truck drivers in the line crew, constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. Excluded from the appropriate unit are the chief engineer, the line superintendent , and such other supervisory officials who have no direct connection with the accomplishment of the electrical job, whether it be in generation , transmission , distribution , or maintenance . Also excluded are all office em- ployees, appliance salesmen , ice delivery men, and ice pullers." While the Trial Examiner would include only the local managers who work alone , the respondent now insists upon the inclusion of all the local managers . No mention is made by the Trial Examiner of the ice and/or electrical employees , the purchasing agent, or the store clerk , yet the respondent asserts that they should also be included . At the oral argument before the Board, counsel for the respondent questioned the eligibility of the truck driver in the line crew. The respondent had, however , included him in its listing of eligible employees both in its briefs and exceptions and the Trial Examiner , whose findings the respondent adopted, also in- cluded him in the unit. We point out below that he was covered by the contract between the I. B. E. W. and the respondent. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 10. Assistant chief engineer. 11. Watch engineer. 12. Turbine and switchboard operators. 13. Firemen. 14. Maintenance men. The respondent terminated this contract after it had been in exist- ence for 1 year. The extent to which this contract covered the various classifi- cations of the respondent's employees affords in large measure a basis for resolving the conflicting claims of the respondent and the I. B. E. W. with respect to the appropriate unit. The following classifications may properly be included within the appropriate unit: power-plant operators, power-plant firemen, power- plant maintenance men, line foreman, line crew, service men, and meter readers. The I. B. E. W. and the respondent would include them, they are intimately associated either with the production, transmission, or distribution of electricity, and the I. B. E. W. has bargained for them in the past. On the other hand, we see no justi- fication for the inclusion of the purchasing agent or the store clerk. According to Frank C. Rand, district manager of the respondent, the purchasing agent "keeps all the stores; takes charge of them, orders them, purchases them, and takes care of them after they get to the storeroom, and passes them out to the line department on their order." Rand also testified that the purchasing agent did "a certain amount of electrical distribution and transmission engineering." It is clear, however, that he is primarily employed for the purpose of purchas- ing, storing, and distributing supplies and materials. The purchas- ing agent is assisted in this work by the store clerk who, as his title suggests, has general clerical duties. These two employees are only indirectly associated with the electrical operations of the respondent. They have not been considered as part of the appropriate unit in the negotiations which the I. B. E. W. has conducted with the re- spondent in the past. In view of this fact and the nature of their work, we are of the opinion that they should be excluded from the unit. Local managers.-The respondent's plant and principal offices are located at Jacksonville. It also maintains offices in seven outlying towns. These offices are in charge of employees known as local man- agers who are the respondent's representatives in its dealings with the public in each of these towns 12 The local managers in Frankston 12 The respondent insists upon the inclusion of these employees within the appropriate unit, questioning their supervisory eapecity. Except for the local managers in Frankston and Bullard, who are the only employees of the respondent in these two towns, the super- visory status of the local managers is clearly established by the record . Rand, district manager, testified that ". . . In the main , the men in each town are under the local man- GULF PUBLIC SERVICE COMPANY 571 and Bullard are the only employees of the respondent in these two towns while the local managers in the other five towns have under them staffs of varying size.13 In addition to supervising the em- ployees under them, the local managers also perform duties similar to those of employees on their staffs. E. Paul Harlan, local manager in Arp, Texas, stated that his duties consist of "running the office, billing and collecting, contacting the public, and at present meter reading and setting meters." Of course, the local managers in Frankston and Bullard have no supervisory duties. They are, however, the representatives of the respondent in these two towns. The contract between the I. B. E. W. and the respondent, discussed more fully above, does not cover either the two local managers in Frankston and Bullard or the other five local managers. It is confined exclusively to the employees "in the Jacksonville Division in the Mechanical Department." The local managers, as we have stated above, all work outside of Jacksonville. The contract does mention, in specifying minimum rates of pay, employees designated as "rural com- bination men." This is the only classification of employees who are employed outside of Jacksonville and who are covered by the contract. Nowhere in the contract are the local managers mentioned. A "rural combination man," it appears, is another title for the employees whom we have previously classed as service men. Marvin Ragsdale, president of the I. B. E. W., testified that a "combination man" is a "meter reader and service man." L. F. Dunlop, whom the respondent has classified as a service man in Arp, Texas, testified that his duties include "trouble calls, re-fusing transformers, running services, setting meters, reading meters, servicing merchandise, also extensions, etc." The listing of his duties demonstrates the appropriateness of the title "combination man." It is apparent from the record, therefore, that the employees have not, in bargaining with the respondent, included the local managers. Since the employees have established the propriety of a unit which does not include the local managers, we see no reason for adopting a unit contrary to this practice and custom. We shall therefore exclude them 14 ager in that town." Many incidents are set forth In the record wherein their supervisory capacity is revealed. Thus, when the respondent sought to transfer H. D. Stevens from Jacksonville to Overton , Rand mentioned that A. A. Hall , the local manager in Overton, had asked for Stevens. An organizer of the Cooperative testified that he and two other employees had called upon Lloyd Lattimore , local manager in Troup, and "asked permission to see the employees." 13 Prior to the strike on July 9, 1938 , the local managers had the following number of employees under the them : Lloyd Lattimore , Troup , Texas, eight ; Clyde Poore , Alto, Texas, four ; A. E. Laney, Rusk, Texas, two ; A. A. Hall, Overton , Texas, two ; and E. Paul Harlan. Arp, Texas, two. 14 Cf. Iowa Southern Utilities Company and Utility Workers Organizing Committee, Local 109 (C. 1. 0 .) et at., 15 N. L. R . B., 580, wherein we excluded local managers from the unit. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ice and/or electrical employees.-We have, in using the term ice and/or electrical employees, stated the issue with respect to these em- ployees. The I. B.E. W. would exclude them as employees engaged primarily in the ice business while the respondent contends that they perform work in connection with the electrical business and are there- fore eligible for inclusion within the appropriate unit. The four employees involved are : James Salman, employed in Rusk, Texas, Richard Warren in Troup, Texas, Roy Isgate in Rusk, Texas , and 0. K. Chesshire in Alto, Texas. During the hearing, Rand identified Ches- shire as an "ice plant operator," Warren as an "ice plant operator," Isgate as an "ice plant operator and electric serviceman," and Salman as a "service man." Later in the hearing , Rand testified concerning the duties of these men. The duties attributed to Isgate and Chesshire were identical. Both were employed as "ice delivery man, ice plant operator, patrolman, lineman helper, meter setting and removing,- ap- pliance service and house wiring." Warren's duties differed only slightly. They were defined to include "ice delivery , ice plant operator, patrolman, switching, lineman helper, appliance service, appliance delivery." While these three employees, that is Chesshire, Isgate, and Warren, performed certain duties which were related to the electrical business of the respondent, it is apparent that they were employed primarily as icemen . We believe that they should be excluded from the unit for that reason. It also appears that these men were not included in the contract executed by the I. B. E. W. with the . respond- ent. They did not work in or out of Jacksonville and cannot be classi- fied as "rural combination men." For that reason, also , we are of the opinion that they should be excluded from that unit. James Salman appeared as a witness at the hearing . He testified that his job requires him to work 4 hours in the morning in connection with the ice business. This time is spent either in operating the ice plant or in selling ice to customers. In the afternoon, he either reads meters, which takes him about 21/2 days a month, collects bills, which occupies about 6 hours -a month of his time , sets meters, delivers and installs electrical refrigerators and other electrical appliances, and per- forms other related jobs. While Salman divides his time equally between duties connected with the electrical and ice business, we are of the opinion that he should be excluded from the appropriate unit. The exclusive bargaining contract which the I. B. E. W. obtained from the respondent did not include a classification of employees which would cover Salman . We have mentioned previously that the contract was restricted, except for rural combination men, to employees who worked in Jacksonville. Salman, who was employed in Rusk, cannot be classi- fied as a "rural combination man." We shall therefore exclude him from the appropriate unit. GULF PUBLIC SERVICE COMPANY 573 Line superintendent.-The I. B. E. W. insists upon the inclusion of the line superintendent if the assistant chief engineer, whom the re- spondent considers to be in the appropriate unit, is included. While both are supervisory employees, we believe that they fall within the unit. Joseph Atkinson, the line superintendent, has been a member of the I. B. E. W. since it was organized and was also a member of its predecessors. ' The contract hereinbefore discussed covered his job by providing a minimum wage for the line superintendent. It also covered the assistant chief engineer, who was not a member of the I. B. E. W. In view of this bargaining history, we feel that the line superintendent as well as the assistant chief engineer should be in- cluded, despite the supervisory nature of their jobs. In the light of our foregoing discussion, we find that a unit consisting of the power-plant operators, power-plant firemen, power-plant main- tenance men, assistant chief engineer, line superintendent, line foreman, line crew, service men, and meter readers in the power and distribution departments in Cherokee, Anderson, Smith, and Rusk counties, Texas, excluding office, clerical, and supervisory employees not hereinbefore mentioned, constitutes a unit appropriate for the purposes of collective bargaining and that said unit insures to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the I. B. E. W. of a majority in the appropriate, unit The complaint alleges that the respondent refused to bargain collec- tively with the I. B. E. W. at times between July 20, 1937, and July 9, 1938. The respondent's pay roll on July 1, 1937, contained the names of 25 persons within the appropriate unit. Of this number, 16 were members of the I. B. E. W. 15 The following changes occurred in the appropriate unit after July 1, 1937. In October 1937, L. A. Garner, who is not and never has been a member of the I. B: E. W., was made a power-plant fireman. H. S. Gilliam, a member of the I. B. E. W., was injured in October 1937 and 15 The parties stipulated that the membership records of the I . B. E. W. revealed that the following employees were the 16 members of the I . B. E. W. in the appropriate unit : B. W. Andrews ( line crew), J. A. Atkinson (line superintendent ), R. T. Bellamy (line man), 0. P. Caviness (power-plant operator ), W. H. Crow (line crew), L. F. Dunlop ( service man), L. P. Evans ( service man ), S. M. Fulton ( power-plant operator ), H. S. Gilliam (line man), F. G. Gray (line foreman ), M. Grey ( line crew ), A. Griggs ( power-plant fireman), M. Hackett (power-plant operator ), W. G. McKeown (power-plant fireman), W. M. Rags- dale (power-plant operator), and J. J. Richardson ( meter reader ). The following em- ployees in the appropriate unit were not members of the I. B. E. W. : G. Burrill (meter tester), H. S. Dorrell ( service man ), T. J. Fields ( service man ), A. E. Galloway (assistant chief engineer ), 0. L. Garner ( power-plant maintenance man), F. Jacobs (power-plant fire- man), T . McKeown (power-plant fireman ), W. P. Smith (service man), and J. Wallace (power-plant maintenance man). 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had not worked for the respondent up to the time of the hearing, draw- ing compensation for his injuries. Although the record is not clear in this respect, it appears that Gilliam's injuries are sufficiently perma- nent to cancel his tenure as an employee. He cannot be considered as an employee within the appropriate unit after the date of his injury. 0. P. Caviness, a member of the I. B. E. W., ended his employment with the respondent on September 9, 1937. These changes reduced the number of employees in the appropriate unit to 24, decreased the num- ber of members of the I. B. E. W. therein to 14, and increased the num- ber of employees who were not members to 10. This condition did not alter until after the strike of July 9, 1938. Paul Evans, a member of the I. B. E. W., failed to go out on strike and thereafter terminated his membership in the I. B. E. W. He paid his dues to the I. B. E. W. through June 30, 1938. In June 1938, Joseph Atkinson, the line super- intendent, was demoted to Frank Grey's job as line foreman while Grey was put to work in the line crew. This change, it appears, was only temporary, resulting from a general reduction in the size of the line crew. We find, accordingly, that on July 20, 1937, and at all times there- after, the I. B. E. W. had been designated and selected by a majority of the respondent's employees in the appropriate unit. Pursuant to Section 9 (a) of the Act, it was, therefore, on that date, and at all times thereafter, the exclusive representative of all the employees in such unit for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other conditions of employment. 3. The refusal to bargain In February or March, 1934,11 a union, known as the Brotherhood of Edison Employees of America was organized by employees of the respondent. This union changed its name to Brotherhood of Utility Employees of America within 2 or 3 months after its inception. It became affiliated with the I. B. E. W. in May 1935. Shortly after the organization of the first union,17 a committee of the union met with Frank C. Rand, district manager of the respondent, 16 Events occurring prior to July 5, 1935, the effective date of the Act, are considered in order to determine the propriety of the respondent 's conduct since the effective date of the Act, and not as the basis for any findings of unfair labor practices . See N. L. R. B. v. Pennsylvania Greyhound Lines, Inc., et of., 303 U. S. 281, rev'g 91 F. (2d) 178 (C. C. A. 3) and enf'g Matter of Pennsylvania Greyhound Lines , Inc., Greyhound Management Com- pany, Corporation and Local Division No. 1063 of the Amalgamated Association of Street, Electric Railway, and Motor Coach Employees of America , 1 N. L. R. B. 1; Matter of The Western Union Telegraph Company, a corporation and American Communications Associa- tion, 17 N. L. R. B. 34. 17 Our findings concerning the respondent 's refusal to bargain are based primarily on the testimony of William Ragsdale, president of the I. B. E. W., and C . R. Carle, international representative. Ragsdale traced the relations of the I. B. E. W. with the respondent while Carle gave a complete , clear, and convincing account of the bargaining conferences which preceded the strike of July 9, 1938. For the most part and except as indicated below, the respondent neither denied nor contradicted the testimony of these witnesses in this respect GULF PUBLIC SERVICE COMPANY 575 and informed him that the union desired to negotiate an agreement with the respondent. Rand expressed surprise and told the committee that he would have to think the matter over. Another meeting fol- lowed in 2 or 3 weeks which was attended by C. C. Christ, vice president of the respondent. Christ informed the committee at this time "that he didn't see any use of a written agreement, that they [the respondent] didn't make it a practice of having an agreement with the employees, with the union." At a third meeting, Rand reaffirmed that "it just wasn't the policy of the company to make written agreements with employees." In June 1935, after the union had affiliated with the I. B. E. W., a committee of the I. B. E. W. met with Rand and read to him a proposed agreement. From this document, the parties worked out another agree- ment. However, when they reached the subject of salary, Rand threw the agreement down on his desk and stated emphatically that he would not sign it. Another conference was held on or about July 15, 1935, at which time a proposed agreement was again read to Rand. This meet- ing ended when Rand said that "we can't go into the salary question at all, and I won't do it." Rand also told the committee during this meeting that "he just didn't see any use of any working agreement covering employees of the company, that they didn't cover the entire group of employees." 18 Its inability to secure a contract from the respondent forced the I. B. E. W. to strike on July 16, 1935. This strike continued for 1 week and gained for the employees a collective bargaining agreement with the respondent. We have discussed certain provisions of this contract in Section 1, supra, and we have mentioned that it granted the I. B. E. W. exclusive recognition, so long as the majority of the employees desire such representation, for a unit composed of employees engaged in the electrical operations of the respondent. It also pro- vided that it should be effective for 1 year from date and continue thereafter from, year to year unless terminated by one of the parties. The respondent exercised its right to terminate the contract at the end of the first year. On July 24, 1936, the day after the contract had expired, the respondent held a meeting with a committee of the I. B. E. W. At this meeting the respondent was represented by L. L. Ferree, its general manager, S. A. Norman, attorney, and Rand. Ferree acted as spokesman for the respondent and informed the com- mittee that he was in a position to offer the employees a raise in salary if they would continue to work without a written agreement. He added that "he didn't see any use of another agreement." After con- ferring among themselves, the members of the committee elected to is In effect , Rand was arguing that a unit composed only of employees in the electrical operations of the respondent was inappropriate and that the unit should be industrial. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continue to work without an agreement. They were thereafter granted a wage increase. The I. B. E. W. renewed its efforts to secure an agreement from the respondent in June 1937 when Ragsdale and Carle, international representative of the I. B. E. W., called on Rand. Rand informed them that he would have to obtain authority from Ferree before he could consider an agreement. On July 16, 1937, Carle, Ragsdale, and another member of the I. B. E. W. met with Ferree, Rand, and Glen Green,ls the respondent's auditor. Carle told Ferree that he had an agreement in his pocket which he would like to present to him for consideration. He explained carefully "that this agreement as drawn for presentation was for negotiation purposes, and any clauses in it was open for changes and discussion." Ferree asked which were the most important provisions of the agreement. When Carle replied that it "called for first a written agreement, and second, closed shop, and third, wages increases for the members," Ferree answered "that closed shop was out of the question, that there would be no wage in- creases, and that under no condition would he sign a written working agreement" with the I. B. E. W. or any other labor organization. The I. B. E. W. made no further attempt to secure an agreement with the respondent until June .1938. A committee then conferred with Rand who told the members of the committee that he was with- out authority to negotiate an agreement. Ragsdale then wrote to Ferree who stated, in replying to Ragsdale's letter, that he had "designated Mr. Rand to meet with you with authority to act and to discuss with you working conditions with the operations of our company in Texas." On July 5, 1938, representatives of the I. B. E. W. met with Rand and Green. Carle, acting as spokesman for the I. B. E. W., asked Rand if he was authorized to discuss working conditions and, when he had received an affirmative answer, read to him an agreement which had been prepared as a basis for negotiations. When Carle finished reading the agreement, Rand said to him, "You must have your sea- sons mixed up. You think it is. Christmas instead of the 4th of July." He added that "It was against the policy of the Gulf Public Service Company to make a written agreement with any of their employees" and that he was repeating this statement which Ferree had conveyed to the I. B. E. W. the year before. Carle then attempted to convince Rand that an agreement would be beneficial to the respondent as well as to the employees. Rand replied that he disagreed with Carle. He also claimed "that the members of Local 790 [I. B. E. W.] were in the minority as compared with the entire employee pay roll of the Gulf Public Service Company." 19 Also spelled Greene. GULP PUBLIC SERVICE COMPANY 577 Rand was then asked to consider the agreement clause by clause and state which portions were objectionable to the respondent. Rand re- plied "that all of it was objectionable." When Carle persisted in seeking to have Rand particularize the objectionable parts of the agreement, Rand indicated a provision requiring the respondent to supply the men who worked outdoors with rain coats, hats, and rub- ber boots. Rand also averred that there would be no wage increases, which the agreement called for, but probably a reduction in wages with the elimination of the line crew. After a discussion of the possi- ble elimination of the line crew, Carle asked Rand if it would not be more satisfactory if all the electrical employees worked under the same rules and regulations. Rand replied that "he did not believe that would work satisfactory to the company." He added that it would not be satisfactory for the employees in the electrical department since on several occasions non-union employees had told him they did not want to be represented by the I. B. E. W. Carle then asked Rand if it would be possible to negotiate an agree- ment covering only the members of the I. B. E. W. Rand replied that the respondent had tried that and that it had proved very un- satisfactory.20 Carle, nevertheless, continued in his effort to persuade Rand that an agreement would be desirable. He pointed out that the I. B. E. W. had contracts with 127 utility companies in the United States and Canada and to the best of his knowledge they were all well satisfied. Carle finally asked if it was possible to "negotiate some kind of a written agreement" and Rand answered "that an agreement could not be drawn up that would meet their [the respondent's] approval to the extent that he would sign it and put it into effect." Rand was then asked if he would not sign "even if the agreement was good" and replied, "That is right." Rand's testimony is at variance with Carle's statement in this respect. According to Rand, "Mr. Carle asked me if I would sign any sort of a contract to which I replied I would have to see the contract before I would give an answer on that." We credit Carle's testimony. The conference on July 5, 1938, ended when Carle informed Rand that he had .to leave town. They then made an appointment for July 9, 1938. The same parties attended this conference. Carle again tried to read the agreement to Rand who stopped him, stating "that on the prior meeting he had given all his reasons for not wanting to sign a written working agreement" with the I. B. E. W. "and that nothing had happened in the meantime to change his mind, so that it was practically useless to go into the agreement again." The conference 20 The only contract in evidence , diacpssed above, granted the I. B. E. W. exclusive recognition. 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD continued, nevertheless, with the parties digressing into a discussion of many collateral matters. During the conference Rand was asked if he recognized the I. B. E'. W. as the bargaining agent for the electrical employees. He replied that he did not, explaining that non-union employees had told him they did not wish to be represented by the I. B. E. W. The conference ended when Green suggested that he had to leave. Carle then told Rand that he "would be thinking over a way that would make it possible for the local union [I. B. E. W.] to get on agreeable terms with" the respondent. He asked Rand to do the same. Carle added that there was no point in making a definite appointment for a future meeting but that if he or Rand had a "brainstorm" they could get together. That evening the members of the I. B. E. W. voted to strike. We discuss this strike in Section 4, infra. As we have stated above, the testimony given by Ragsdale and Carle pertaining to the respondent's refusal to bargain with the I. B. E. W. was in most material respects undenied and uncontra- dicted by the respondent. Ferree and Christ, general manager and vice president, respectively, did not appear at the hearing. Rand's testimony, while at variance with the accounts given by Carle and Ragsdale in certain details, tends to substantiate their testimony. In view of all the facts presented in the record, we find that the account we have previously given of the negotiations between the respondent and the I. B. E. W., based primarily on the testimony of Ragsdale and Carle, is, in all substantial respects, an accurate description of these negotiations. 4. The strike and the discharges On the evening of Saturday, July 9, 1938, after the bargaining conference discussed above, the members of the I. B. E. W. convened for the purpose of considering the results of this conference. Accord- ing to the minutes of the meeting, read into evidence, Ragsdale and Carle reported to the members that the meeting with Rand had been very unfavorable. A discussion. of the respondent's attitude towards the union ensued and thereafter the members voted unanimously to strike in order to "try and enforce the Gulf Public Service Company into an agreement." The names of the employees who participated in the strike are listed in Appendix A. On Monday, July 11, the Jacksonville Daily Progress, a local news- paper, carried a report of the strike in which Rand was quoted as saying, "All men who went out on strike have been removed from the pay roll." Ragsdale, president of the I. B. E. W., immediately called Rand on the telephone and asked if the statement attributed to him in the newspaper was correct. Rand replied that it was. Ragsdale GULF PUBLIC SERVICE COMPANY 579 conveyed this information to members of the I. B. E. W. Subse- quently, each employee who had gone on strike received a check from the respondent for services previously rendered on which was type- written the words, "Full and Final Payment." The record does not indicate precisely when the respondent replaced the striking employees. Rand testified that a person named Vance Bullard was hired 4 days after the strike, that Oren Sory was em- ployed "about July the 11," and that other named employees were hired "since the strike." In discharging these striking employees, Rand carried out a threat he had made to L. F. Dunlop in the summer of 1936 and to H. S. Gilliam in May 1937. Dunlop was told that he would not have a job with the respondent if he went on strike again and Gilliam was informed that if the members of the I. B. E. W. engaged in a strike, they would be replaced by other employees. 5. Conclusions with respect to the refusal to bargain, the strike, the discharges, and the interference, restraint, and coercion The course of negotiations between the respondent and the I. B. E. W. reveal a persistent determination on the part of the respondent to avoid the execution of an agreement with the I. B. E. W. The respondent's attitude was made manifest immediately after the organization of the Brotherhood of Edison Employees of America when C. CC. Christ informed a committee of the union that he saw no use for a written agreement and that it was contrary to the respondent's practice to make agreements with its employees. The respondent's refusal to negotiate an agreement forced the members of the I. B. E. W. to strike to obtain a collective bargaining agree- ment. While the I. B. E. W. thereby secured a written agreement, the respondent lost none of its resolve to avoid contracting with a labor organization. At the end of the first year, it terminated the contract and offered the members of the I. B. E. W. an increase in wages if they would agree to continue to work without a contract. When the I. B. E. W. renewed its efforts to obtain an agreement in June 1937, Ferree, acting for the respondent, countered with the state- ment "that under no condition would he sign a working agreement" with the I. B. E. W. or any other labor organization. The conferences between the I. B. E. W. and the respondent on July 5 and 9, 1938, reveal again the respondent's determination not to make itself a party to an agreement with a labor organization. Rand announced at the outset of the first meeting that "it was against the policy of the Gulf Public Service Company to make a written agreement with any of their employees." 580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We have repeatedly held that an essential element of the collective bargaining process is a willingness to embody the results of negotia- tions in a signed agreement with the representatives of the em- ployees.21 When the respondent announced and adhered to a policy of avoiding the execution of any kind of an agreement with the I. B. E. W., it thereby placed an insuperable obstacle in the path of collective bargaining. The respondent's policy and practice were tantamount to a refusal to bargain with the I. B. E. W. The re- spondent also made clear to its employees, in this way, that it would not engage in bona fide negotiations with the I. B. E. W. whether or not it represented a majority of the employees within an appropri- ate unit. In this manner, the respondent interfered with, restrained, and coerced its employees in their right to self-organization and collective bargaining.22 The bargaining conferences between the respondent and the I. B. E. W. on July 5 and 9, 1938, were, as we have stated, severely preju- diced by the respondent's refusal at the outset to enter into an agree- ment with the I. B. E. W. In addition, the respondent indicated an unwillingness to discuss and consider the proposals contained in the contract prepared by the I. B. E. W. which, as Carle informed Rand, were to be used merely as the basis for negotiations. Carle assumed the entire burden of attempting to reach some mutually sat- isfactory terms. Rand admitted on cross-examination that he had tendered no counterproposals. In its brief, the respondent argues that the record "shows many negotiations of an amicable nature." It is true that the respondent was courteous to the committees of the I. B. E. W. and granted them audiences when requested. As we have pointed out, however, the Act does not guarantee merely the barren right of discussion. It contemplates the consideration in good faith of the proposals advanced by both parties with a view towards the embodiment of those terms which are mutually satisfactory in an agreement.23 The respondent not only opposed an agreement with the I. B. E. W. and refused to bargain in good faith, but also denied the I. B. E. W. recognition as the exclusive bargaining agency for the electrical employees. Carle asked Rand at the conference held on July 9, 1938, if he recognized the I. B. E. W. as the bargaining agent for the electrical employees and received a negative reply. Rand did add, in u Matter of Inland Steel Company and Steel Workers Organizing Committee and Amal- gamated Association of Iron, Steel and Tin Workers of North America , Lodge Nos. 64, 1010, and 1101, 9 N. L. R. B. 783; Matter of Western Felt Works, a corporation, and Textile Workers Organizing Committee, Western Felt Local, 10 N . L. R. B. 407. 22 Matter of Brashear Freight Lines, Inc. and International Association of Machinists, District No. 9, affiliated with the American Federation of Labor, 13 N. L. R . B. 191. 23 Globe Cotton Mills v. N. L. R. B., 103 F. ( 2d) 91 (C. C. A. 5), enf'g in part Matter of Globe Cotton Mills and Textile Workers Organizing Committee, 6 N. L. R. B. 461. GULF PUBLIC SERVICE COMPANY 581 explanation, "that the members of Local 790 [I. B.' E. W.] were in the minority as compared with the entire employee pay roll of the Gulf Public Service Company." However, since the expired agree- ment established the appropriateness of the unit sought by the I. B. E. W. and the respondent knew that the I. B. E. W. represented a majority therein, this argument affords no " justification for the re- spondent's refusal to bargain. The respondent made the same argu- ment in June 1935 and thereafter recognized the I. B. E. W. as the exclusive representative of the electrical employees. The contract, in which this recognition was granted, fixed the appropriateness of a unit composed of the electrical employees. We find that the respondent has refused to bargain collectively with the I. B. E. W. as the exclusive representative of its employees in an appropriate unit. We also find that the respondent has, by its refusal to bargain with the I. B. E. W. and by the statement and enforcement of its policy against contracting with a labor organiza- tion, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. As a result of the unfair labor practices enumerated above, the members of the I. B. E. W., whose names are listed in Appendix A, struck on July 9, 1938. We find, accordingly, that the strike was caused by the respondent's refusal to bargain with the I. B. E. W. and by its unfair and coercive policy against contracting with labor organizations. 24 On July 11, 1938, the respondent discharged the employees whose names are listed in Appendix A because of their participation in the strike. As we have found, these employees struck as a result of the respondent's unfair labor practices. Under Section 2 (3) of .the Act, they remained employees of the respondent. In discharging these employees, the respondent has discriminated against them because of their membership and activity in the I. B. E. W.25 We find, in consequence, that the respondent has, by discharging these employees because of their activity and membership in the I. B. E. W., dis- 24 Cf. Matter of Brashear Freight Lines , Inc. and International Association of Machinists, District No. 9, affiliated with the American Federation of Labor, 13 N. L. R. B. 191. See also Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472 (C. C. A. 3), enf'g Matter of Republic Steel Corporation and Steel Workers Organizing Committee, 9. N. L. R. B. 219. w Cf. El Paso Electric Company, a corporation and Local Union 585, International Broth- erhood of Electrical Workers; and N. P. Clay, et at., 13 N. L. R. B. 213, wherein we said, "It is settled that an employer may not terminate Irrevocably the employer-employee relationship simply because his employees , engaging in concerted activities for mutual aid and protection , elect to remain away from their work on strike," citing Mackay Radio & Telegraph Company v. N. L. If. B., 304 U. S. 333, rev'g 92 F. (2d) 761 (C. C. A. 9), and enf'g as modified Matter of Mackay Radio & Telegraph Company, a corporation, and Ameri- can Radio Telegraphists ' Association, San Francisco, Local No . 3, 1 N. L. R. B. 201, where the Court stated, "the strikers remained employees for the purpose of the Act and were protected against the unfair labor practices denounced by it." 582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD couraged membership in a labor organization and has thereby inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. B. The allegedly discriminatory discharge of Stevens H. D. Stevens was hired in May 1935 and worked for the respond- ent as a lineman in Jacksonville, Texas, until he quit or was dis- charged on June 2, 1937. He was business manager of the I. B. E. W., which he joined in May 1935, a member of many committees of the I. B. E. W., and active in soliciting new members. Towards the latter part of May 1937, Rand, the respondent's dis- trict manager, informed Stevens that he intended to transfer him to Overton, Texas, to assume Paul Evans' job as service man in that town. Evans, Rand explained, would be brought to Jacksonville to take H. D. Gilliam's job as service man and Gilliam, who was formerly a lineman, would be given Stevens' job in the line crew. His transfer, Stevens was told, would be made at the same salary he was earning in Jacksonville. Stevens protested, claiming that he had never worked as a service man. He was told by Rand that he would be sent to a refrigeration school in Dallas, Texas. The meet- ing ended, according to Stevens' testimony, when he told Rand that he would study the matter. Rand testified that Stevens said "I will try it. I will try anything once." - Stevens was then told that the transfer was to take effect on June 1, 1937. On June 1, 1937, according to Rand, Stevens came to see him and said that he had been offered two other jobs. Rand replied that he would regret the loss of Stevens but would not stand in his way. Stevens did not remember whether he had told Rand he was offered two other jobs. He did not, however, deny that he had so informed him. The following day, Stevens reported for work with the line crew in Jacksonville. When Rand received word that Stevens was work- ing with the line gang, he had Grey, the line foreman, send Stevens to his office. Stevens testified that Rand said to him at that time, "What is this I hear about you not going to Overton?" Stevens retorted, "I am not going." Rand then explained, "I am moving Paul Evans down here now, and I am moving Gilliam out on your job." Stevens protested, "I have got seniority out on the line crew," and Rand answered, "You don't have any seniority out there" and "I will work these men where I please." Rand added that Hall, the local manager in Overton, had especially asked-to have Stevens. When Stevens persisted that he would not go to Overton, Rand said to him "Well, you are through then. You will have to quit." Ste- vens replied that he would not quit and Rand then said, "You are GULF PUBLIC SERVICE COMPANY 583 through." Rand maintained, in his version of the meeting, that Stevens had said, "Well, I don't want the job." Whether Stevens quit or was discharged, we are not convinced that his transfer was discriminatory. The three, persons involved in the transfer were all members of the I. B. E. W. Evans, who was trans- ferred from Overton to Jacksonville, had also started in the line crew in Jacksonville and, according to Rand, had been elevated to his posi- tion as service man in Overton. Stevens claimed that the transfer was not a promotion. When he was asked, "You mean you just don't regard it that way, or it isn't regarded that way?" he replied, "I don't regard it that way, myself." Stevens was not a native of Jacksonville and was living in a furnished apartment. He would not have been greatly inconvenienced by the transfer, which was to be made at the same salary he was earning. Overton is not far distant from Jacksonville and the transfer would not have materially inter- fered with his union activities. Furthermore, the transfer did not come at a crucial point in the development and growth of the I. B. E. W. In view of all the circumstances, we find that Stevens was not discriminated against because of his activity or membership in the I. B. E. W. C. Interference with and domination and support of the Cooperative As noted above, the respondent over a period of years steadfastly refused to bargain collectively with the I. B. E. W. and discharged those employees who struck in protest against its refual to bargain. These unfair labor practices inevitably impressed upon the employees the futility of seeking representation in an outside labor organiza- tion and thereby lent impetus to the creation of an inside union.26. Sometime after July 9, 1938, George Burrill, a meter tester em- ployed in Jacksonville, Texas, conceived the idea of forming an in- side union. On the morning of August 6, 1938, 2 days before the commencement of the hearing in this proceeding, he and Paul Evans, a service man in Jacksonville, began to organize an inside union. Each, individually, asked for and obtained permission from Glen Green, the auditor, to take off the rest of the day. Green was not informed of the reason for their request. Burrill and Evans then 26 Cf. Matter of Texas Mining & Smelting Company and International Union of Mine, Mill & Smelter Workers, Local No. 412, 13 N. L. R. B. 1163, wherein we said : "Success of the respondent 's campaign against the Union entailed one of two results, each destructive of employees' rights ; either that the organizational efforts of the em- ployees be crushed, or, as actually occurred, that such efforts be diverted into channels more acceptable to the respondent . Both consequences were reasonably within the respgnd- ent's contemplation when it resorted to unfair labor practices designed to destroy the Union." 283029-41-vol. 18-38 584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD enlisted the assistance of Floyd Carlton, a salesman for the respond- ent, who agreed to drive them to and from the towns in which the respondent maintained employees. These three.employees left Jacksonville for Troup, Texas, at ap- proximately 11: 30 a. m. Lloyd Lattimore, local manager in Troup, was the first person with whom they conferred on their arrival in that town. They asked him for permission to speak to the employees in Troup about the Cooperative and for the name of a lawyer who could assist them in its formation. Lattimore granted their request to speak to the employees and suggested the name of Ward Chandler, an attorney in Troup. Burrill and Evans.then went to Chandler's office and discussed with him the organization of the Cooperative. They prepared in his office cards which provided that the under- signed designated three named employees as a committee "to repre- sent me for the purposes of collective bargaining with my employer, Gulf Public Service Company, and to represent me in a hearing befora the National Labor Relations Board." The three named employees were T. J. Fields, a service man in Troup, James Salman, employed in Rusk, Texas, and Burrill. These employees were also designated as president, vice president and secretary, and treasurer of the Cooperative on a separate petition which was prepared after Burrill, Evans, and Carlton had left Chandler's office. From Chandler's office, Burrill and Evans returned to see Latti- more and enrolled him as the first member of the Cooperative. Having been granted permission to speak to the other employees in Troup, Burrill and Evans proceeded to solicit them to join the Co- operative. Three more members were secured in Troup. Burrill, Evans, and Carlton then left Troup and drove first to Overton, Texas, and subsequently to Alto and Rusk, Texas. In each of these towns, they proceeded substantially as they had in Troup. First they enrolled the local manager as a member and then solicited the employees under him to join?? In Rusk, A. E. Laney, the local manager, not only joined first but had Ethel Pledger, the cashier, step out to the car in which Burrill and Evans were seated. Pledger was then asked to and did join the Cooperative. Upon their return to Jacksonville, Burrill and Evans enrolled many additional mem- bers for the Cooperative on this and the next day, August 8, 1938. The Cooperative has not asked for nor has it obtained recognition from the respondent. On August 14, 1938, it held its first meeting. 27 This procedure was subject to slight exception . Dorrell, service man in Overton, was asked to join before his local manager had become a member . Burrill and Evans claimed that Mrs. Poore , cashier and wife of the local manager in Alto, joined before her husband, Clyde Poore. However, on the petition designating Fields, Salman , and Burrill as officers of the Cooperative, which employees signed as they joined the Cooperative , Clyde Poore's signature appears before that of his wife's. GULF PUBLIC SERVICE COMPANY 585 At this meeting, it was decided to reject the applications of A. E. Laney, A. A. Hall, Clyde Poore, and Lloyd Lattimore, all local managers. Poore and Laney were present at this meeting. Accord- ing to the minutes of this meeting, their applications were rejected "because of possible ineligibility." Burrill explained that "we understood, at least, that company officials wouldn't be allowed to participate in any fashion in the employees' union" and "the question was raised as to whether under the title ' they [local managers] had, whether they were officials, or weren't officials." It cannot be questioned that the local managers occupied super- visory positions.28 This was recognized by the organizers of the Cooperative when they asked Lattimore, local manager in Troup, for permission to speak to the employees in Troup. Lattimore granted this permission, suggested the name of an attorney to assist in the formation of the Cooperative, and then joined the Cooperative himself. He was the first person to become a member. When the other employees in Troup were asked to and did join the Coopera- tive, they observed Lattimore's name on the petition. With the knowledge that their immediate superior had become a member, these employees could logically infer the propriety of joining them- selves. In each town in which they organized, Burrill, Evans, and Carlton made certain to enroll the local manager as soon as possible and then enlist the other employees in that town. This procedure was followed with only slight, variations. Laney, local manager in Rusk, not only signed first but had Pledger, cashier in Rusk, come out to confer with, the organizers of the Cooperative. After the Cooperative had obtained its membership, the local managers were rejected as members "because of possible ineligibility." Their serv- ices were no longer necessary. It is our opinion that the respondent has, through its local managers, given aid and support to the Coop- erative.-29 We find that the respondent has dominated and interfered with the formation and administration of the Cooperative and has con- tributed support thereto and that it has thereby interfered with, 28 See footnote 12, Supra. 29 In finding that the respondent gave aid and assistance to the formation of the Cooper- ative through the activities of its local managers , we are not unmindful of the fact that J. A. Atkinson , line superintendent In charge of the line crew , Is and has been for years a member of the I. B. E. W. Qualifications for membership in a union are, of course, within the control of the union and not the Board and a union might , if it considers it expedient, admit supervisory employees to membership . However, when a supervisory employee joins a labor organization while it is in the process of formation, and, in fact, precedes the employees who work under him into the union, his membership therein inevitably leaves Its mark upon the employees who are thereafter asked to join . Cf. Matter of Tennessee Cop- per Company and A. F. of L . Federal Union No. 21164, 8 N. L. R. B. 575. 586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD restrained , and coerced its employees in the exercise of rights guar- anteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III1 A and C above, occurring in connection with the operations of the respondent described in Section I above, have a close, intimate, .and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and ob- structing commerce and the free flow of commerce. THE REMEDY As we have found that the power-plant operators, power-plant firemen, power-plant maintenance men, assistant chief engineer, line superintendent, line foreman, line crew, service men, and meter read- ers in the power and distribution departments in Cherokee, Anderson, Smith, and Rusk counties, Texas, constitute a unit appropriate for the purposes of collective bargaining and that the I. B. E. W. has been designated as the exclusive bargaining representative by a majority of the employees within this unit, we shall order the re- spondent upon request to recognize the I. B. E. W. and bargain with it as such exclusive representative. We have also found that the respondent discharged the employees listed in Appendix A, who engaged in the strike, on July 11, 1938, because of their membership and activity in the I. B. E. W. We will, accordingly, - order the respondent to offer to reinstate these em- ployees to their former or substantially equivalent positions. Inasmuch as the respondent discharged the strikers on July 11, 1938, it is impossible to ascertain when the strikers would have abandoned the strike and returned to work in the absence of the re- spondent's action in discharging them. Had the respondent not dis- charged the strikers, their back pay would have commenced from the date when they applied for work. However, by discharging them, the respondent made it useless for the strikers to apply for their jobs. Since the uncertainty is caused by the respondent's illegal act in discharging the strikers because of their union activity, we will indulge in no presumption as to how long the strike might otherwise have lasted.30 Accordingly, in order to restore the status quo as nearly as possible under the circumstances, our order shall provide for back pay for the discharged employees listed in Ap- °The average duration of strikes in 1938 was 23.3 calendar days . United States De- partment of Labor, Bureau of Labor Statistics , Bulletin No . 651, "Strikes in the United States 1880-1936," p. 51. GULF PUBLIC SERVICE COMPANY 587 pendix A from the date of the discharge, July 11, 1939.31 We shall order the respondent to make the discharged employees, listed in Appendix A, whole for any loss of pay they have suffered by reason of their respective discharges by payment to each of them of a sum equal to the amount he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings 32 during said period. Since we have found that the respondent has dominated and inter- fered with the formation and administration of the Gulf Public Service Employees Cooporative and has contributed support to it, we shall order the respondent to refuse to recognize it as the representa- tive of any of its employees for the purpose of collective bargaining. THE PETITION We have determined the appropriate bargaining unit and found that a majority of the respondent's employees within that unit had designated the I. B. E. W. as their representative for the purposes of collective bargaining. Accordingly, we shall dismiss the petition of the I. B. E. W. for certification. 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, Local .790, and Gulf Public Service Employees Cooperative, are labor organiza- tions, within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of, and contributing support to, the Gulf Public Service Employees Cooperative, the respondent has engaged in and is engag- ss Cf. Matter of El Paso Electric Company, a corporation and Local Union 585, Interna- tional Brotherhood of Electrical Workers; and N. P. Clay, et at., 13 N. L. R. B. 213; see also Remington Rand, Inc., v. N. L. R. B., 94 F. (2d) 862 (C. C. A. 2). cert. denied 304 U. S. 576, enfg Matter of Remington Rand, Inc. and Remington Rand Joint Protective Board of the District Council Office Equipment Workers, 2 N. L. R. B. 626; Black Diamond Steamship Corporation v. N. L. R. B.,,94 F. (2d) 875 (C. C. A. 2), cert. denied 304 U. S. 579, enf'g Matter of Black Diamond Steamship Corporation and Marine Engineers' Bene- ficial Association, Local No. 33, 3 N. L. R. B. 84. 32 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 re,pondent, 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 Amer- ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal, State, county, municipal, or other work-relief projects are not considered as earnings, but 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 government or governments which supplied the funds for said work-relief projects. 588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. The power-plant operators, power-plant firemen, power-plant maintenance men, assistant chief engineer, line superintendent, line foreman, line crew, service men, and meter readers employed by the respondent in the power and distribution departments in Cherokee, Anderson, Smith, and Rusk counties, Texas, excluding office, clerical, and supervisory employees not hereinbefore mentioned, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 4. International Brotherhood of Electrical Employees, Local 790 was on July 20, 1937, and at all times thereafter has been the exclusive representative of all employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 5. By refusing and continuing to refuse to bargain collectively with International Brotherhood of Electrical Employees, Local 790, as the exclusive representative of the employees in the above-stated unit, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (5) of the Act. 6. By discriminating in regard to hire and tenure of employment of the employees listed in Appendix A, and thereby discouraging membership in a labor organization, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 7. 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. 8. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 9. The respondent has not discriminated against H. D. Stevens in regard to hire or tenure of employment or terms or conditions of employment, within the meaning of Section 8 (3) of the Act. ' ORDER Upon the basis of the findings of fact and conclusions of law,. and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Gulf Public Service Company, and its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Electrical Workers, Local 790, or any other labor organization of its 1 GULF PUBLIC SERVICE COMPANY 589 employees by discriminating in regard to hire or tenure of employ- ment or any terms or conditions of employment; (b) Dominating or interfering with the administration of Gulf Public Service Employees Cooperative or dominating or interfering with the formation or administration of any other labor organization of its employees or contributing support to Gulf Public Service Employees Cooperative or to any other labor organization of its employees ; (c) Refusing to bargain collectively with International Brother- hood of Electrical Workers, Local 790, as the exclusive representative of the power-plant operators, power-plant firemen, power-plant main- tenance men, assistant chief engineer, line superintendent, line fore- men, line crew, service men, and meter readers in the power and distribution departments in Cherokee, Anderson, Smith, and Rusk counties, Texas, excluding office, clerical, and supervisory employees not hereinbefore mentioned, in respect to rates of pay, wages, hours of employment, and other conditions of employment; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join,' pr assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board. finds will effectuate the policies of the Act: (a) Offer to. the employees listed in Appendix A immediate and full reinstatement to their former or substantially equivalent posi- tions, without prejudice to their seniority and other rights and priv- ileges, dismissing, if necessary, any employees hired by the respondent since July 9, 1938; (b) Make whole the employees named in Appendix A, for any losses of pay they have suffered by reason of their discharge, by payment to each of them of a sum of money equal to that which he would normally have earned as wages from July 11, 1938, to the date of the respondent's offer of 'reinstatement, less his net earnings during that period, deducting, however, from the amount otherwise due to him monies earned by him during that period for work performed upon Federal, State, county, municipal, or other work-relief projects, and pay over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (c) Refuse to recognize Gulf Public Service Employees Coopera- tive as a representative 'of any of its employees for the purpose of 590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of work ; (d) Upon request, bargain collectively with International Brother- hood of Electrical Workers, Local 790 as the exclusive bargaining representative of the employees in the unit found appropriate; (e) Immediately post notices to its employees in conspicuous places throughout its plant and offices stating that the respondent will cease and desist in the manner set forth in 1 (a), (b), (c), and (d), that it will take the affirmative action set forth in 2 (a), (b), (c), and (d) of this Order, that the respondent's employees are free to become or remain members of the International Brotherhood of Electrical Workers,' Local 790, and that the respondent will not discriminate against any employee because of membership or activity in that organization; and maintain such notices for a period of sixty (60) consecutive days from the date of posting; (f) Notify the Regional Director for the Sixteenth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. AND IT IS FURTHER ORDERED that the complaint be, and it is hereby dismissed, to the extent it alleges that the respondent has engaged in unfair labor practices in connection with the discharge of H. D. Stevens. AND IT IS FURTHER ORDERED that the petition for certification of representatives, filed by International Brotherhood of Electrical Workers, Local 790 be, and it hereby is, dismissed. APPENDIX A J. A. Atkinson. B. W. Andrews. R. T. Bellamy. W. H. Crow. L. F. Dunlop. S. F. Fulton. F. Gray. M. Grey. A. Griggs. M. L. Hackett: W. G. McKeown. W. M. Ragsdale. J. J. Richardson.