Alabama Power Co.

In the Matter of ALABAMA POWER COMPANY and INTERNATIONAL BRoTmuuIooD OF ELECTRICAL WORKERS Case No. C-1127.-Decided December 2,'1939 Electric Utility Industry-Interference, Restraint , and Coercion : anti-union statements by supervisors-Company-Dominated Unions: interference with, dom- ination and support of ; Independent Union held successor of two Employees Associations ; first Employees Association formed by Company ; second Employees Association formed with the Company's assistance-Check-off: held assistance to Employees Association-Remedy: company ordered to disestablish second Em- ployees Association , order not to affect accident , health, and hospitalization insurance program; to refrain from recognizing Independent Union ; Company ordered to return to employees dues checked off. Mr. Samuel Lang and Mr. C. Paul Barker, for the Board. Martin, Turner and McWhorter, by Mr. Hobart A. McWhorter and Mr. P. W. Turner, of Birmingham, Ala., for the respondent. Mr. 0. A. Walker, of Birmingham, Ala., and Mr. James Preston, of Washington, D. C., for the I. B. E. W. Miss Carol Agger, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by the International Brotherhood of Electrical Workers, herein called the I. B. E. W., the National Labor Relations Board, herein called the Board, by the Regional Director for the Fifteenth Region (New Orleans, Louisiana), issued its complaint and notice of hearing dated September 12, 1938, against Alabama Power Company, Birmingham, Alabama, herein called the respondent, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. The complaint, as amended, contained certain allegations concerning the nature of the respondent's business and, in respect to unfair labor practices, alleged in substance that on or about July. 30, 1934, the 18 N. L. R. B., No. 78. 652 ALABAMA POWER GOMPAN'Y 653 respondent originated a plan of employee representation, named the Alabama Power Employees' Representation Association, herein called the Representation Association, and from July 30, 1934, up through August 1935, dominated and interfered with the administration of the Representation Association and contributed financial and other support thereto; that in May, June, July, or August, 1935, the re- spondent assisted in the formation of a labor organization known as Alabama Power Company Employees' Association, herein called the Employees' Association and has at all times since dominated and inter- fered with its administration, and has contributed financial and other support thereto; that the respondent by pay-roll check-offs has col- lected dues in excess of $10,000, in behalf of the Employees' Associa- tion; that on or about July 23, 1938, the respondent assisted in the formation of a labor organization called the Independent Union of Alabama Power Employees, Inc., herein called the Independent, and has at all times since that date dominated and interfered with its administration and has contributed financial and other support thereto; and that between July 5, 1935, and September 1, 1938, the respondent has discouraged membership of its employees in the I. B. E. W. in a number of ways specified in the complaint and by other acts and conduct. The complaint, and amendments thereto, and the notice of hearing were duly served upon the respondent and the I. B. E. W. On September 27, 1938, the respondent filed a motion to dismiss the proceedings on the grounds that the complaint failed to set forth facts to show that the Board had jurisdiction to entertain the proceedings; that the facts set forth in the complaint were insufficient to show that the respondent had dominated or interfered with the three labor or- ganizations, or that the respondent had interfered with, restrained, or coerced its employees; that the Act is null and void because it de- prives the respondent of its property without due process of law contrary to the provisions of the Fifth Amendment to the United States Constitution in that the Act exempts from its operation power systems similar to the respondent's which are operated by political bodies; and that the charge upon which the complaint is based is de- ficient in that it does not state the address of the labor organization making the charge, the names of the individuals involved, and the time and place of occurrence.' On September 27, 1937, the respondent filed an answer to the com- plaint as amended, and on November 28, 1938, filed a further answer to an amendment to the complaint which was made during the hear- ing. The respondent in its answers, without waiving its motion to 1 This motion was renewed before the Trial Examiner at the beginning of the hearing and is ruled on below. 654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD dismiss, admitted that it assisted in the formation of the Representa- tion Association and made financial contributions thereto from July 30, 1934, to July 5, 1935, but denied that it dominated or interfered with the Representation Association ; denied that it assisted in the formation of the Employees' Association or dominated or interfered with its administration or contributed support thereto, but stated that some meetings of the Employees' Association may have been held upon the respondent's property without its express approval or disapproval; stated that upon the basis of individual authorizations it deducted $7,115.40 from the salary due its employees and has paid the same to the Employees' Association; denied that it dominated, interfered with, or assisted in the formation or administration, of the Independent; and denied that it had interfered with, restrained, or coerced its em- ployees in the exercise of the rights guaranteed by Section 7 of the Act and alleged that if any supervisory employees have participated in acts resulting in interference, restraint, or coercion of the employees, such participation was beyond the scope of their authority and in violation of instructions. After several postponements, notices of which were served upon the parties, the hearing opened in Birmingham, Alabama, on November 3, 1938, before D. Lacy McBryde, the Trial Examiner duly designated by the Board, and closed on December 7, 1938. The Board and the respondent were represented by counsel and the I. B. E. W. by an International Representative. At the beginning of the hearing the Independent moved to intervene in the proceedings. This motion was denied by the Trial Examiner. 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 be- ginning of the hearing, at the conclusion of the Board's case, and at the end of the hearing, the respondent renewed its previously filed motion to dismiss the proceedings. The Trial Examiner denied the motion on the first occasion and reserved ruling upon the second two occasions. The motion is hereby denied. The Trial Examiner also ruled upon a number of other motions and objections to the admission of evidence during the course of the hearing. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On January 17, 1939, the Trial Examiner issued his Intermediate Report finding that the respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. He recommended that the respondent cease and desist from interfering with, restraining, or coercing its employees in the exercise of their rights to self- organization, to form, join, or assist the I. B. E. W. or any other ALABAMA POWER COMPANY 655 labor organization, 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; that the respondent cease and desist from dominating or interfering with the formation and administration of the Representation Asso- ciation, the Employees' Association, the Independent, or any other labor organization, and from contributing financial or other support thereto; and that the respondent withdraw all recognition from the Independent as representative of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and other conditions of employment and completely disestablish, the Independent as such representative. On January 27, 1939, the respondent filed its exceptions to the Intermediate Report and on March 8, 1939, it filed a brief in support thereof in which it again renewed its motion to dismiss the com- plaint. On March 11, 1939, the I. B. E. W. filed a brief. Pursuant to notice, a hearing for the purpose of oral argument on the excep- tions was held before the Board at Washington, D. C., on September 14, 1939, in which the respondent and the I. B. E. W. participated. The Board has considered the exceptions to the Intermediate Report and, except in so far as they are consistent with the findings, conclusions, and order set forth below, finds them to be without merit Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Alabama Power Company, the respondent, is an Alabama corpo- ration having its principal place of business in Attalla, Alabama. Ninety per cent of its voting stock is owned by The Commonwealth and Southern Corporation, a Delaware corporation. It is engaged chiefly in the business of generating, selling, and distributing elec- trical energy for lighting, power, and other purposes. The respondent as the principal supplier of power in. the State of Alabama At the end of 1937, the respondent was supplying power either directly or indirectly to 672 communities in 64 of the 67 counties of the State of Alabama, including the cities of Mobile, Birmingham, Montgomery, Gadsden, and Anniston; there being a total of over 226,000 customers whose power requirements were being met by the 656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent.2 The respondent 'is the sole supplier of electrical energy to well over half the area of the State of Alabama, some portions being served by cooperatives, municipal systems, and about eight other private utilities. Of these private utilities, the Birmingham Electric Company, which serves the City of Birmingham and vicin- ity, generated no power at all during the year 1937, and obtained its total supply from the respondent which is its ordinary practice. The respondent also supplies power in substantial amounts to four other private utilities which operate in the State of Alabama.8 The cooperatives and municipal systems, which serve a compara- tively small portion of the State, are supplied with electrical energy either by the respondent, by the Tennessee Valley Authority or by their own plants. The Tennessee Valley Authority supplies power to about 14 municipalities and to a few small towns. The record does not disclose how many of the municipal systems and coopera- tives purchase power from the respondent. In addition to this business the respondent buys and distributes a small amount of gas to consumers in the vicinity of Phenix City, Alabama, operates a local bus system serving the City of Hunts- ville, Alabama, and vicinity, and a street-railway system serving the City of Tuscaloosa, Alabama, and vicinity. The respondent's transmission and receipt of power across State lines The respondent owns and operates six hydro-electric plants and seven steam plants in the State of Alabama at which all the respond- ent's electricity is generated. The respondent also owns and operates substations and transmission lines in the State of Alabama for the distribution of the electricity generated at the various plants. A number of these transmission and distribution lines are connected at the borders of the State of Alabama with the transmission and distribution lines of the Georgia Power Company, the Gulf Power Company, the Southern Tennessee Power Company, and the Missis- sippi Power Company.4 The only break in these transmission lines at the State border is in ownership; the lines continue unbroken 2 In the year 1937, the respondent sold 111,405 ,455 kilowatt-hours for residential and domestic use; 20,440,284 kilowatt-hours for rural use; 1,031 ,508,588 kilowatt-hours for commercial and industrial use; and 7,319,255 kilowatt-hours for street and highway lighting. 8 Three of these companies , the Baldwin County Power Company, Tallassee Mills Utilities Company and the Tuskegee Light and Power Company, generated no current by their own facilities during 1937 , and purchased from the respondent respectively 639,000, 3,525,797, and 4,016,400 kilowatt-hours. 4 The Commonwealth and Southern Corporation owns all the common stock of these companies . These companies are in turn interconnected with other companies with the result that the respondent is frequently a part of an interconnected system extending as far as Ohio. ALABAMA POWER COMPANY 657 in a physical sense. The respondent, in selling to and exchanging power with these companies, delivers power to and receives power from them which is metered at the Alabama border.5 During the year 1937, the respondent delivered approximately 20 per cent of the total amount of energy produced by it to the above-named com- panies for use in States other than the State of Alabama. In its annual report to the Federal Power Commission for the year ended December 31, 1937, the respondent summarized its sale and inter- change of power with other utility companies as follows : Name of company Kilowatt-hours, total deliveries, and receipts I Received Delivered Mississippi Power Company__ __________________________________________ 71, 440 147, 065, 487 Gulf Power Company--------------------------------------------------- ---------------- 44, 717,122 Georgia Power Company ------------------------------------------------ 79,571,158 340, 795, 220 Tennessee Electric Power Company 8______________.___________________- 2,332,000 98, 977,907 I These figures include both sales and exchanges . The respondent's report breaks them down into the two elements, sales and exchanges of power, as well as reporting the total deliveries and receipts. 2 99 per cent of the common stock of the Tennessee Electric Power Company is owned by The Common- wealth and Southern Corporation. It is noted that the respondent in its answer refers to deliveries to the Southern Tennessee Power Company, but does not report any deliveries to this Company in its Annual Report. However, in the registration statement filed with the Securities and Exchange Commission, The Commonwealth and Southern Corporation explains that the Southern Tennessee Power Company, a wholly owned subsidiary of The Commonwealth and Southern Corporation , owns the transmission line over which is transmitted electrical energy purchased by the Tennessee Electric Power Company from the respondent. It therefore , appears that deliveries to the Southern Tennessee Power Company were for the use of the Tennessee Electric Power Company and are reported in the above table as deliveries to the latter. The annual reports for the same year to the Federal Power Com- mission of these four companies show that a substantial portion of the total power used by them during the year 1937 was received from the respondent."' The respondent urges in its brief that this delivery of power to other utility companies at the State line is incidental to its main business and that in all but two instances was a sale of surplus power upon the basis of "when, as and if available" and that a cessation of power supply from the respondent would not affect the free flow of commerce in the States served by the four above companies since they have other sources of power within their respective States suf- ficient to supply their demands. While it may be that the respondent views such deliveries as "incidental" deliveries of surplus power, it 5 The respondent owns no transmission lines outside the State of Alabama. e The report shows : Company Power gener- ated kw-h. Power purchased and interchanged (in gross) kw-h. Gulf Power Company___________ 48, 604 52,372,872 (44,717,122 from the respondent). Mississippi Power Company____ 23, 990, 511 151,654,287 (147,065,487 from the respondent). Georgia Power Company________ 1, 502, 636, 635 475,182,440 (340,795,220 from the respondent). Tennessee Electric Power Corn- pany. 927, 935, 507 226,689,680 (98,877,907 from the respondent). 658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is noted that approximately 20 per cent of the total power generated by the respondent in 1937 was delivered to the companies providing services in other States. It further appears from the record that these deliveries are a continuing characteristic of the respondent's business.7 Thus the respondent has delivered and received a substan- tial amount of energy, which moves across State lines, for a number of years, and the record does not disclose that this practice has ceased. It is immaterial that the respondent is not legally bound to make all these deliveries in the absence of a surplus. The respondent, by its contention that the free flow of commerce would not be affected by a cessation of its operations because the four companies have other sources of power available, may intend to urge either or both of two contentions: (1) that the sale and inter- change of power at the border does not result in a movement across State lines within the meaning of "commerce" as it is defined in the Act since no material thing moves; or (2) that such cessation would not hamper the interstate activities of the customers of the four companies since their needs could be met by the companies in other ways. We think it clear that the delivery of power at the Alabama border into the connecting lines of the four utility companies does result in the movement of power across State lines and that this is commerce within the meaning of the Act, even though the precise nature of the movement cannot be fully explained.8 The second r The respondent's report to the Federal Power Commission for July 1938 , entitled "Report of Move- mentof Electrical Energy Across State Lines ," discloses receipts and deliveries as follows: Name of company in adjoining State Mississippi Power Cc--- ------------------------------------------ Gulf Power Cc--------------------------------------------------- Georgia Power Co------------------------------------------------- Tennessee Electric Power Cc-------------------------------------- Grand total ------------------------------------------------- Kilowatt-hours Received 14,175,438 3,804,930 29, 616, 486 5,184, 930 5, 780 ---------------- 6,299,228 3,200 Delivered 6,308,208 52, 781, 784 The respondent summarized its deliveries and receipts of power for the years 1934 , 1935, and 1936 as follows: 1936 1935 1934 Georgia Power Company--- Tenn. Elec. Power Com- pany--------------------- Miss. Power Company----- Gulf Power Company------ Delivered kw-h. Received kw-h. Delivered kw-h. Received kw-h. Delivered kw-h. Received kw-h. 379, 027,294 81, 673, 568 380,173, 760 58, 419, 032 851,777,428 76, 278, 448 46, 752, 602 59,400 8,42 6, 400 50,200 14,183,200 632,400 135,149, 714 6,228 110, 251, 273 8,000 92, 785,203 97, 772 37, 218, 947 29,888, 448 ----------- 27, 819,689 E. W. Robinson, the respondent's vice president in charge of operations , testified that all the inter- connected systems feed power into what is in effect one system when they are all generating power and that it is impossible to ascertain the source of a particular unit of energy. As a result of the connection of the respondent's lines with those of the other companies, the respondent 's facilities would automatically supply more power to the other companies if some break -down should occur in their generating facilities. ALABAMA POWER COMPANY 659 possible contention is also without merit. It appears from the record that the four utility companies could not completely and immediately meet the demands of their customers. The Georgia Power Company could take care of its "essential load" only by dropping one of its large secondary customers. If the cessation of the respondent's opera- tions took place at a time when the load levels were high and the weather dry, the companies would require a number of hours to "bring in" their reserve steam plants. In any event the diversion of interstate commerce from the respondent to other suppliers would itself suffice to establish the relation of the respondent's operations to the flow of interstate commerce. . The respondent as supplier of power to instrumentalities of interstate commerce The respondent supplies large amounts of electrical energy at a number of different points to the principal interstate railroads run- ning in and out of Alabama carrying mail, passengers, and freight in and out of the State .9 These railroads use electric power for a number of purposes including the lighting of offices, stations, tele- graphic offices, and interlocking towers, and the operation of signals which govern the movement of trains, the machinery in the shops, locomotive turn tables, and to some extent for the operation of grain elevators and coal conveyors. The present normal operations of the railroads are dependent upon electric power. Certain make-shifts "o could be employed to continue their operations should the power be cut off, although their employment would result in slowing the rail- roads' activities. The respondent also supplies large quantities of electricity to the Southern Bell Telephone and Telegraph Company at a number of points in the latter's system."' This Company supplies telephone service to the whole State of Alabama except the extreme south- eastern portion, and its system is connected with systems serving other States and foreign countries and with ships at sea by means of radio telephone. It also supplies teletypewriter services to the Asso- Southern Railway Company ; Seaboard Airline Railway Company ; Central of Georgia Railway Company ; Atlanta, Birmingham and Coast Railway Company ; L. & N. Railway Company ; Tennessee, Alabama, and Georgia Railway Company ; Alabama Great Southern Railway Company ; St. Louis and San Francisco Railway Company ; Mobile and Ohio Railroad Company ; Gulf, Mobile and Northern Railway Company ; Illinois Central Rail- road ; Atlantic Coast Line Railway Company ; and Western Railway of Alabama. 10 For example, the orders for train movements would have to be sent over commercial lines instead of the railroads' own telephone systems. The effect of the cessation of the power supply upon commercial telephone system is discussed below. 11 The Southern Bell Telephone and Telegraph Company buys power from municipal systems in the towns of Sheffield, Tuscumbia, Florence, Athens, Guntersville, Dothan, and Sylacauga. 660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ciated Press, the United Press, sundry newspapers, radio stations,12 and stockbrokers 13 and furnishes facilities to carry radio programs originating at New York City or Chicago from the central network stations to stations associated with the network.14 The primary use to which the Southern Bell Telephone and Telegraph Company puts electrical energy is the charging of storage batteries which supply the power to the telephone system. It also uses power for lights, for running various calculating machines, ringing machines, and for operating teletypewriter machines. If the electric power over the State were shut off, the Southern Bell Telephone and Telegraph Com- pany could operate its telephone service until the storage batteries ran down, a period of from 24 to 48 hours, and after that would have to obtain emergency equipment at those exchanges where it had no emergency generating systems. This would require considerable time and expense. The respondent furnishes electric power to the three principal air- ports in Alabama, which are located at Birmingham,15 Mobile and Montgomery, and for the United States Army Airport at Montgomery. These airports are used as stopping places for several airlines on inter- state journeys where freight, mail, and passengers are picked up and discharged. At the airports, electricity is used to operate radio beams to allow instrument flying, boundary lights, beacons, and flood lights, all of which are essential for the safety of planes landing at night. The respondent also supplies power to bus and trucking companies, United States Post Offices, and other United States government of- fices and facilities including the U. S. Lighthouse Department and the Inland Waterways Corporation, the Western Union Company, Postal Telegraph Company, numerous newspapers, Railway Express Agency, Federal Barge Lines, a number of radio stations, railroads other than those above mentioned, warehouses at the State Docks at Mobile, the cold-storage plant operated by the State Docks Com- mission, the State and Municipal Docks at Mobile, and to the coaling station for ships at Mobile. 12 Radio stations use the teletypewriter to communicate with central network stations outside the State of Alabama. 78 Stockbrokers use the teletypewriters to take and transmit quotations and orders, ordinarily to and from points outside the State of Alabama. u One or more radio stations located in each of the cities of Birmingham, Montgomery and Mobile, Alabama, have connections with and broadcast the programs of national radio networks. 15 The Birmingham Electric Company supplies power to the Birmingham Airport. We have found above that the Birmingham Electric Company ordinarily procures all the electricity distributed by it from the respondent. ALABAMA POWER COMPANY 661 The respondent as supplier of power to industries engaged in interstate commerce Answers to questionnaires submitted to industrial concerns located in Alabama, and introduced pursuant to a stipulation between the Board and the respondent that such answers should be considered as though given by duly qualified witnesses,"' indicate that at least 49 industrial concerns, which do a substantial interstate business, are wholly or almost wholly dependent upon power supplied by the respondent for their normal operation.17 - The respondent contends that the contribution of these concerns to interstate commerce is "relatively small and lacks those elements of importance to commerce which would make applicable the principles laid down in the Consolidated Edison Case." 18 Even if this were a material consideration'19 there are, as we have pointed out, a large number of industrial concerns dependent upon the respondent for power to carry on their normal operations. Some of these concerns make a very large contribution to interstate commerce. We consider the respondent's contention to be without merit. From the foregoing it is evident, and we find, that the respondent is the principal supplier of electrical energy in the State of Alabama; that it transmits and receives substantial quantities of power across State lines; that it supplies large amounts of power to instrumentali- ties of interstate commerce and to industries engaged in interstate commerce; that the normal operation of these instrumentalities and industries is dependent upon power supplied by it ; and that a labor dispute between the respondent and its employees which resulted in the interruption of the respondent's operations would affect the flow of large amounts of electrical energy across State lines, and would seriously hamper, and in some cases paralyze, the operations of railroads, telephones, and other instrumentalities of interstate commerce and the operations of various industries engaged in inter- state commerce. '*The respondent did not waive its objection to the materiality of such testimony by entering into the stipulation. 17 Included among these plants are : Goodyear Tire and Rubber Co. of Alabama ; Pepperall Manufacturing Co.; Nestles Milk Products , Inc. ; Bemis Brothers Bag Co.; E. I. du Pont de Nemours & Co.; and many textile mills and coal mines. Other concerns, not so included, such as the Republic Steel Corporation and the Sloss-Sheffield Steel & Iron Company ordinarily rely upon the respondent 's power but have substitute or supplementary sources of power available to them. 18 Consolidated Edison Co., et al. v. National Labor Relations Board et al., 305 U. S. 197. 39 "... we can perceive no basis for inferring any intention of Congress to make the operation of the Act depend on any particular volume of commerce affected more than that to which courts would apply the maxim de minimus ." National Labor Relations Board v. Fainblatt et al., 306 U. S. 601. 662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED The International Brotherhood of Electrical Workers is a labor organization affiliated with the American Federation of Labor, ad- mitting to membership all employees in the respondent's production and distribution departments and power plants except office em- ployees, general foremen, supervisory employees ranking higher than general foremen, and superintendents of hydro-electric and steam plants. Alabama Power Company Employees' Representation Association was an unaffiliated labor organization admitting to membership all employees of the respondent who had been employed by the re- spondent for at least sixty days, except employees identified with the management of the respondent, such as executive officers, gen- eral office department heads and assistants, division managers, man- agers of districts serving more than 1000 customers, division super- intendents and assistants, district superintendents, division sales supervisors, division auditors, district auditors, chief load dispatcher, plant superintendents and assistants, shop superintendents, and gen- eral foremen. Alabama Power Employees' Association is an unaffiliated labor organization with a membership eligibility rule identical with that of the Representation Association, set forth above. Independent Union of Alabama Power Employees, Inc., is an in- corporated, unaffiliated labor organization admitting to membership all the respondent's regular employees except those identified with the management, such as executive officers, general office department heads, division managers, managers of districts serving more than 1000 customers, division superintendents, shop superintendents, and general foremen, and those employees holding equivalent or higher titles or positions with authority to hire and discharge. III. THE UNFAIR LABOR PRACTICES In our consideration of the unfair labor practices we are met at the outset by the respondent's contention that the Board and the I. B. E. W. are estopped from pressing the charges here involved because two elections have been held at the instance of the I. B. E. W. with knowledge of the respondent's activities with respect to the Representation Association and the Employees' Association. The' first of these elections was held in 1934 under the auspices of the National Labor Board 20 between the I. B. E. W. and the Represen- 20 Set up in connection with Section 7 (a) of the National Industrial Recovery Act, 48 Stat. 195. See Public Resolution No. 44, 73rd Cong., and Executive Order of June 29, 1934, pursuant thereto. ALABAMA POWER COMPANY 663 tation Association. Since this election was held pursuant to a law other than that under which these charges are brought, the I. B. E. W. is not estopped from pressing charges even if it then had knowledge of the respondent's activities with respect to the Representation Association. This Board had nothing to do with the 1934 election and cannot be bound by the acts of another agency which was acting pursuant to the terms of another law. The second election was held under the auspices of this Board pursuant to the consent of the I. B. E. W. and the respondent in November and December 1937. The Employees' Association was not on the ballot and took no formal part in the election. The I. B. E. W. was defeated by about 84 votes in this election. While in the inter- ests of the effective administration of the Act, the Board may, in its discretion, refuse to issue an order when its agents have previously represented to an employer that if he consents to an election pending charges will not be pressed'21 the respondent here advances no evi- dence that any such representations were made. Even where no such representations are made, the Board has refused to consider events occurring prior to a consent election where the union later alleged to be dominated has appeared on the ballot and where the employer, subsequent to the time it consented to the election, has not engaged in unfair labor practices which show a continuity with conduct and attitude prior to such consent. 22 Here the Employees' Association did not appear on the ballot; moreover, as we find below, the respondent continued its unfair labor practices after the election of November 1937 and these practices were a continuation of the unfair labor practices indulged in prior to that time. The Board will therefore, in its discretion, consider evidence relating to unfair labor practices engaged in prior to the election of November 1937. We now consider such evidence. A. Alabama Power Company Employees' Representation Association 1. The organization of the Representation Association Prior to spring 1934, there was no labor organization among the respondent's employees. In about March of that year the I. B. E. W. initiated an organizing campaign, carried on largely by a group of employees who had become interested in the I. B. E. W. The re- spondent's attitude toward labor organization was by that time already known to at least one of the individuals, J. C. McIntosh, who 21 See Matter of Oodchaum Sugars, Inc. and Sugar Mill Workers' Union, Locals No. 21W and No. 2188, 12 N. L. R. B. 568; Matter of Shenandoah-Dives Mining Company and International Union of Mine, Mill & Smelter Workers, Local No. 26, 11 N. L. It. B. 885. 22 See Matter of Hope Webbing Company and Testile Workers Organizing Committee of the C. I. 0., Local No. 14, 14 N. L. R. B. 55. 283029-41-vol. 18-43 664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was active in starting the I. B. E. W. organization. Around the first of the year Superintendent Cox of Jordan Dam,23 in handing to McIntosh a letter sent to McIntosh bearing the return address of William Green of the American Federation of Labor, said, "McIn- tosh, you realize that the company is opposed to organized labor." McIntosh replied that he was aware of the respondent's attitude and Cox warned him, "Now, I don't know what is in that letter, but if I am called on for any information as regards organization at this plant, I will have to tell them about this letter." 24 Late in March or, early April 1934, Superintendent of Production Neeson told McIntosh that the I. B. E. W. could go ahead and com- plete its organization if it liked but that if it did so there would not be enough men left at Jordan Dam to hold a meeting.25 A few months later, in June 1934, McIntosh was transferred from his position as clerk at Jordan Dam to a job painting houses at the Gorgas steam plant. Upon his arrival at Gorgas, McIntosh was informed by Superintendent Lineberry that he knew McIntosh was an I. B. E. W. member, that there was no need for labor organization at Gorgas, that the men there would not be interested in the I. B. E. W., and that the I. B. E. W. would not be successful on the respondent's properties. Lineberry then introduced McIntosh to Foreman Packer, under whom McIntosh was to work, and warned Packer that McIntosh was "full of I. B. E. W. ideas." Be At about the same time Superintendent Cox asked R. R. Wade to go to work early one day. When Wade arrived, Cox talked to him about the I. B. E. W. and asked him not to join. 23 The superintendents of the respondent 's various plants are in charge of the plants and personnel generally . They are under the supervision of Production Superintendent Neeson and are themselves superior to the plant foremen, who are sometimes referred to as "assistant superintendents ." These superintendents , together with Division Superin- tendents, are clearly important supervisory officials . Neeson is directly subordinate to Vice-President Robinson , in charge of operations. 24 Cox did not testify . The respondent objected to the admission of this testimony because it was not covered by the complaint and because the incident occurred prior to the effective date of the Act. As to the first objection , it is valid only if the respondent was not given an opportunity to rebut the testimony . In this case , however, at the close of the Board's case , the respondent made a motion that the hearing be adjourned for several days, in order that the respondent might have time to prepare its defense, and the motion was granted . The respondent had an opportunity to meet the evidence and was given a fair hearing . The objection as to the occurrence of the incident prior to the effective date of the Act is without merit since such matters are necessary to an understanding of the background and circumstances surrounding the formation of a labor organization which continued after the effective date of the Act and which we find below was the predecessor of another organization which existed for a considerable time after the effective date of the Act. See N. L. If. B. v. Pennsylvania Greyhound Lines, Inc., at at., 303 U. S. 261. During the hearing objections were made to other testimony upon the same grounds. We do not feel it necessary to point out and deal with each of these objections for in all cases where such testimony is relied upon , the above observations apply. a' Neeson testified that he did not make such a statement . However, in view of Cox's and other supervisory officials' statements of the respondent's attitude toward labor organizations , we are satisfied that McIntosh 's testimony, summarized above, is sub- stantially correct. 01 Lineberry did not testify. ALABAMA POWPIR COMPANY 665 During the spring of 1934 James Barry, the respondent's vice presi- dent and general manager, was advised by the various division man- agers 21 that I. B. E. W. organizational activity was going on in certain parts of the respondent's system. On about June 1, 1934, Barry under- took to draft a plan of employee representation with the aid of Vice- President Robinson, Superintendent Neeson and McWhorter, the re- spondent's general legal advisor. Barry testified that he undertook the preparation of the plan because he had been advised by a number of supervisors that the employees desired a plan of representation for the purposes of collective bargaining,28 and that the National Indus- trial Recovery Act had stimulated the employees' interest in collective bargaining. The plan, as drawn by Barry, set up the Representation Association. The organizational scheme of the Representation Asso- ciation may be generally described as an employees' representation plan. Under the, plan local departmental councils, such as the Account- ing Department Council for the Northern Division, were to be elected. One councilman was to be elected to these department councils for each 20 members in that department. The councilmen elected as chairmen of each department council made up the Division Councils." The chairmen of the various division councils made up the General Council. The plan provided that each councilman be an employee of 1 year's standing and that he forfeited his office upon his transfer or upon his leaving the respondent's employ. The Departmental Councils were empowered to negotiate with the respondent concerning matters re- lating to employees of their respective departments; the Division Councils were similarly authorized with respect to the employees in the several divisions; and the General Council took care of matters of interest beyond the scope of the Departmental and Division Councils. 27 The respondent , for purposes of administration , has divided its operations into six geographical divisions , which are under the direction of the division managers for certain purposes . It also divides its system into functional departments without reference to geographical location , such as the production department, the distribution department, and the like. Neeson , as already noted, is superintendent of the production department. In about May 1934 Foreman 0. L. Heath told Division Manager Hunter that he had been asked to join the I. B. E. W., that he was not particularly interested but that he thought the employees needed some sort of organization , and asked Hunter if the respond- ent intended to make any response to the employees ' demand for organization . Hunter replied that he would take it up with "Birmingham" (the respondent's general offices) and let Heath know. Hunter never advised Heath as to what he had done. At about the same time, Herbert Ross, an employee, was given some I. B. E. W. literature. by one Williams and a few days later Superintendents Neeson and Dawkins approached Ross and inquired whether Williams had seen him and what Williams had had to say. 19 The Division Councils consisted of the Northern Division , the Eastern Division, Western Division, Southern Division , Southeast Division , and Mobile Division which are geographical divisions of the respondent 's system. The local Departmental Councils under these divisions are generally the Accounting, Distribution , Local Operations and Service, Sales, and Transmission departmental councils . In addition to these divisions the plan sets up the General Office Division with six Departmental Councils under it, and the Production Division Council. Under the Production Division Council are seven depart- mental councils , each representing one or more hydroelectric or steam-generating plant. 666 DECISIONS OF NATIONAL LABOR RELAtrIONS BOARD By the terms of the Barry plan, the reasonable and necessary ex- penses of the Representation Association were to be paid by the respondent and no dues or assessments were to be levied until a ma- jority of the employees had so voted at a special election. The plan made no provision for regular general membership meetings, although such meetings could be called locally by the Departmental Councils, divisionally by the Division Councils, and generally by the General Council. In addition, divisional meetings or general membership (by divisions) meetings could be called by membership petitions bearing the signatures of 20 per cent of all members in the Division and in the Representation Association, respectively. The plan also makes provision for the arbitration of disputes with the consent of the General Council and the management. The plan was to take effect upon the vote of a majority of the eligible employees. About July 30, 1934, Barry had packages of mimeographed copies of the plan, together with a letter from himself to the employees, 30 sent in bundles to the various divisions and district offices to be distributed to the employees. The plan was presented to the employees by the various superintendents and supervisors. At the Gorgas steam plant, Superintendent Lineberry presented the plan to the employees and informed them that he did not think the men needed "any form of damn organization." He explained that he had attended a superin- tendents' meeting where Barry had discussed the plan, and had told Barry that if the respondent would restore the Christmas bonus and give the employees a 10-per cent wage increase, he, Lineberry, thought the "agitation" among the employees would stop. He further stated that Barry had said that the respondent would have to give the em- ployees some form of organization. On August 9, 1934, an election was held in which the employees were to indicate whether they wanted to be represented as proposed by the Barry plan. This took place on the respondent's property during working hours. The majority of all the employees voted to accept the Barry plan. At the Magazine plant and in the Production Depart- ment $1 generally, however, the vote resulted in the defeat of the plan. Superintendent Ames of the Magazine plant then suggested to U. L. Gibson, an employee, that the plan should be given a trial to see whether the men could not obtain the results they desired through the 8° The letter advised the employees that an election would be held on August 9, 1934, on two propositions : (a) The question of whether the employees desire to organize for the purpose of having representation for collective bargaining. (b) The adoption of the tentative plan transmitted herewith as a basis for initial operation, in the event organization is desired by a majority of the employees. The letter also stated that prior to August 9, 1934, the employees in each department should select three tellers to conduct the election. 31 The Production Department operates the power-generating plants and some of the substations. ALABAMA POWER COM'PAN'Y 667 plan and that Gibson present the matter to the other employees of the plant in that way. The plan was then resubmitted to the men and on the second vote they voted in favor of the plan. There was no re- submission of the plan to the Production Department generally. Shortly after the election, Foreman Pledger of the Gorgas plant informed the employees that Superintendent Lineberry wanted to see them in front of the office. When the men had assembled, Lineberry announced the results of the election and said that the result was not as favorable as he thought it should be; that he thought that Superin- tendent Neeson did not deserve the slap he had received in the vote; and that if the employees could not see the matter the way the re- spondent saw it, he would work with them for 6 months or perhaps a year or two but if they could not come around to the respondent's view they could seek work elsewhere. 3- Thereafter most of the men present at the meeting joined the Representation Association. Membership in the Representation Association was evidenced by the employees' signatures to a document stating that those signing chose to become members. In at least two plants the superintendent took the document to employees who had not signed and inquired if they wished to join.33 One of these superintendents, Dawkins, told an employee that it would look bad for his plant if the men did not join. One employee, Heath, who was at that time a foreman in the Distribution Department, did not join the Representation Association. He was called into Superintendent Hulbert's office and was questioned by Hulbert about his attitude toward the Representation Association. Heath said that he did not care to join. According to Heath, Hulbert then spoke of the I. B. E. W. and said, "We didn't need a bunch of northerners to come down here and tell us southern people how to run our business, and that we didn't need that organization, and asked me which side I was on, the respondent's side" or the side of the I. B. E. W.; and warned Heath that if he did not drop out of the I. B. E. W. and join the Representation Association he would jeopardize his job with the respondent .34 Superintendent Hollis of Mitchell Dam also continued to make the respondent's attitude toward the I. B. E. W. clear to the employees during the period when the Representation Association was being or- ganized. On one occasion, when Hollis was away, McRae and seven other employees at Mitchell Dam joined the I. B. E. W. On Hollis' 82 Gurley Hill testified that he knew of four men who had voted against the plan. Of these, three are still working for the respondent. There is no evidence that the one no longer working was discharged because of his vote on the plan. Two of the four became members of the Representation Association. While it appears that the threat to discharge employees who did not accept the respondent's views on the plan was not carried out, the employees did not know at the time that the threat was made that it would not be. 83 Upon objection being made to this procedure at one plant by one of the tellers, the document was destroyed and another one placed on the desk at the plant for the employees to sign. B4 Hulbert did not testify. 668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD return, he was told by the plant foreman that as soon as he had left 8 or 10 men had joined the I. B. E. W. Hollis called these men into-his office one by one. According to McRae, Hollis told him at his inter- view that the men had made a "terrible mistake"; that they would not have joined the I. B. E. W. if Hollis had been there; and that the respondent was like a sturdy boat which had carried them through the depression and the men had jumped off into a frail craft, the I. B. E. W., and it would probably sink with them.35 Departmental councilmen were elected in August 1934. The chair- men of the departmental councils which made up the Division Councils and the chairmen of the Division Councils whoj made up the General Council were elected shortly thereafter and the organization of the Representation Association was complete. While it is clear that the foregoing events, and other events recited below, taking place prior to July 5, 1935, did not themselves constitute violations of the Act, they reveal the respondent's course of conduct over a period of years, the effects of which continued well beyond the effective date of the Act. As a result, such events supply the necessary background against which subsequent events may be more accurately evaluated. 2. The Representation Association from September 1934 to August 20, 1935, and the organization of the Employees' Association The first Production Division Council meeting was held in the re- spondent's general offices in Birmingham on September 21, 1934. One of the councilmen who had arrived early met Superintendent of Pro- duction Neeson, who told him that the respondent would not recognize the I. B. E. W. as a bargaining agency but would recognize the Repre- sentation Association.36 Oz Hollis' version of the conversation was that he had said that he was greatly surprised that any employee who worked for him had thought he had to wait until he got out of the plant to join any organization and that was what he had informed the men ; and that he had spoken of the respondent as a sturdy boat carrying the men through the depression but he had not said anything about the men jumping off Into a frail craft. We do not see why Hollis found it necessary to discuss the respondent's treatment of the employees during the depression if he did : not mean to imply that the men had com- mitted a disloyal act in joining the I. B. E. W. One, Parrish, who was apparently of the same group, testified that Hollis had told him he was making a mistake in joining the I. B. E. W. and that he, Hollis , would not do so if he were Parrish . We find that the statement of the incident set forth above is substantially correct. 30 Neeson, although he testified , did not deny making this statement . Neeson's attitude toward the I. B. E. W. is illustrated by the following incident . Sometime prior to July 5, 1935, Neeson had a conversation with Powell , an employee, concerning the I . B. E. W. According to Powell , Neeson inquired whether Powell was one of the group of men who had sent in I. B . E. W. applications. Powell said he was . Neeson then told Powell that the respondent had Powell 's interest at heart and that he thought Powell was making a , mistake and was building a fence between himself and the respondent . Neeson advised him that if he had not already paid dues to the I. B. E. W. not to do so. Neeson testified that while he had probably talked to Powell about the advantages and disadvantages of the I. B. E. W. he had never questioned Powell 's right to join it. Neeson denied that he had asked Powell whether he had sent in an I. B. E. W. application ALABAMA POW'FJR OOM'PANY 669 Starting on September 29, 1934, the National Labor Board, at the request of the I. B. E. W., held an election among the employees in the various electrical departments to determine whether the employees desired the Representation Association or the I. B. E. W. to represent them for purposes of collective bargaining. This election lasted for a number of days. In connection with and prior to this election, the respondent paid the expenses of Representation Association council- men who went to various plants and urged the employees to.give the plan a chance to operate for 90 days and see what it could do for them. The Chairman of the General Council also travelled about the system electioneering at the respondent's expense. Just prior to the election Superintendent Lineberry suggested to G. W. Kindley, an employee, that he use his influence to get the men to "vote right" and said that some of the men were going off at a tangent. Lineberry also stated that if the men chose the I. B. E. W., it would not be a representative of their own choosing, that representation would be out of the em- ployees' hands. The Representation Association won the election. Also in September of 1934, Herbert Ross, Jr., asked Superintendent Dawkins for the use of the clubhouse at Martin Dam for an I. B. E. W. meeting. The clubhouse is located upon the respondent's property and is available to the employees for various social uses. Dawkins refused to allow the I. B. E. W. to use the clubhouse. He testified at the hearing that he did not allow it to be used since the respondent's employees from other dams were to attend; that he viewed these other employees as "outsiders" and the clubhouse was for the use of Martin Dam employees only. Dawkins also testified that either in 1934 or 1935 he himself had held a Rotary Club meeting at the clubhouse which was attended by some persons who were not employees of the re- spondent at all. We are satisfied that the true reason for Dawkins' refusal of the clubhouse to the I. B. E. W. was not that employees from other dams were to attend the meeting but that Dawkins desired to place an obstacle in the way of I. B. E. W. organizational efforts. At that time and up to July 5, 1935, the Representation Association held meetings in the first-aid room at Martin Dam. Thereafter, the Representation Association used the clubhouse for its meetings. All meetings of the various Representation Association Councils were held during working hours in the plants and the respondent met all the but admitted that he had probably told Powell that he was making a mistake, that the respondent had Powell's interest at heart. Neeson also denied that he had advised Powell not to pay I. B. E. W. dues but stated that he may have asked Powell what dues he was paying. While the two versions vary in their details, it is clear that Neeson at least advised Powell that he was making a mistake in joining the I. B. E. W. since the respondent had Powell 's interest at heart, and we so find. Neeson's attitude toward the I. B. E. W. is further illustrated by his statement to McIntosh in May 1935 , that McIntosh could not expect a better job with the respondent so long as he was an I. B. E. W. member. 670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD expenses of the elections and other business of the Representation As- sociation incurred prior to July 5, 1935. In the latter part of October 1934 the respondent entered into nego- tiations with the Representation Association with respect to a contract governing wages, hours, and working conditions. A separate agree- ment governing the production department was also negotiated. The record is not entirely clear as to how the negotiations were carried on but it appears that the Production Division Council ultimately ac- cepted a proposal made by Superintendent Neeson. In addition to the negotiation of the wage agreement the Repre- sentation Association carried on individual grievance work. Ross was chairman of the Production Division Council from August 1934 until April 1935 and was active in the grievance work. He was also a member of the I. B. E. W. until shortly after the I. B. E. W. lost the election in September and October 1934. On one occasion in November or December 1934, Ross' superior, Dawkins, returned from a meeting of superintendents and told Ross that the superintendents in the production department were "cussing out" Ross because of these activities. Dawkins testified, and we find, that he told Ross that the superintendents at the meeting had accused Ross of going around and "drumming up" grievances; that Dawkins thought it would be more satisfactory if Ross waited until grievances came to him instead of going around and asking the men if they had any grievances; that the superintendents felt that Ross was not handling grievances in the manner provided by the plan; and that for Ross' own good it would be well to handle grievances as the Plan provided. The record discloses nothing material concerning the activities of the Representation Association from this time until May 1935. On May 17, 1935, the General Council appointed a committee to rewrite the Representation Association's constitution, the Barry plan, in order to make it conform to the Act, which was then pending before the Congress. The Committee prepared a draft of an amended plan. One member of the committee, Howard Williams, submitted the draft to McWhorter, the respondent's attorney, to get his advice upon the wording of one section. McWhorter made a few changes in the word- ing. The proposed amended plan was then mimeographed upon paper provided by the respondent and with the respondent's machines. At the same time the committee prepared and mimeographed, with the respondent's machinery and stationery, a letter submitting the amended plan to the members and a ballot form for use in the vote upon the amendment.37 Williams, a committee member, then spent 37 Howard Williams , a member of the committee, testified that the committee mimeo- graphed these documents in June 1935 , prior to their approval by the General Council, because it desired to have the respondent meet the expenses involved . He could not ALABAMA POWER COMPANY 671 about a week in touring the system and getting the approval of various division councilmen to the proposed amendment. The petition of 20 per cent of the members for an amendment is required by the Barry Plan. The respondent paid Williams for the time spent in this distribution and paid the expenses incidental thereto.38 On July 9, 1935, the General Council met in the Alabama Power Building, Birmingham, voted to hold an election upon the amendment, and approved the explanatory letter and ballot already prepared by the committee. The minutes of the meeting also disclose that McWhorter, the respondent's attorney, was called in to the meeting to interpret some of the provisions of the Act; that the secretary of the General Council was then instructed to write a letter to Barry advis- ing him that no expenses incurred after the effective date of the Act would be certified to the respondent for payment; and that a pro- posal 39 for a general wage increase was taken up with Barry, who promised that the General Council would have an answer on the proposal shortly. Copies of the proposed amended plan were then sent out to the Division Councilmen for distribution to members of the Representa- tion Association, with the letter advising that an election would be held upon it on August 20, 1935. Some meetings were also held to explain the amended plan to the employees. On July 14 or 15, 1935, Councilman McRae went to Gorgas to hold such a meeting. Either Northcutt or Kindley, employees active in the Representation Associa- tion, told Superintendent Lineberry of the expected visit and Line- berry gave the Representation Association his permission to have the meeting held during working hours. McRae addressed the men and told them it was necessary to amend the Barry plan because of the passage of the Act. At about that time Lineberry told Northcutt recall that the committee had been advised that the respondent would not or could not pay for this work at a later date. Lamar Aldridge, the respondent's treasurer, testified that prior to the passage of the Act, he and Vice -President Barry decided that if the Act passed, the respondent could not continue to pay the expenses of the Representation Association. Barry testified that this decision was not communicated to the Representa- tion Association. ss The trip was completed prior to the effective date of the Act. as The proposal was in the form of a letter to the respondent 's president and vice presi- dent which set forth arguments in favor of a wage increase and included the recommenda- tion that the respondent: "Seriously consider our statement that this Council and Representation Asso- ciation is threatened with destruction or replacement by outside labor organizations unless some outstanding and significant move is sponsored and encouraged by this Association and our Management." Barry's reply was delivered to the wage committee, which was appointed by the Repre- sentation Association, in July or August 1935. Barry explained the reasons why the respondent could not give a general wage increase at that time and with respect to the above-quoted recommendation , pointed out that it was unsound ; that if the employees did not believe in the Representation Association they could change it ; and that the respondent hoped that the fears of the Representation Association were groundless and that the organization would be preserved. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that if all the employees would get behind the Representation Asso- ciation it could be made to work without having any outside organi- zation 40 The election on the amended plan was held on August 20, 1935. Ballot boxes were placed around the respondent's plants and at least some employees cast their votes during their working hours. The constitution, as altered by the amendment, was adopted. The amendment made only two substantial changes in the Repre- sentation Association; namely, in changing the name of the organiza- tion to Alabama Power Employees' Association and in providing that if payment of expenses by the respondent should constitute a violation of any valid provision of law, the General Council. should then have authority to assess membership dues at the rate of 15 cents a month. The amended plan provided that the incumbent officers and council- men of the Representation Association should remain in office until the next annual election. Other changes of a minor character, which in no way altered the general organizational scheme of the Representa- tion Association, were also made but many of the provisions of the two constitutions are identical. On August 20, 1935, with the acceptance of the amended constitu- tion, the Employees' Association came into being and the Representa- tion Association was considered dissolved. 3. The Employees' Association from August 20, 1935, to July 23; 1938 Officers and councilmen of the Representation Association con- tinued to act as such for the Employees' Association.41 They con- tinued to use the Representation Association books and records and carried to completion the negotiation of an agreement with the re- spondent, originally initiated by the Representation Association. The Employees Association's General Council and Production Divi- sion Council continued to meet in the respondent's building in Bir- mingham until May 1937. Many of the Departmental Councils con- tinued to meet and hold elections upon the respondent's property, in some instances in superintendents' offices during working hours, as late as April 1938. The Employees' Association officials likewise continued to use the respondent's stationery and had minutes of some of the council meetings typed by the respondent's stenographers. 40 About 2 weeks later Lineberry told Northcutt that the I. B. E. W. affected the re- spondent as would the shaking of a red rag in a bull's face and that the Representation Association affected the I. B. E. W. In the same way. 1 New officers and councilmen were elected in April 1936. Robert Klein was elected as chairman of the General Council shortly thereafter and continued to hold that position until May 1938. Klein was a cashier in the general office in Birmingham and handled the respondent's general cash book. He had authority to recommend the hiring and discharging of employees in his department. ALABAMA POWER COMPANY 673 The expenses of the election of August 20, 1935, conducted by the Representation Association were ultimately paid by the Employees' Association out of dues collected by it. Shortly after the election, the Employees' Association requested the respondent to deduct dues from the salaries of the employees. The respondent agreed to insti- tute a "check off" system but informed the Employees' Association that deductions could be made only upon the basis of individual authorizations signed by the employees. The Employees' Associa- tion then had membership application cards printed which had at- tached to them authorizations for the deduction of Employees' Association dues from the salary due to the signer. An applicant ordi- narily signed both cards.42 Distribution of these cards by the em- ployee representatives among the employees started about August 31, 1935.43 Solicitation in behalf of the Employees' Association was undertaken by at least one supervisor, F. J. Springer, foreman of the substation maintenance crew, who was at that time the chairman of his Division Council. Springer handed out the cards to the men in his crew and others and asked them if they wished to sign. The men signed the cards and returned them to Springer who completed filling them in. Springer testified that he filled in 40 or 50 applica- tion cards in this manner. As already indicated, the Employees' Association continued to function in much the same manner as had the Representation Asso- ciation. It negotiated contracts with the respondent and undertook the settlement of individual grievances. During the active exist- ence 44 of the Employees' Association the respondent's officials made clear to the employees that they would do well to refrain from I. B. E. W. activity, and to join the Employees' Association.- During the year 1936, Superintendent Neeson inquired of McDaniels, an employee, whether he belonged to the I. B. E. W. When McDan- 42 Persons on commission rather than a straight salary did not sign the authorizations. 3 During 1936 , Employee Representative Maxwell asked James Farrar to join and, when he refused , Maxwell asked why and wrote down the answer which Farrar gave. Farrar inquired why be did that and Maxwell replied that he wanted to turn over the answers to Superintendent Neeson when he returned from Mobile and that he had also written down the replies of other employees . Subsequently , Farrar asked Maxwell whether he had given the information to Neeson . Maxwell said that he had and that Neeson had read the material and had requested that the employees' replies be turned over to him. Neither Neeson nor other supervisors spoke to Farrar about his failure to join the Employees ' Association or his reasons therefor. Neeson denied that he had requested Maxwell to get the information but did not deny that he had received such information from Maxwell . We find that Maxwell gave Neeson the information. "There is a conflict in the testimony as to whether the Employees ' Association is still in existence. This matter is discussed below. " There is evidence that these officials were instructed not to interfere with labor organization and not support any union . The general instructions , unless they were followed, are immaterial . The activities of supervisors are coercive irrespective of whether they are carried on pursuant to, or in violation of, instructions . The respond- ent is not absolved from its responsibility for the acts of its agents merely because they were contrary to instructions. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD iels replied in the affirmative, Neeson advised him that it would be best not to belong; that the respondent would do more for him if he were not an I. B. E. W. member; and that the payment of I. B. E. W. dues was just a waste of money.46 In late June 1936, Superintendent Lineberry asked F. F. Hyche, an employee, whether he had joined the I. B. E. W. Hyche said that he had applied for membership. Lineberry told Hyche that he had been coming to Lineberry for advice on other matters but if the I. B. E. W. went on strike, he, Lineberry, would be through with Hyche; that Hyche should join the Employees' Association and "build himself up" with the respondent. When Hyche replied that he had not joined the I. B. E. W. because he was "against" the re- spondent, Lineberry explained that Hyche was either for or against the respondent since he could not "serve two masters." During the summer of 1936, Superintendent Hall inquired from Mussleman, an employee, what benefit he expected to derive from the I. B. E. W. and expressed the view that the only persons benefited by that or- ganization were its International officers, that it was "all hokum" about the rank and file receiving any benefit. After advising Mus- sleman that he could do his fellow workers more good by working hard in the Employees' Association, Hall cautioned him that he need not expect any good jobs with the respondent if he stayed in the I. B. E. W. Mussleman replied that he did not believe that Hall or his assistant would discriminate. Hall answered, "Yes, but un- fortunately, we are not the Alabama Power Company." Sometime during the latter part of 1936, or in 1937,47 Superin- tendent Lineberry inquired of John Walker, an employee, "John, have you heard about our union." Walker said he had not. Line- berry said, "Well, we got a union, John, you can join it if you want to. It will cost you 15 cents a month." The amount of dues men- tioned clearly indicates that it was the Employees' Association to which Lineberry referred. In February 1937, Superintendent Dawkins said to Romine, an employee, that he understood that Romine had withdrawn from the Employees' Association, and that he was sorry Romine had done so. Dawkins advised Romine that so far as he, Dawkins, was concerned, Romine could belong to anything he wanted to but that Dawkins felt that the respondent would rather that Romine did not belong to the ' Neeson denied that he had ever discussed the I . B. E. W. with McDaniels in the year 1936, and testified that he never discussed the I . B. E. W. with any of the men after the effective date of the Act. The views expressed are those Neeson is said by other employees to have expressed to them and we find no reason for questioning McDaniels' recollection of the date of the conversation . We find that the above statement Is substantially correct. •4 The witness was not certain of the date but was sure that it was subsequent to 1935. ALABAMA POWER COMPANY 675 I. B. E. W.48 On May 6, 1937, Fred Mayfield, an I. B. E. W. mem- ber, and two friends paid a visit to Lay Dam where S. R. Powers is the superintendent. On his way out of the plant, Mayfield met Powers who said to him, "Mayfield, I would rather you fellows wouldn't come up here trying to organize my men." Shortly prior to an election held by the Board in November and December 1937, discussed below, McRae, accompanied by W. S. Par- rish, another employee, went to visit the Rotary Substation at Mont- gomery, where Pete Chambliss was foreman. At that time Chambliss informed McRae, in the presence of several employees of the sub- station, that he, Chambliss, was doing everything in his power to fight the I. B. E. W.; that the I. B. E. W. was misrepresenting the facts when it said that the management was not antagonistic to the I. B. E. W.; and that the respondent's, vice president, Coleman, had said at a banquet that the respondent did not need the I. B. E. W., since the Employees' Association was filling the bill 49 The respondent's attitude toward the I. B. E. W., and its freedom in allowing the employees to be aware of that attitude, is further demonstrated by a letter sent on September 13, 1937, to Superintend- ent Dawkins by District Manager Kittredge. The letter reads as follows : Mike Neeson [superintendent of production] told me the other day that you and Winn [an employee] thought I was responsible for getting Winn sent back to Martin Dam, and he said he told you that I had nothing to do with it which was true. I think this may have started from something I said to Mr. Thigpen [an employee] one day when we were discussing union activities, before I found out that Thigpen was active in it [the I. B. E. W.]. I was talking to him about Winn keeping after S8 Dawkins' version of the incident was that the I. B. E. W. was discussed only with reference to its insurance program and that he had not told Romine that he felt that the respondent would prefer that Romine not join the I. B. E. W. In view of our findings above and below as to what various supervisors had stated the respondent 's attitude to be, both before and after this time, we find that the version of the incident given above is substantially correct. 49 The version given above is McRae's . Chambliss testified that the visit took place shortly before the election conducted by the Board in the fall of 1937; that a number of men from the hydroelectric plants had visited the substation during that period and he so informed McRae ; that he, Chambliss , knew what McRae was there for and he was going to vote against the I. B. E. W.; and that he had told McRae that he "was going to do all the harm" to the I . B.. E. W. that he could. Chambliss denied that he had said that the I. B. E. W. was misrepresenting when it said that the management was not hostile to it and that he had quoted Coleman to the effect that the Employees ' Association was filling the bill . Chambliss could not recall that Coleman's name was mentioned. Chambliss also testified that there had been no banquet or meeting with the respondent's officials in years. W. S. Parrish, who was also present at the interview, substantially corroborated McRae's version of the interview . We find, therefore, that McRae's version of the interview is substantially correct but our finding does not go to whether or not Coleman in fact made the statement attributed to him at the interview by Chambliss. 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD our boys trying to induce them to join [the I. B. E. W.] and I remarked to him that it might be a good thing to send Winn back to Martin Dam, but that is as far as the thing went. As stated above, pursuant to a request made by the I. B. E. W., the Board, with the respondent's consent, on November 29, 30, and December 1, 1937, held an election among the employees of the re- spondent to determine whether or not they desired to be represented by the I. B. E. W.60 The I. B. E. W. was defeated in the election by 84 votes out of the 1,186 votes counted. Shortly after the election, Superintendent Winston informed McIntosh that he personally did not care to what organization the men belonged but that he thought there was no question that the respondent would prefer to deal with the Employees' Association "as they had it" rather than with the I. B. E. W. A further illustra- tion of the respondent's continued assistance to and interference with the Employees' Association is the conversation between R. C. Gaunt and Superintendent Hall. Gaunt had been active in the Employees' Association but resigned on February 1, 1938. He had joined the I. B. E. W. some months earlier. At about the time of his resigna- tion from the Association, Hall asked Gaunt how he expected to get anywhere riding two horses. He also stated that Gaunt had some Employees' Association records which he had been requested to re- turn and accused Gaunt of having turned them over to the I. B. E. W. instead. Gaunt, as a matter of fact, had not turned the records over to the I. B. E. W. On June 29, 1938, the respondent replied to the Employees' Asso- ciation's request for a meeting to negotiate a new contract by in- forming it that charges had been filed by the I. B. E. W. alleging that the Employees' Association was dominated and supported by the respondent, and that in view of the charges the respondent be- lieved it inadvisable to meet with the Employees' Association. The Employees' Association took no immediate action with regard to this letter or the information contained therein. 4. The Employees' Association and the Independent , from July 23, 1938 On July 23, 1938, R. B. Freeman,61 a member of the Employees' Association, called a meeting in Birmingham of employees selected 60 The Employees' Association informed the Board that it did not desire to have its name placed upon the ballot . Both the Employees' Association and the I. B . E W. were active in campaigning for the election , attempting to persuade the employees to vote as the particular organizations desired. There is evidencE : in the record that Line Foreman Overton was requested to use his influence with his crew to get them to vote in favor of the I. B. E. W. but there is no evidence that he did so. A line crew usually consists of 7 or 8 men. 01 Also referred to in the record as R. B . Freedman. ALABAMA POWER COMPANY 677 from various localities, of whom many were members of the Em- ployees' Association. At this meeting the Independent was organ- ized. One of the employees invited to the meeting was Marshall Blackmon, who subsequently became the president of the Independ- ent. On July 19, 1938, Freeman telephoned Blackmon and asked him to meet him, Freeman, on July 23, 1938, in the Thomas Jefferson Hotel in Birmingham. Blackmon asked Freeman what it was "all about" and Freeman said that he would tell Blackmon when he saw him. Blackmon testified that he had assumed that the meeting was about a union although he had no reason for making the assumption. Similarly, S. W. Templin'52 who became one of the vice presidents and secretary-treasurer of the Independent, was invited to attend by Freeman and was told that he would find out. what it was about when he arrived. About 12 employees and Rice, an attorney, attended the meeting. Rice had previously been retained by the Employees' As- sociation in connection with the election held under the auspices of the Board in November 1937 and continued to represent the Em- ployees' Association during the summer and fall of 1938. Freeman informed Heath, who inquired how the Independent happened to retain Rice, that Rice was retained by Freeman upon the recommen- dation of Howard Williams, treasurer of the General Council of the Employees' Association. The meeting was opened by Freeman, who stated that the purpose of the gathering was to organize an independent union which would meet the requirements of Federal and State laws. He explained that he had consulted Rice, had requested him to draw up a constitution, and had then called together those present as representative persons from each division to go over and ratify the constitution drawn by Rice. Freeman said that the Employees' Association was going to be "thrown out," because the charges made by the I. B. E. W. would be upheld by reason of the fact the Employees' Association was "de- rived" from the Representation Association. Rice also spoke and said that it was necessary to have a workable organization in the event that the Employees' Association were ordered disestablished by the Board because the Board, if there were only one labor or- ganization in existence, would then "recognize" the I. B. E. W. as the exclusive bargaining agency without reference to whether or not it represented a majority. The constitution thus presented was adopted at the meeting after some changes had been made. It has never since been accepted by the membership of the Independent or by representatives designated by the membership. In addition, of- ficers were elected at the meeting, to serve one year or until their 52 Templin is the local manager of the Sylacauga substation, in charge of three other men. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD successors were elected.63 A resolution was adopted that the name of the organization should be Independent Union of Alabama Power Employees, Inc., and that it be incorporated. Provision was made for monthly dues of 25 cents. On July 27, 1938, incorporation papers for the Independent were filed. On July 30, 1938, the officers of the Independent distributed a letter to employees announcing formation of the organization, enclosing a copy of its constitution, and soliciting the employees to join .54 About August 1, 1938, Blackmon telephoned Lyle, the chairman of the General Council of the Employees' Association and inquired as to the status of the Employees' Association. Lyle informed Black- mon that the Employees' Association was not negotiating with the respondent, that things were at a "standstill." On August 11, 1938, the Employees' Association sent out a letter to its members informing them inter alia that charges involving it had been filed with the Board, denying that the Employees' Association was dominated or supported by the respondent, and stating that the Employees' Asso- ciation had requested from the respondent that if the respondent should stipulate with the Board to withdraw recognition from or disestablish the Employees' Association, the respondent retain the right to advise the employees concerning the basis for such action. On August 24, 1938, the Independent sent out a letter, signed by Blackmon, to all employees, soliciting membership in the Independent and stating : ... the [Employees'] Association has successfully represented the majority of the employees without coercion or interference from anyone. Now after two elections in which the majority of the em- ployees have signified their desire not to be represented by any outside labor organization, the I. B. E. W. has filed charges with the N. L. R. B. charging the Alabama Power Company with unfair labor practice arising out of its relationship with the Alabama Power Company Employees' Association ... These charges,. as we understand them (and it is the opinion of competent counsel), are sufficient grounds for the Labor Board to order the company to cease and desist negotiating with the ... Employees' Association ... if any one of these charges is sustained by the 63 The same • officers were holding office at the time of the hearing, no election having been held in September 1938 as required by the constitution because the Independent had no money to pay for an election. 64 On August 4, 1938, a second letter was sent out by the Independent to employees explaining that the organizers of the Independent had acted because of their feeling that "in view of certain charges having been filed by the I. B. E. W. with the N. L. it. B. .. . which charges , if sustained , would automatically disestablished the . . . Employees' Association , therefore leaving the employees without any majority bargaining whatsoever." ALABAMA POWER COMPANY 679 Labor Board, that would automatically disestablish the Em- ployees' Association as our majority bargaining agency, which would, of course, leave the employees without majority repre- sentation.... ... we are now again being forced to decide who shall bargain for us. The answer should be, as has been in the past two elec- tions, the independent employee representative type of labor or- ganization. This Independent Union has preserved for the em- ployees the right to select who shall represent them to the company on matters of wages, hours, [etc.]... . I have been a member of the . . . Employees' Association since its organization, and definitely know that through its efforts it has received a better wage agreement and many worthwhile accom- plishments that could not have been negotiated by any other bargaining agency. I have discussed with the chairman of the . . . Employees' Association the status of the old organization, and he informed me that it would definitely disband and that no further dues would be collected. His letter to each of you, [the letter of August 11, referred to above] he said, was to let you know that the old organization was not tucking its tail and running, but was emphatically denying charges made by the I. B. E. W.... The chairman has already made application for membership in the new organization [Independent]. (Italics supplied.) This letter was prepared with Rice's assistance as was all literature sent out by the Independent.- Templin, the secretary of the Inde- pendent, attended to the mailing of the letters to prospective members whose names, according to his testimony, he procured from the roster in the Employees' Association office 56 to which he had access as a councilman in the Employees' Association from the engineering de- partment. Late in July 1938, the Independent arranged with the Employees' Association, through Williams, to use space in the Em- ployees' Association office and to pay rent therefor for about a week. Subsequently, on October 1, 1938, the Employees' Association gave up the office space and the Independent took it o'er. 57 Other letters were sent out from time to time soliciting the support of the employees for the Independent. One of these letters was sent 55 No provision was made for the payment of Rice's fee . According to Blackmon, Rice was taking a chance upon the success of the Independent. Ge The Employees' Association took office space on June 14, 1937. Prior to that time its records were kept in the respondent 's building and it received mail from the respond- ent's mail box. e7 From August 25. 1938, until October 1, 1938, the Independent rented oilier office space. 283029-41-vol. 18--44 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARL to- S. R. Watson, superintendent of the Anniston District. Watson replied, in a letter to Blackmon, as follows : A few days ago I received a letter from you dated Sept. 19, 1938, in which you invited me to sign an application for mem- bership in the Independent . . . I believe that this must have been an error in addressing. Heretofore in my capacity as Su- perintendent of the Anniston District . . . I have been barred by the rest of the employees from membership in their unions. I believe that was a reasonable ruling on their part and it seems to me that the ruling should still apply. However, if I am wrong and my membership would be of any value to the rest of the employees I will be only to (sic) glad to help. Personal solicitation of membership in the Independent was also carried on by those interested in the organization. They were as- sisted in this solicitation by the actions and attitudes of some of the respondent's supervisors. High-line foreman, R. L. Winn, received Independent literature from Templin and took it around to the houses of the members of his crew in July or August 1938. On August 8, 1938, after he had become a member of the Independent, Winn ac- companied Templin and another person active in the Independent to an Independent organizational meeting held in the home of J. R. Hall, Jr.,", then Employees' Association councilman from Martin Dam. This meeting was also attended by E. C. Milton, plant foreman of the, Upper Tallassee and Thurlow Dams.69 Winn addressed the meet- ing, spoke in favor of the Independent, and told of grievances which had arisen among the members of his crew and which had been handled by the Employees' Association. R. L. Winn's brother, W. D. Winn, a line foreman, during the noon hour on August 12, 1938, was filling out his. own Independent appli- cation card 80 in the respondent's local office and told two or three members of his crew who were present that those who cared to join the Independent might do so and that he would mail in their cards with his own. W. D. Winn also filled in a portion of one Rhodes' 58J. R. Hall, Jr., is the clerk of the respondent's three hydroelectric plants located on the Tallapoosa River. 69 A plant foreman of a hydroelectric plant is also commonly referred to as an "assistant superintendent." Plant foremen have the same powers as other foremen . They are in charge of the plants in the superintendent 's absence, and can make recommendations concerning the hire or discharge of employees, the final word on such matters being reserved to E. W. Robinson , vice president in charge of operations, and S . M. Barry, vice 'president and general manager. 80 These application cards are almost identical with those used by the Employees' Association and were copied from the latter . Attached to them are authorizations to the respondent to deduct Independent dues from salary due the employees , identical with those used by the Employees' Association . These authorizations have not been presented to the respondent. ALABAMA POWER COMPANY 681 card at the latter's request. All the other members of W. D. Winn's crew had by then filled out their cards. At this time W. D. Winn was a councilman in the Employees' Association and testified that as far as he then knew the Employees' Association was still active. A substation maintenance foreman, J. O. Summers, distributed In- dependent application cards to the members of his crew. Early in August 1938, Vernon Taylor was given an Independent application card by his superior, W. H. Murray."' Murray told Taylor to look it over and if it suited him to fill it out and give it to Arthur Abels, who was in charge of the service department at Gadsden. At about the same time, C. E. Packard, foreman in the turbine room at the Gorgas plant, asked Chester Jackson whether he had yet joined the Independent. Jackson said that he had not, that he wanted to know more about it first. Packard replied, "Well, the main thing is to keep the I. B. E. W. out of here. Ninety or ninety-five percent of the members of the Independent Union had rather not have any union at all, but they would rather have a company union than have the I. B. E. W." 62 That this was the attitude of the Independent members is shown by the testimony of Blackmon, president of the Independent, who admitted at the hearing that the presence of the I. B. E. W. in the respondent's plants had some effect upon himself and the other organizers in coming to a decision to organize the In- dependent, although it was not "necessarily" one of the main reasons for organizing the Independent. On September 1, 1938, Lyle, chairman of the General Council of the Employees' Association, acting upon the advice of Rice, wrote the respondent as follows : After due consideration of all the circumstances regarding the relationship of this Association with Alabama Power Company, it has been decided to advise that effective immediately this Association will not negotiate further with the Company, as the majority bargaining agent for their employees... . You are also advised that this Association will not request any further pay-roll deductions for membership dues. 61Murray was an Employees' Association councilman in June 1937 . His term expired in April 1938. ea Packard denied that any such conversation had taken place . He also testified that Jackson's general reputation for truth was bad, that Jackson had made a number of mis- statements . Jackson testified that immediately. after the conversation he made a memo- randum of the conversation . This memorandum was introduced into evidence. The memorandum gives a version substantially similar to that given in the text above, which is a quotation of Jackson 's oral testimony. The Trial Examiner , who observed the be- havior of the witness on the stand , found that Jackson's testimony was truthful. We see no reason to question the memorandum made by Jackson shortly after the conversation and we find that the version of the conversation appearing in the text above is substan- tially correct. 682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 7, 1938, the respondent replied to Lyle's letter and pointed out that the deductions were made upon the basis of in- dividual authorizations and not upon the basis of an agreement between the Employees' Association and the respondent. On Sep- tember 8, 1938, the Employees' Association replied and advised the respondent that it would not receive any "monies representing pay- roll deductions . . . whether the employees have withdrawn their requests and authorizations or not." The respondent then sent out notices to the employees notifying them that it had been notified by the Employees' Association that it would receive no further pay-roll deductions in payment of dues and that the respondent could there- fore no longer comply with the authorizations to make deductions for this purpose. The total amount deducted from salaries and paid over by the respondent to the Employees' Association for dues dur- ing the period that the check-off was in effect amounted to $7,115.40. Lyle testified that this action was taken pursuant to the authority, to take whatever action Rice recommended, vested in him by the General Council at an informal meeting, sometime in August 1938, at which five out of seven councilmen were present. No regular meeting was held for the purpose. Williams, treasurer of the Em- ployees' Association, testified that the only activities carried on by the Employees' Association after June 30, 1938, were the administra- tion of the health and accident insurance program and the hospitali- zation insurance program, which were sponsored by it. Williams further testified that no official of the organization had discussed with him the question of financing it after June 30, 1938. Although there is conflicting evidence in the record as to whether or not the Employees' Association is still in existence, it is clear and we find that the Employees' Association ceased to act as a repre- sentative of the employees for purposes of collective bargaining with regard to wages, hours, and other conditions of employment on or about September 1, 1938. It is also clear that thereafter the Em- ployees' Association continued to exercise its functions with regard to insurance programs, of which it was the sponsor. On September 9, 1938, the Independent wrote to the respondent advising it that the Independent had been organized, that a majority of the employees were expected to join, and that when they had done so the Independent would request recognition. A copy of the Independ- ent's constitution and bylaws was enclosed. On October 14, 1938, the Independent wrote to the respondent claiming to represent a majority of the employees and requesting recognition as bargaining agent for the employees. On October 17, 1938, the respondent replied that a complaint had been issued by the Board against the respondent alleg- ALABAMA POWER COMPANY 683 ing that it had assisted in the formation of, and had contributed sup- port to, the Independent; and that in view of the pending complaint, the respondent thought it inadvisable to recognize the Independent until further developments on the complaint." 5. Conclusions It is clear from the record that the Representation Association was originally set up by the respondent; that it received complete finan- cial support from the respondent from its inception until July 5, 1935, that all its meetings were held upon the respondent's premises, usually during working hours; and that the respondent's other property was used freely by'-'the Representation Association in the conduct of its business. It further appears and we find that the respondent's purpose in setting up and continuing to support the Representation Association was to counteract the organizational activity of the I. B. E. W. That this was the respondent's purpose is shown by the fact that the Representation Association was organ- ized at the time when the I. B. E. W. was becoming active in its cam- paign for membership; by the respondent's hostility to the I. B. E. W., as demonstrated by numerous remarks of supervisory officials to that effect; and by Superintendent Lineberry's statement to the employees under his supervision that he had told Barry that if the respondent would restore the bonus and give a wage increase he thought the "agitation" among the employees would stop and no form of repre- sentation would be necessary. That the respondent was deeply inter- ested in the adoption of the Barry plan is further indicated by the activities of Superintendents Ames and Lineberry in connection with the employees' election upon the acceptance or rejection of the Barry plan. It will be recalled that Ames had the plan resubmitted to a vote when the first vote resulted in the defeat of the plan at the Magazine plant and that Lineberry warned that if the employees could not see the question of the plan as the respondent saw it, they would sooner or later have to seek work elsewhere. That the superintendents were acting pursuant to the respondent's well-understood policy that the plan was to be the form of employee representation to exist in its system, and as such was to be, accepted by the employees, is demon- strated by Superintendent Dawkins' statement that it would "look bad" for his plant if the men did not join. m The Independent claims to have over 1,100 members, of whom 60 per cent are said to be employees classified as field or physical workers. 1,191 employees voted in the elec- tion held in November 1937 under the auspices of the Board. The record does not disclose the total number of employees who were entitled to vote in this election . The record does show that it was not unusual for an employee to be a member of the I. B. E. W. and at the same time to be a member of the Representation Association or the Employees' Association, but it does not indicate whether there are many employees who belong both to the I. B. E. W. and the Independent. 684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The foregoing, together with the pressure put upon employees to join the Representation Association by superintendents in at least two plants, and the continued expression of the respondent's hostility to the I. B. E. W. by supervisors, indicate clearly that the Barry plan was forced upon the employees and was in no sense their free and untrammelled choice. Nor was the election of September 1934 held by the National Labor Board a much better test of the employees' desires in the matter of representation. - The respondent interfered with and attempted to influence the results of this election by bearing the expenses of the Representation Association's campaign, by urging the employees to give it a 90-day chance, and by Lineberry's sugges- tion that Kindley use his influence to get the men to "vote right." In view of Lineberry's outspoken attitude of hostility to the I. B. E. W., we entertain no doubt that he intended that the men should vote in favor of the Representation Association. In addition to the forego- ing, the respondent further clarified its hostility to the I. B. E. W. and favoritism to the Barry Plan, by denying the I. B. E. W. use of its facilities while giving the Representation Plan complete financial support. The respondent not only initiated and completely supported the Representation Association, it also interfered with the day-to-day administration of the Plan. As stated above, Superintendent Daw- kins complained to Ross, the chairman of the Production Division Council, about the latter's. activity in taking up grievances and warned him that for his-own good it would be well to handle griev- ances as the plan provided. This implied threat to Ross' well-being in an attempt to prevent him from exercising his best judgment in behalf of his constituents is the clearest form of domination and interference with the affairs of a labor organization. We find that the respondent was entirely responsible for the origi- nal organization of the Representation Association and that it there- after interfered with its administration and dominated and supported the Representation Association until July 5, 1935. The respondent contends that these acts, which took place prior to the effective date of the Act, are immaterial since they were not in violation of the Act. As already stated, the respondent's activities prior to the effec- tive date of the Act are not unfair labor practices within the meaning of the Act, but their influence upon the employees and their results continued after that date. On July 9, 1935, the General Council of the Representation Association, holding a meeting in the respondent's building in Birmingham, decided to notify the respondent that no more expenses would be turned over to the respondent for payment. Other than this cessation of the respondent's direct financial sup- ALABAMA POWER COMPANY 685 port, 114 the Representation Association continued unchanged after the effective date of the Act until the amendment of its constitution of August 20, 1935, which resulted in the formation of the Employees' Association. We find that after the effective date of the Act, the respondent continued to interfere with, dominate, and support the Representation Association, an organization originally formed by it, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Through the action of Howard Williams, then the secretary of the General Council of the Representation Association, the respondent bore a substantial portion of the cost of the amendment to the con- stitution of the Representation Association which resulted in the organization of the Employees' Association. It paid for the mimeo- graphing and paper required for the various necessary documents and paid Williams' traveling expenses in connection with the amendment. Although the respondent's major outlay was made 65 prior to the effec- tive date of the Act, nevertheless it resulted -in substantial assistance in the formation of the Employees' Association, since neither the Representation Association nor the Employees' Association had, at that time, any funds of their own, and a large number of documents were prepared.°° The amendment made only two substantial changes in the Barry plan; it changed the name of the organization, and it allowed dues of 15 cents a month to be assessed in the event that payment of expenses by the respondent should violate any law. The officers of the Representation Association continued to act as officers of the Employees' Association; they continued to use the Representation Association books and records in the transaction of the Employees' Association's business; and continued and concluded the negotiation of an agreement with the respondent, which they had initially sought as officers of the Representation Association. Meetings and elec- tions of the various Councils of the Employees' Association con- tinued to be held upon the respondent's premises, sometimes during working hours. 117 Such expenses of the amendment to the Representa- 86 The employees as a whole were given no notice that the respondent had ceased giving direct financial support. So far as they knew, the Representation Association was still fully supported by the respondent. es The respondent's machines , after the effective date of the Act, were used by the Representation Association to fill in blank dates left in the documents. ee Further assistance in the organization of the Employees ' Association was the advice of the respondent's attorney upon the wording of one section of the amendment. Wil- liams' action in showing the proposed amendment to the respondent's attorney further indicates the subservience to the respondent of those responsible for the organization of the Employees' Association. e7 As stated above, the Council meetings held in Birmingham were not held upon the respondent's premises after May 1937 but local meetings and elections were so held at least as recently as April 1938. 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion Association as were not met by the respondent, in the mannel above indicated, were ultimately paid out of the funds of the Em- ployees' Association.68 It is clear from the foregoing, and we find, that the Employees' Association is the same organization as the Rep- resentation Association, operating under a new name; that the respondent contributed financial support to the formation of the Employees' Association; and that it thereafter assisted the Em- ployees' Association by allowing it free use of the respondent's prop- erty and time for meetings and elections. We find further that the respondent aided the Employees' Association by collecting its dues through the "check-off" system administered by the respondent. The "check-off" did more than merely facilitate the collection of dues. It also discouraged the employees from withdrawing from the Em- ployees' Association, since the only method of stopping the payment of dues was to notify the respondent to cease making the deductions. Since the employees were made well aware of the respondent's desire that the Employees' Association endure, both by the assistance ren- dered to it and by the activities of supervisory employees, they would naturally be hesitant to advise the respondent to cease deduct- ing dues. Thus the "check-off" tended to perpetuate the effects of the respondent's unfair labor practices. During the active existence of the Employees' Association, the respondent's officials made it clear to the employees that they would do well to join the Employees' Association rather than the I. B. E. W.; that the respondent would do more for them if they were not I. B. E. W. members; that they should join the Employees' Associa- tion and "build up" themselves with the respondent; and that I. B. E. W. members need not expect good jobs. This course of conduct clearly interfered with the formation and administration of, and gave support to, the Employees' Association, since its neces- sary effect was to make the employees fearful that a failure to join the Employees' Association rather than the I. B. E. W. would result in economic hardship to, or discrimination against, them. Upon the basis of the foregoing, we find that the respondent has dominated and interfered with the formation and administration of the Employees' Association and has contributed financial and other support thereto and has thereby interfered with, restrained, and co- erced its employees in the exercise of the rights guaranteed by Section 7 of the Act. By the activities of the respondent's officials and by the various forms of support contributed to the Employees' Association, the employees were fully advised that the respondent favored the Em- 68 The expenses were originally met by various officials of the Representation Associa- tion and they were reimbursed by the Employees' Association. ALABAMA POWER COMPANY 687 ployees' Association and that a failure to support that organization might result in some economic injury to themselves. The employees also knew that the respondent had persisted in its policy of support and favoritism with respect to both the Representation Association and the Employees' Association over a long period of time, both be- fore and after the effective date of the Act. Under these circum- stances, we find that the employees could not have felt free in their choice of bargaining representatives. Thus the election of November 1937, held under the auspices of the Board, was not a true indication of the desires of the employees as to a bargaining representative. The final consideration here presented is that of whether or not the Independent has been dominated, interfered with, and supported by the respondent. The Trial Examiner found that the respondent caused to be formed, and sponsored, the Independent. The evidence relating to the respondent's direct interference in the formation of the Independent is summarized above and concerns the assistance given the Independent by supervisors in the solicitation of members. Foreman R. L. Winn distributed Independent literature to the mem- bers of his crew at their homes; he attended and spoke at an Inde- pendent organizational meeting; Foreman Milton attended the same meeting; Foreman W. D. Winn offered to mail in the application cards of the members of his crew with his own; Foreman Summers distributed application cards to the members of his crew; Foreman Murray gave Taylor an application card and told him to fill it out if it suited him; and Foreman Packard asked Jackson if he had joined the Independent and advised him that the principal object of the Independent was to keep out the I. B. E. W. As to all these foremen, the respondent contends that there is nothing in the character of their position upon which to base an inference that they could speak for the respondent in a matter of policy affecting the respondent's entire system. The foremen in question have authority to make recom- mendations concerning the hiring and discharge of employees, who work under their immediate direction and take orders from them. They represent the management to those working under them and as such have at least apparent authority to inform the employees upon the respondent's policy. The respondent is responsible for their activities."' The respondent also urges that the assistance contributed by the foremen is no indication of interference with, or domination or sup- port of the Independent because foremen are eligible to I. B. E. W. membership. Whatever may be the merits of such a contention under 66 Matter of Swift 6 Company and Amalgamated Meat Cutter8 and Butcher Workmen of North America, Local No. 641 et at., 7 N . L. R. B. 269, enf'd as mod ., Swift & Co. v. N. L. R. B., 106 F. (2d) 87 (C. C. A. 10). 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other circumstances, we do not regard it as valid under those here presented. Here, the respondent had, for almost 4 years, followed a policy of dominating, interfering with, and supporting labor or- ganizations of its employees. It had, as we have found, made plain to them upon many occasions its hostility to the I. B. E. W., had threatened to discriminate against those who persisted in remaining members of the I. B. E. W., and had advised employees that they would better their positions by being members of the Representation Association or of the Employees' Association. The respondent took no action at any time to advise the employees that there was any change in this policy, or that it no longer intended to dominate and support organizations of its employees which were amenable to its wishes. Under these circumstances, the employees could not have felt free to join whatever organization they desired.70 In addition to the above considerations, it may be pointed out that while the record discloses that at least two foremen were members of the I. B. E. W., there is no evidence in the record that they undertook solicitation in behalf of the I. B. E. W. after the effective date of the Act. We find that by the activities of the foremen in behalf of the Inde- pendent, the respondent interfered with the formation of, and gave assistance to, the Independent. An analysis of the constitution and organizational structure of the Independent supports the conclusion that it is not an organization capable of operating independently of the respondent's wishes. In many respects, the constitution is similar to, and in some instances, al- most identical with, the constitution of the Employees' Association. It will be recalled that, with the two exceptions noted above, the constitu- tion of the Employees' Association was substantially the Barry plan which had been foisted upon the employees by the respondent. The constitutions of both the Employees' Association and the Independent limit their membership to the respondent's employees and provide that membership is terminated upon the termination of the employer- employee relationship. Both establish three tiers of employee-repre- sentation councils (in the case of the Independent, called "Boards"), local councils, Division Councils, and a General Council (in the case of the Independent, called the "Executive Board") and in which the chairmen of the local councils or boards make up the Division Coun- cils or Boards, and the chairmen of the Division Councils or Boards make up the General Council or Executive Board. The Independent "There is some evidence in the record that one or two of the respondent 's officials had, in the past, stated that employees were free to join any labor organization they desired. However, in the face of many statements and other indications to the contrary, they could have carried little weight with the employees. ALABAMA POWER COMPANY- 689 has changed the electoral divisions in some of the Divisions and has added a Division or two, but the plan of organization is essentially that of the Employees' Association; namely, an employees' representa- tion plan in which the membership as a whole is far removed from any direct control over the highest governing body, the General Council or the Executive Board. Both constitutions require that employee representatives be mem- bers of the organization and employees of 1 year's standing, which effectually prevents the employees from designating non-employees as their bargaining representatives. Both provide that employee repre- sentatives who leave the respondent's employment or who are trans- ferred from the electoral division from which they were elected are deemed to have vacated their offices. This provision vests in the respondent control over the representatives chosen by the employees. If an employee representative is distasteful to the respondent for any reason, it can prevent him from acting as such by discharging or transferring him. The respondent originally vested this control in itself in the Barry plan and maintained it thereafter in the constitu- tion of the Employees' Association. That the Independent should provide the respondent with the power to disqualify the representa- tives selected by the employees is persuasive evidence of the Inde- pendent's subservience to the respondent. Representatives who are themselves employees, completely de- pendent upon the respondent, cannot act freely in the interest of their constituents unless they are in some way protected against economic coercion by the respondent. The constitution of the Independent makes no attempt to provide such protection. On the contrary, it provides that its members, which includes the employee representa- tives, lose their membership if they cease being employees. Having lost his membership, an employee representative could not have his discharge protested as a grievance since provision is made only for taking up the grievances of members. Neither constitution makes provision for general membership meet- ings at which the membership can discuss its problems and instruct its representatives. Under both constitutions, meetings can only be called by the various councils or boards or upon petition of a large number of members. The membership's only functions under both constitutions appear to be the payment of dues and voting for repre- sentatives or on amendments to the constitutions. This pattern of membership non-participation, as well as the other essential elements of organizational structure discussed above, was originated by the re- spondent in the Barry plan, continued thereafter through the medium of the Employees' Association, and was ultimately adopted by the Independent. The organizers of the Independent necessarily 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were aware of the respondent's sponsorship of the Employees' Asso- ciation. The form taken by the Independent clearly flowed from the respondent's hostility to outside labor organizations and its open preference for the Employees' Association and its predecessor, the Representation Association. In view of the foregoing, the Independent may realistically be regarded as the successor to the Employees' Association. It is appar- ent, moreover, that the two organizations are more closely related than the organizers of the former were willing to acknowledge. They did admit, however, that the Independent was organized to supplant the Employees' Association and that one of the factors leading to its formation was a desire to prevent the I. B. E. W. from becoming the majority representative. As noted above, the respond- ent originally formed the Representation Association to prevent the I. B. E. W. from gaining a foothold and as a part of its policy of opposition to the I. B. E. W. The respondent continued its policy of opposition to the I. B. E. W. and support of a competing labor organization after the organization of the Representation Associa- tion's successor, the Employees' Association. In this respect, the Independent was the direct successor to the Employees' Association as the respondent's bulwark against the I. B. E. W. The Inde- pendent took care to emphasize to the employees that it was the Employees' Association's successor. In its letter to the employees of August 24, 1938, the Independent pointed out that, like the two Associations, it was "the Independent employee representative type of labor organization," and that the chairman of the Employees' Association had joined the Independent. Viewed against the back- ground of the respondent's policy of support of labor organizations of the type represented by the Independent, the letter indicated to the employees that they would do well to join the Independent, as successor to the favored Employees' Association. A further connection between the Employees' Association and the Independent appears in the similarity of their constitutions. Both employed the same attorney, who represented and advised them concurrently. As early as August 1, 1938, the chairman of the General Council advised one of the organizers of the Independent that the Employees' Association would no longer act as bargaining agent, but made no formal disclosure to this effect to the respondent until September 1, 1938. On September 7, 1938, the Independent was sufficiently organized to advise the respondent that it would soon be seeking recognition as the exclusive representative of the employees. Other factors point to a substantial identity of the Employees' Association and the Independent. The former allowed the latter to use its membership lists for organizational purposes; ALABAMA POWER COMPANY 691 a number of Employees' Association councilmen were active in soliciting in behalf of the Independent; Howard Williams, prominent member and treasurer of the Employees' Association, assisted in mailing Independent literature; and the chairman of the Employees' Association's General Council joined the Independent before any notice was given to the respondent or to the membership of the Employees' Association that it would no longer act as bargaining representative. Under the circumstances, we think it clear that the Independent's organizers, the respondent, and the respondent's employees, all re- garded the Independent as the successor to the Employees' Associa- tion, designed to combat the I. B. E. W. on the respondent's behalf. We deem it important to stress again the effect of the respondent's long-standing and widely expressed policy of hostility toward truly independent labor organizations in general and the I. B. E. W. in particular. The fundamental purpose of the Act is that employees should be afforded a full and free opportunity to choose their bar- gaining representatives, without the influence of the employer being brought to bear, either bluntly or subtly, so as to interfere with their choice. The respondent's failure to make any genuine effort to undo the effects of its unfair labor practices and to conform its labor policy to the law of the land is clear. Its 4-year campaign of spon- sorship of "inside" organizations and hostility to the I. B. E. W. was in no wise disavowed by the mere diminution of the vigor with which this policy was proclaimed to the employees. The conclusion is inescapable that the formation of the Independent was in large part a response to the continuing desire of the respondent for a labor organization patterned after its own creature, the original Repre- sentation Association. We find that the continued existence of the Independent, with the accompanying background of employer interference, domination, and support of its two predecessor organizations, offers a permanent obstacle to any free choice by the employees of their representatives for the purposes of collective bargaining. Upon the basis of the foregoing, we find that the respondent domi- nated and interfered with the formation and administration of the Independent, and contributed support to it, and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed 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 III above, occurring in connection with the operations of respondent described in Section I above, have a close, intimate, and substantial 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY We have found that the respondent has dominated and interfered with the formation and administration of the Representation Asso- ciation, the Employees' Association, and the Independent, and has contributed support to them. In order to effectuate the policies of the Act and free the employees of the respondent from such domina- tion and interference, and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of rights guar- anteed by the Act, we shall order the respondent to withdraw all recognition from the Employees' Association, to disestablish it as a representative of the employees for the purposes of collective bar- gaining with respect to grievances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment. We shall not, however, extend our order of disestablishment to the rela- tionship between the respondent and the Employees' Association in so far as it pertains to the accident and health insurance program and the hospitalization insurance program sponsored by the Em- ployees' Association. We shall further order the respondent not to recognize the Independent in the future as a representative of the employees for the purposes of collective bargaining. We have found that the sum of $7,115.40 was turned over by the respondent to the Employees' Association pursuant to an agreement by the respondent to collect dues for the Employees' Association by pay-roll deductions, such collection of dues being a further type of support and assistance rendered to an employer-dominated organization. As we said in Matter of The Heller Brothers Company of Newcomerstown and International Brotherhood of Blacksmiths, Drop Forgers, and Helpers : 71 It seems plain to us that the authorization by an employee for the check-off of dues owed to an organization which his employer has formed and continues to dominate cannot be con- sidered as having been voluntarily given by the employee. When check-off authorizations are sought under such conditions the employee is placed in a position of permitting the check-off or of putting himself squarely upon record as openly opposed to the Company's wishes. No employee confronted with such an option can be regarded as having exercised free choice. Thus 717 N. L. R. B. 646. See also Matter of West Kentucky Coal Company and United Mine Workers of America, District No. 23, 10 N. L. R. B. 88. ALABAMA POWER COMPANY 693 the same pressures by the respondent which compelled its em- ployees to abandon their free choice of representatives enforced their acquiescence in the check-off. Under the circumstances we will restore the status quo by ordering the respondent to reim- burse its employees for amounts deducted from wages as dues for the Independent. Adapting the reasoning of the above-quoted paragraph to the facts in this case, we will order the respondent to make whole its employees individually for the full amounts deducted from their wages as dues. Since we have found that the Representation Association is no longer in existence, we shall make no order with respect to it. The respondent will, in addition, be ordered to cease and desist from dominating and interfering with the formation and adminis- tration of and from contributing support to the Employees' Asso- ciation, Independent, or any other labor organization; and to cease and desist from interfering with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing and to engage in concerted activities, for the purposes of collective bargaining or other mutual aid or protection. Upon the basis of the above 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, Alabama Power Employees' Association, and Independent Union of Alabama Power Employees, Inc., are labor organizations and Alabama Power Company Employees Representation Association was a labor organi- zation within the meaning of Section 2 (5) of the Act. 2. The respondent, by dominating and interfering with the forma- tion and administration of the Alabama Power Company Employees' Representation Association; Alabama Power Employees' Associa- tion; and Independent Union of Alabama Power Employees, Inc., and by contributing support to said organizations, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2) of the Act. 3. The respondent, by interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, 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. 694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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, Alabama Power Company, Attalla, Alabama, and its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the adminis- tration of Alabama Power Employees' Association and 'Independent Union of Alabama Power Employees, Inc., or with the formation or administration of any other labor organization of its employees, and from contributing support to said Alabama Power Employees' Association or to Independent Union of Alabama Power Employees, Inc., or to any other labor organization of its employees; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the rights to self-organization, to form, join, or assist labor organizations, to bargain collectively with representatives of their own choosing, and to engage in concerted activities, for the purposes 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) Withdraw all recognition from Alabama Power Employees' Association as a representative of any of its employees for the pur- poses of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or other condi- tions of employment, and completely disestablish Alabama Power Employees' Association as such representative; provided that the withdrawal of such recognition shall not require the interruption of the relationship between the respondent and the Alabama Power Employees' Association relating to the accident and health insurance program and the hospitalization insurance program sponsored by Alabama Power Employees' Association; (b) Refrain from recognition of Independent Union of Alabama Power Employees, Inc., as a representative of any of its employees for the purposes of dealing with the respondent concerning griev- ances, labor disputes, wages, rates of pay, hours of employment, or other conditions of employment; (c) Reimburse, individually and in full, all employees who were, or still are, members of Alabama Power Employees' Association for all dues which it has deducted from their wages, salaries, or other earnings, on behalf of Alabama Power Employees' Association pur- suant to the arrangement between the respondent and the Alabama Power Employees' Association ALABAMA POWER COMPANY 695 (d) Immediately post notices in conspicuous places in each of its plants, office buildings, or other buildings throughout its system, and maintain such notices for a period of sixty (60). consecutive days, stating that the respondent will cease and desist in the manner set forth in 1 (a) and (b), and that it will take the affirmative action set forth in 2 (a), (b), and (c) of this Order; (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. 283029-41-vol. 18-45