Virginia Electric & Power Co.

In the Matter Of VIRGINIA ELECTRIC & POWER COMPANY and TRANS- PORT WORKERS UNION OF AMERICA In the Matter Of VIRGINIA ELECTRIC & POWER COMPANY and AMALGAM- ATED ASSOCIATION OF STREET , ELECTRICAL RAILWAY AND MOTOR COACH EMPLOYEES OF AMERICA , AN UNINCORPORATED ASSOCIATION In the Matter Of VIRGINIA ELECTRIC & POWER COMPANY and INTER- NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS Cases Nos. C-914 to 0-916, inclusive, respectively.Decided February 27,1940 Electric, Gas, and Transportation Utility Industry-Jurisdiction : corporation doing both interstate and intrastate business , with integrated management and sharing of facilities, subject to Act-Interference, Restraint , and Coercion: surveillance of union meetings ; posting of bulletin hostile to outside organiza- tions ; questioning of employees concerning knowledge of union activity- Company-Dominated Union: speeches encouraging formation of ; assistance in formation of ; support ; encouragement of employees to join ; disestablished as agency for collective bargaining-Closed-Shop Contract : with company-dominated union, abrogated-Check-Off: for company-dominated union, employer ordered to reimburse employees for-Discrimination : discharge and lay-off because of union membership and activity ; requiring membership in company-dominated organization as condition of employment ; discharges for refusal to join com- pany-dominated organization ; charges of, dismissed as to two employees- Regular and Substantially Equivalent Employment : factors considered in deter- mination of : desires of employees ; difference and temporary nature of work ; employees found not to have obtained ; Trial Examiner's findings as to, re- versed-Reinstatement Ordered: discharged and laid-off employees-Back Pay: awarded ; from date of discrimination to date of offer of reinstatement ; amount for period from (late of Intermediate Report to date of Board's Order deducted from,. where Trial Examiner found employees to have secured substantially equivalent employment after discrimination. Mr. Gerhard P. Van Arkel, Mr. Beeves R. Hilton, and Mr. Samuel M. Spencer, for the Board. Hunton, Williams, Anderson, Gay c Moore, by Mr. T. Justin Moore and Mr. George D. Gibson, of Richmond, Va., and Venable, Miller, Pitcher cQc Parsons, by Mr. Roman Miller, of Norfolk, Va., for the respondent. Mr. T. H. Latham, of Virginia Beach, Va., and Mr. E. D. Bieiretz, of Washington, D. C., for the I. B. E. W. 20 N. L. R. B., No. 87. 911 912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Mr. Arthur E. Reyrnan, of New York City, Mr. Floyd Kreisell, of Columbus, Ohio, and Zimring and Rabe, by Mr. 0. David Zimring, of Chicago., Ill., for the Amalgamated. White, Temple, Hamilton & Wyche, by Mr. W. Earl White, of Petersburg, Va., and Mr. Paul Hadlick, of Washington, D. C., for the I. O. E. . Mr. Harry E. Selekman, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On July 20, 1937, Transport Workers Union of America, herein called the T. W. U., filed with the Regional Director for the Fifth Region (Baltimore, Maryland) charges that Virginia Electric and Power Company, Richmond, Virginia,' herein called the respondent, had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On August 26,1937, the T. W. U. filed amended charges that the respondent had engaged in and was engaging in such unfair labor practices within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. On February 23, 1938, Amalgamated Association of Street, Electrical Railway, and Motor Coach Employees of America, herein called the Amalgamated, filed with the Regional Director charges that the respondent had engaged in and was engaging in such unfair labor practices within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. On April 2, 1938, and on April 13, 1938, International Brotherhood of Electrical Workers, herein called the I. B. E. W., filed with the Re- gional Director charges and amended charges, respectively, that the respondent had engaged in and was engaging in such unfair labor practices within the meaning of Section 8 (1), (2), and (3) and Sec-' tion 2 (6) and (7) of the Act. On April 13, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to National Labor Relations Board Rules and Regulations-Series 1, as amended, ordered that the cases be consolidated for the purpose of hearing. On May 7, 1938, the Board, by the Regional Director, issued its complaint against 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), (2), and (3) and Section 2 (6) and ' Referred to as Virginia Electric & Power Company in the complaint. VIRGINIA ELECTRIC & POWER COMPANY 913 (7) of the Act. Copies of the complaint, accompanied by notice of hearing, were duly served upon the respondent, the I. B. E. W., the Amalgamated, the T. W. U.,2 and Independent Organization of Employees of Virginia Electric and Power Company, a labor organi- zation, herein called the I. O. E. Concerning the unfair labor practices the complaint alleged in .substance that (1) since about May 1, 1937, the respondent dominated and interfered with the I. O. E. and contributed support to it; (2) that the respondent on or about November 15, 1937, discouraged mem- bership in the I. B. E. W. by terminating the employment of A. F. Staunton 8 and thereafter refusing to reinstate him because of his refusal to join the I. O. E. and because of his affiliation with the 1. B. E. W.; on or about April 20, 1938, discouraged membership in the I. B. E. W. by terminating the employment of T. N. Harrell, Jr., and J. L. Judge,4 and refusing to reinstate them because of their membership in the I. B. E. W. and because they had engaged in con- certed activities with other employees ; and that on or about May 30, 1937, the respondent discouraged membership in the T. W. U. by terminating the employment of Everard M. Mann and refusing to reinstate him because of his membership in the T. W. U. and his concerted activities with other employees; (3) that the respondent on or about August 5, 1937, entered into an agreement with the I. O. E. providing, inter alia, that membership in said organization should be .a condition of employment with the respondent and that said agree- ment was entered into with a labor organization which had been established, maintained, and assisted by unfair labor practices and which was not the representative of the respondent's employees as provided in Section 9 (a) of the Act; and (4) that the respondent interfered with, restrained, and coerced its employees in the exercise .of their rights guaranteed by Section 7 of the Act by making state- ments hostile and tending to discourage membership of its employees in the T. W. U., the I. B. E. W., and the Amalgamated; by maintain- ing surveillance over the efforts of its employees to form a labor organ- ization, and by employing the service of detective agencies to render reports on the organizational activities of its employees. On May 12, 1938, the I. O. E. filed a motion for intervention stating that it had entered into an agreement with the respondent on August 5, 1937, by which the respondent recognized it as the exclusive bar- gaining representative of all of the respondent's employees with a few exceptions and denying that the respondent had dominated, supported, 2 The complaint and notice of hearing which were sent to Mont Crum, the person filing the amended charges for the T. W. U., were returned to the Board. The T. W. U. did not appear at the hearing nor participate in the proceedings. 8 Referred to as Alfred Staunton in the record. 4 Referred to as Johnny L. Judge in the record. 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD or interfered with it. On May 14, 1938, the respondent filed its answer denying that it was engaged in interstate commerce and deny- ing that it had engaged in any of the unfair labor practices alleged in the complaint. Pursuant to the notice, a hearing was held in Norfolk, Virginia, from May 19 to June 18, 1938, before James L. Fort, the Trial Ex- aminer duly designated by the Board. The Board, the respondent, the I. B. E. W., the Amalgamated, and the I. O. E. were represented by counsel and participated in the hearing. The I. O. E. was per- mitted to intervene with respect to the alleged unfair labor practices within the meaning of Section 8 (2) of the Act. Full opportunity to be heard, to examine and cross-examine witnesses, and to produce evidence bearing upon the issues was afforded all parties subject, in the case of the I. O. E., to the limitation noted above. On May 21, 1938, the Amalgamated filed with the Regional Director amended charges alleging that the respondent had further engaged in unfair labor practices within the meaning of Section 8 (1) and (3) of the Act by discouraging membership in the Amalgamated through its discharges of Joseph Bolton on Or about January 15, 1938, and Robert E. Elliott, Jr., on or about November 3, 1937, and its refusals to reinstate them because of their membership in the Amalgamated. On motion of counsel for the Board the complaint was amended at the hearing to incorporate these allegations.' The Trial Examiner granted the motion of counsel for the Board made at the close of its case to conform the pleadings to the proofs. During the course of the.hearing the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On September 13, 1938, the Trial Examiner filed his Intermediate Report, a copy of which was served on all parties, in which he found that the respondent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act and recommended that the respond- ent cease and desist therefrom and take certain affirmative action to remedy the situation resulting from the unfair labor practices. He further recommended that the allegations of the complaint relat- ing to the discharge of Joseph Bolton be dismissed. On September 23, 1938, the I. O. E. filed exceptions to the Inter- mediate Report and on September 26, 1938, the respondent filed exceptions to the Intermediate Report and a motion to dismiss - the complaint. The respondent and the I. O. E. filed briefs in support of their exceptions to the Intermediate Report. "On June 16, 1938, the respondent filed an amended answer denying that it had en• gaged in unfair labor practices by its discharges of Bolton and Elliott. VIRGINIA ELECTRIC & POWER COMPANY 915 Pursuant to notice duly served on all the parties, a hearing was held before the Board in Washington, D. C., on April 11, 1939, for the purpose of oral argument. The respondent, the Amalgamated, the I. B. E. W., and the I. O. E. were represented by counsel and participated in the argument. The Board has considered the excep- tions to the Intermediate Report and the briefs filed in support thereof. and, in so far as the exceptions are inconsistent with the find- ings, conclusions, and order below set forth,.finds them to be without merit. The respondent's notion to dismiss the complaint is hereby denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF TIIE RESPONDENT The respondent, Virginia Electric and Power Company, was in- corporated in Virginia on June 29, 1909, as the Virginia Railway and Power Company. On October 27, 1925, it adopted its present name. The respondent is engaged, among other things, in the business of gen- erating, distributing, and selling electrical energy in eastern Virginia and northeastern North Carolina. The area served comprises ap- proximately 10,000 square miles, has an estimated population of 767,- 000, and includes the cities of Richmond, Norfolk, Portsmouth, .Petersburg, Hopewell, Suffolk, and South Norfolk, Virginia, and the cities of Roanoke Rapids, Weldon, Williamston, and Plymouth, North Carolina. In addition, the respondent furnishes for' resale electrical energy to nine municipal systems serving a population of 26,000. The respondent is also engaged in the business of supplying illuminating gas to consumers situated in Norfolk, South Norfolk, and Norfolk County, Virginia. The respondent likewise operates street railway and bus lines in Richmond and Norfolk, bus lines in Portsmouth and Petersburg, and local interurban bus lines between Richmond and Petersburg. Its principal office is located in Rich- mond, Virginia, and it maintains 14 branch offices in various cities and towns in Virginia and North Carolina. As of December 31, 1937, respondent had a total of 3,437 employees." The respondent maintains four hydroelectric generating plants and three steam-generating plants with a total capacity of approximately 173,000 kilowatt hours, five of which are in Virginia and two in North Carolina, and operates approximately 250 substations. It has transmission line inter-connections with the Virginia Public Service Company at Occoquan, Virginia, and at Roanoke Rapids, North 6In its brief the respondent asserts that on April 30 , 1938, it had 1,169 employees in the electric department, 112 in the gas department , and 1,259 in the transportation department. 916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Carolina, and two transmission line inter-connections with the Caro- lina Power and Light Company in North Carolina. During the year 1937 the respondent purchased from the above-named com- panies 7.1 per cent of its own total electric output. During 1937 the electric energy generated and purchased by the respondent aggregated ,664,859,694 kilowatt hours, of which the respondent transmitted about 52,000,000 kilowatt hours from Virginia to North Carolina and ap- proximately 39,000,000 kilowatt hours from North Carolina to Vir- ginia. Among the consumers of the power generated and purchased by the respondent are railroads, telegraph companies, telephone com- panies, newspapers, radio stations, shipyards, airports, and agencies furnishing aid to navigation. In addition to operating a street railway and bus system in Rich- mond and Norfolk, bus service in Portsmouth and Petersburg, and .a local interurban bus service between Richmond and Petersburg, the respondent maintains in Virginia shops, garages, and car barns for the storing, overhauling, and repairing of its street cars and motor busses. The transportation system of the respondent as of December 31, 1937, included approximately 133 miles of equivalent :single track, 251 passenger street cars, and 294 busses. In 1937, the respondent's transportation department used 31,253,514 kilowatt hours of power generated by the electrical department. As of December 31, 1937, the respondent maintained in Norfolk, Virginia, two gas-generating units of approximately equal. size with a total rated generator capacity of 81/2 million cubic feet per day, a holder capacity of 5,273,000 cubic feet, and 332 miles of high- and low-pressure gas mains. During 1937 approximately 1,253,000 kilo- watt hours of power generated by the electrical department were used in the manufacture of gas. For the operation. of its electrical, transportation, and gas systems in 1937, the respondent purchased considerable amounts of materials coming from without the State of Virginia. For the generation of ,electrical energy 295,207 tons of coal were used, more, than 50 per cent .of which were purchased in West Virginia. About 2,587,000 gallons of gasoline, consumed by the busses of the respondent, were bought in the State of Virginia but originated in sources outside the State. The busses, street cars, and tires used by the respondent were also bought in :States other than Virginia. To produce the gas distributed- by it the .respondent consumed 10,821 tons of coal, most of which were pur- chased in West Virginia; 3,800 tons of coke, which were shipped to the respondent through West Virginia although purchased in Virginia, :and 3,290,000 gallons of oil purchased in Virginia but originating in .States other than Virginia. The respondent concedes in its brief that the employees engaged in the transmission process of the electrical department are engaged in VIRGINIA ELECTRIC & POWER COMPANY 917 interstate commerce, but argues that all its other employees are not sub- ject to the Board's jurisdiction. We find, however, not only (1) that the respondent maintains facilities in North Carolina and in Virginia for the generation and distribution of electrical energy; (2) that large amounts of electrical energy generated by the respondent are trans- mitted across State lines; (3) that the respondent purchases electrical energy which is transmitted to it across State lines; (4) and that in- strumentalities of interstate commerce, such as railroads, telephone, and telegraph companies, use electrical energy supplied by the re- spondent; but also (5) that the respondent receives large quantities of coal, coke, and other commodities in interstate commerce for its transportation and gas departments; and (6) that the respondent is an integrated enterprise with a centralized management and general office force and with some sharing of common facilities by the transporta- tion and electrical departments. We conclude that a cessation of the respondent's business resulting from a labor dispute between the re- spondent and its employees (a) would affect the flow of large quan- tities of electrical energy and other commodities received and dis- tributed by the respondent in interstate commerce and (b) would tend to burden and obstruct the operation of various instrumentalities of interstate transportation and communication.' II. THE ORGANIZATIONS INVOLVED Transport Workers Union of America is a labor organization affili- ated with the Committee for Industrial Organization,' admitting to its membership employees engaged in the transportation operations of the respondent. Amalgamated Association of Street, Electrical Railway, and Motor Coach Employees of America is a labor organization affiliated with the American Federation of Labor. It admits to membership all the employees engaged in the respondent's electrical railway and bus sys- tem, excluding supervisory, office, and clerical employees. International Brotherhood of Electrical Workers is a labor organi- zation affiliated with the American Federation of Labor. It admits to membership all types of electrical workers of the respondent. Independent Organization of Employees of Virginia Electric and Power Company, an unaffiliated labor organization, admits to mem- 4 See Consolidated Edison Company, et al. v. National Labor Relations Board et al., 305 U. S. 197 , mod'g in part and aff'g as mod'd 95 F. ( 2d) 390 (C. C. A. 2), aff'g Matter of Consolidated Edison Company of New York, Inc., et al. and United Electrical and Radio Workers of America, affiliated with the Committee for Industrial Organization, 4 N. L. It . B. 71; Appalachian Electric Power Co. v . National Labor Relations Board, 93 F. (2d ) 985 (C. C. A. 4), rev'g on other grounds , Matter of Appalachian Electric Power Company and International Brotherhood of Electrical Workers, Local Union No. 906, et at., 3 N. L. It . B. 240. 8 Now the Congress of Industrial Organizations. 283031-41-vol. 20-59 918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD bership all employees of the respondent excluding supervisory, part- time, and confidential employees. III. THE UNFAIR LABOR PRACTICES A. Background The record affords only a fragmentary history of the. respondent's labor relations prior to the effective date of the Act. In January 1922, the Amalgamated called a strike among the street railway operators in Norfolk, Richmond, Portsmouth, and Petersburg, upon the refusal of the respondent to renew the terms of an agreement between the Amalgamated and the respondent. The strike was unsuccessful. Shortly after the enactment of the National Industrial Recovery Act,9 Jack Holtzclaw, president of the respondent, in a speech to its employees, after quoting Donald Richberg and Hugh Johnson to the effect that the N. I. R. A. did not compel unionization, stated : "It would be very foolish and utterly inconsistent for the best policy of our company's operations if I did not say that it is our belief that organiza- tion of our employees for any purpose ... in this company is entirely unnecessary." The Amalgamated again attempted to organize the employees in 1933 and 1934 but did not meet with much success. In March 1937, one Parker, an A. F. of L. organizer, requested an interview with L. E. Davis, the chief engineer of the Reeves Avenue plant in Norfolk, to discuss the matter of organizing the men. Although such an interview was held, it does not appear that Parker ever made any efforts to organize the employees. Walter Holzbach, a clerical employee in the Richmond division, testified that an A. F. of L. organizer was dis- tributing circulars in Richmond either in March or April 1937. The T. W. U. began to organize the Norfolk transportation employees in May 1937. The I. B. E. W. appeared in the Norfolk electrical division in June 1937 and received its charter on August 4, 1937. Organiza- tional activity on behalf of the Amalgamated was resumed among the Norfolk transportation employees late in 1937. B. Interference, restraint, and coercion According to his own admission, E. L. Bishop, the superintendent of the Norfolk transportation division, questioned about. 15 of the respondent's employees in 1936 concerning their knowledge of organi- zational activity among them. Three employees testified that William Edwards, an inspector in the Norfolk transportation division who performed supervisory func- tions, kept under surveillance several meetings of the T. W. U. at- 949 Stat. 195 (1933). VIRGINIA ELECTRIC & POWER COMPANY 919 tended by Norfolk transportation employees in June 1937 by standing across the street from the entrance of the meeting place and observing those who entered. Jesse Smith, an employee in the Norfolk trans- portation division, testified that Edwards warned him around this time that the employees would keep "messing around" with the C. I. O. until they lost their jobs. Raymond Hopkins, another Norfolk trans- portation employee, testified that Edwards made a similar statement to him. Edwards denied that he had engaged in surveillance or had made the statements attributed to him by Smith and Hopkins. On the, entire record, however, we find that Edwards engaged in the actions attributed to him 10 The respondent contended that on several occasions in May 1937 Holtzclaw and other executives warned its supervisory employees not to interfere with the employees' efforts to form or join labor organi- zations and that any violation of such instructions cannot be charged to the respondent. We are of the opinion, however, that under the doctrine of respondent superior the respondent must assume responsi- bility for the action of Edwards 11 as well as for the interrogation earlier engaged in by Bishop. We find that by the foregoing acts of Bishop and Edwards the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act., C. Further interference, restraint, and coercion; domination of the I. O. E. 1. The April 26 bulletin On April 26,1937, two weeks after the Supreme Court of the United States had upheld the constitutionality of the Act,12 the respondent' posted the following bulletin throughout its operations : to The respondent also used, until his death in 1937, the services of one Walters, an employee of the Railway and Audit Inspection Company, who prior to the effective date of the Act admittedly furnished a report on the labor activity of the employees to the respondent. 11 See National Labor Relations Board v. A. S. Abell Company, 97 F. (2d) 951 (C. C. A. 4), mod'g and aff'g Matter of The A. S. Abell Company, a corporation and International Printing and Pressmen's Union, Baltimore Branch, Baltimore Web Pressmen's Union, No. 31, 5 N. L. R. B. 644; Swift & Company v. National Labor Relations Board, 106 F. (2d) 87 (C. C. A. 10), mod'g and aff'g Matter of Swift & Company, a corporation and Amalgamated Meat Cutters and Butcher Workmen of North America,, Local No. 641, and United Packing House Workers Local Industrial Union. No. 900, 7 N. L. R. B. 269; and International Association of Machinists v. National Labor Relations Board, 110 F. (2d) 29 (C. A. D. C.), aff'g Matter of The Serrick Corporation and International Union, United Auto- mobile Workers of America, Local No. 459, 8 N. L. R. B. 621. '' National Labor Relations Board v. Jones & Laughlin Steel Corp., 301 U. S. 1, rev'g 83 F. (2d ) 998 (C. C. A. 5), and aff'g Matter of Jones & Laughlin Steel Corporation and, Amalgamated Association of Iron, Steel & Tin Workers of North America, Beaver Valley Lodge No. 200, 1 N. L. R. B . 503, and companion cases. 920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "To Employees of the Company: "As a result of recent national labor organization activities and the interpretation of the Wagner Labor Act by the Supreme Court, employees of companies such as ours may be approached in the near future by representatives of one or more such labor organizations to solicit their membership . Such campaigns are now being pressed in various industries and in different parts of the country and strikes and unrest have developed in many locali- ties. For the last fifteen years this Company and its employees have enjoyed a happy relationship of mutual confidence and understanding with each other, and during this period there has not been any labor organization among our employees in any department, so far as the management is aware. Under these circumstances, we feel that our employees are entitled to know certain facts and have a statement as to the Company 's attitude with reference to this matter. "The Company recognizes the right of every employee to join any union that he may wish to join, and such membership will not affect his position with the Company . On the other hand, we feel that it should be made equally clear to each employee that it is not at all necessary for him to join any labor organiza- tion despite anything he may be told to the contrary . Certainly, there is no law which requires or is intended to compel you to pay dues to, or to join any organization. "This Company has always dealt with its employees in full rec- ognition of the right of every individual employee, or group of em- ployees, to deal directly with the Company with respect to matters affecting their interests. If any of you, individually or as it group, at any time , have any matter which you wish to discuss with us, any officer or department head will be glad, as they always have been, to meet with you and discuss them frankly and fully. It is our earnest desire to straighten out in a friendly manner, as we have done in the past , whatever questions you may have in mind. It is reasonable to believe that our interests are mutual and can best be promoted through confidence and cooperation. (Signed ) J. G. HOLTZCLAW, President." The respondent's officials explain the posting of this bulletin as follows: They feared that newspaper publicity concerning labor ac- tivity in the vicinity of the respondent 's operations and throughout the United States might have created the impression among the re- spondent's employees that they had to join a union , and they desired to dispel any such impression . It appears, however, that the bulletin VIRGINIA ELECTRIC & POWER COMPANY 921 was posted, not in response to any inquiry addressed to the respondent by its employees, but on the initiative of the respondent alone. On its face the bulletin reveals a marked bias against what it calls "national" labor organizations. It warns that the employees "may be approached" by representatives of such "national" organizations, im- plies that "strikes and unrest" are caused by the campaigns of such organizations, and stresses the "happy relationship of mutual confi- dence and understanding" which characterized the 15 years since its defeat of the Amalgamated in 1922. After brief lip-service to the rights guaranteed by the Act, it emphasizes the negative "right" of its employees to refrain from the exercise of those rights. We interpret the bulletin as an appeal to the employees to bargain with the respondent directly, without the intervention of any "out- side" union . We find that by posting the bulletin the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act."' 2. The May 24 meetings In the ensuing few weeks several groups of the respondent's em- ployees responded to the bulletin of April 26 by submitting demands for increased wages and improved working conditiolis.14 The re- spondent decided that before acting on these demands it would have a -high-ranking official address representatives of all the employees. Employees throughout the system were accordingly instructed by their supervisors to select representatives to attend meetings at which a respondent's official would speak. The employees complied. On the evening of May 24, two meetings of the elected delegates took place, one at Richmond and the other at Norfolk. At Richmond, Holtzclaw, and at Norfolk, R. J. Throckmorton, vice president of the respondent's Norfolk operations, delivered the following address : "A substantial number of its employees representing various departments and various occupations have approached the Com- pany with the request that the Company consider with them the matter of their working conditions and wages. In other words, they have requested collective bargaining. The Com- pany's position with respect to this was recently stated in a posted bulletin. Is See Matter of Goshen Rubber and Manufacturing Company and United Rubber Workers of America, Local #124, 11 N. L. R. B. 1346, enf'd as mod., National Labor Relations Board v. Goshen Rubber and Manufacturing Company, 110 F. (2d) 432, 1940 (C. C. A. 7) ; and Matter of The Midland Steel Products Company and United Auto- mobile Workers of America, 11 N. L. R. B. 1214, petition to review filed May 26, 1939 (C. C. A. 6). 14 At oral argument before the Board , counsel for the respondent asserted that the demands were in response to the bulletin. 922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "In a Company such as ours, if an individual operator for example should ask for himself better working conditions or wages, this Company could not comply with his request without also making the same concessions to other -similar operators. In such a case the operator who appealed individually would, as a practical matter, be bargaining collectively for all of his group, which is not the logical procedure. "This Company is willing to consider the requests mentioned above but feels that in fairness to all of its employees and to itself, it should at the same time consider other groups who have not yet come to it. If the approaching negotiations are to be intelligent and fair to all properly concerned, they should be conducted in an orderly way and all interested groups should be represented in these discussions by representatives of their own choosing as provided in 'the Wagner National Labor Rela- tions Act, which provides as follows : " `SEcrioN 7. Employees shall have the right to self-organi- zation, to form, join or assist labor organizations, to bargain collectively through representatives of their own " choosing, and to engage in concerted activities, for the purpose of collective bargaining or other mutual aid or protection.' "The Wagner Act applies only to employees whose work is in or directly affects interstate commerce and to companies en- gaged in interstate commerce. Counsel for this Company advise us that in their opinion the provisions of the Act do not apply to local transportation employees, to gas employees in Norfolk, or to certain strictly local employees of the light and power department. In spite of this, the Company wants to make it perfectly clear that its policy is one of willingness to bargain with its employees in any manner satisfactory to the majority of its employees and that no employee will be discriminated against because of any labor affiliations he desires to make. "The. petitions and representations already received indicate a desire on the part of these employees at least to do their own bargaining, and we are taking this means of letting you know our willingness to proceed with such bargaining in an orderly manner. In order to progress, it would seem that the first step necessary to be taken by you is the formation of a bargaining agency and the selection of authorized representatives to conduct this bargaining in such an orderly manner. "The Wagner Labor Act prohibits a company from 'domi- nating or interfering with the formation or administration of any labor organization or contributing financial or other support to it., VIRGINIA ELECTRIC & POWER COMPANY 923 "In view of your requests to bargain directly with the Coin- pany and in view of your right to self-organization as provided in the law, it will facilitate negotiations if you will proceed to set up your organization, select your own officers and supervisors, adopt your own bylaws and rules, and select your representatives to meet with the company officials whenever you desire." 'Holtzclaw added, at the conclusion of the quoted speech, that any wage increase granted by the respondent would become effective as of June 1, 1937; Throckmorton did not. As to all other material incidents the two meetings were substantially identical. Employees asking whether they had to join a labor organization and what kind of organization they should form were told they need join none and were refused advice as to the type of organization they should adopt. At the close of the respondent's direct participation in the meetings the delegates were told they might, if they wished, remain and discuss the matter further. At both meetings, a substantial number of the delegates remained, decided to report the speech to their fellow=employees, and agreed to meet for further discussion on June 1. By the speech delivered at the May 24 meetings the respondent gave the initial impetus to the formation of a system-wide labor organization. The speech referred to the bulletin posted April 26, thereby reemphasizing the respondent's distaste for "outside" organi- zations. It expressed the respondent's belief that most of its opera- tions were exempt from the application of the Act, thus implying that self-organization of the employees engaged in such operations was in any event subject to the respondent's sufferance. It neverthe- less urged. the necessity of organization. Finally, after it had already quoted the provision of the Act forbidding employer-domination of labor organizations, and although there was then in existence no labor organization involving the respondent's participation with which-contrast could have been intended, it suggested that the em- ployees select their "own" officers and adopt their "own" bylaws and rules. But the mechanics of the meetings of May 24, no less than the speech itself, assured the formation of an "inside" union. The dele- gates present had been selected, at the respondent's command, to attend and to listen. None had been empowered by their constituents to act. After imbuing- them with its desire that the employees organize, the respondent "permitted"' them to remain and discuss the matter. The respondent's actions converted the delegates, isolated from their constituents and under the immediate influence of the officials, into virtual representatives of the employer among the em- ployees who had elected them: The respondent argues that the 924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD refusal of its officials to indicate what kind of an organization the employees should form is proof of its impartiality in that respect. In its context, however, the refusal convinces us only that the respond- ent did not care what kind of unaffidiated.organization the employees might adopt. We find that at the May 24 meetings the respondent urged its employees to organize and to do so independently of "out- side" assistance, and that it thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 3. Organization of the I. O. E. At the time of the events under discussion there had been little. self-organization among the respondent's employees." The technique employed by the respondent for stimulating the organization of an "inside" union was highly successful.16 Within the week ensuing the May 24 gatherings, meetings of employees were held in all the depart- ments, frequently with the cooperation of supervisory employees- The speech was there reported to the employees who immediately voted to form an independent organization and elected 'representa-- tives for that purpose. The elected representatives, constituting- themselves steering committees at Richmond and at Norfolk, -met upon the respondent's premises in those cities on June 1." On June- 3, representatives from Richmond and Norfolk attended a meeting at. Petersburg, where a committee of three was appointed to employ a lawyer for the purpose of drawing up a constitution and bylaws for an independent system-wide organization. On June 5 Eugene- Underwood, a member of the Richmond steering committee, engaged W. Earl White for this purpose. Thereafter further meetings were held by the steering committees in Richmond on June 9 and in Norfolk on June 7 and 11 for the purpose of discussing and suggesting changes in the constitution and bylaws drafted by White. On June 15 the Norfolk and Richmond representatives met in the American Legion Hall in Richmond and adopted the constitution and bylaws. The I. O. E. thereupon came into existence. The constitution of the I. O. E. provided for 4 11 See section III A, supra. 16 At oral argument before the Board, counsel for the respondent in effect admitted that the speech of May 24 gave impetus to the formation of the I. O. E. 11 Unless otherwise stated, all the meetings of the, Richmond and Norfolk steering com- mittees prior to June 15 , 1937, were held on the premises of the respondent . During the preliminary stages the members of the steering committees used the telephone facili- ties and the bulletin boards of the respondent freely . In this connection the attitude of the respondent towards the activities of outside organizations should be noted. When an A. F. of L. organizer sought to solicit the respondent's employees in 1933, he was informed by Holtzclaw that he could not engage in any activity on the respondent's premises and in- March 1937 Holtzclaw told L. E. _ Davis to instruct Parker. ' that : he could not organize on the respondent's premises. VIRGINIA ELECTRIC & POWER COMPANY 925 divisions and 27 voting sections among the respondent's employees. In the Norfolk division of the i espondent, employees in 14 voting sections elected representatives to the 4 divisional committees, such representatives constituting the Norfolk inter-departmental com- mittee. The employees in the 13 voting sections of the Richmond division of the respondent selected representatives to 3 of the 4 divisional committees, who constituted the Richmond inter-depart- Iimlental committee. The divisional and inter-departmental commit- tees elected from their own number representatives to the general committee, the supreme body of the I. O. E. On June 17 application cards for the I. O. E. were distributed throughout the entire system, many of which were signed on the respondent's premises during working hours. Within a period of ap- proximately 3 weeks from the time the I. O. E. cards were first circulated about 2,000 signatures were obtained. On June 22 a general meeting of the Norfolk employees for the purpose of explaining the constitution and bylaws of the I. O. E. took place. On July 2 elections were held to nominate representa- tives to the various committees of the I. O. E., and on July 12 the elections of such officials took place. On July 13 the Norfolk steer- ing committee announced the representatives of the voting sections of the I. O. E. who had been elected and then dissolved. The voting section representatives then voted for officers to the inter-departmental committees and a delegate-at-large to the general committee. A meeting was held in Richmond on July 16 at which the Richmond steering committee was dissolved and the officers of the inter-depart- mental committee and representative to the general committee were elected. Of the 29 representatives elected to the inter-departmental committees of the I. O. E. approximately 20 had been present at a reading of the May 24 address. On July 17 and 18, 1937, the various inter-departmental and general committeemen of the I. O. E. drafted a contract to be submitted to the respondent.' On July 19 the I. O. E. notified the respondent that it represented more than 50 per cent of the respondent's employees, submitted a proposed contract, and requested that a date be set for its discussion. Negotiations on the contract between the representatives of the I. O. E. and the officials of the respondent began on July 30. By midnight of July 31, the officials of the respondent and the I. O. E. had agreed on all of the provisions of the contract, with the exception of the incorporation of a closed-shop provision and the amount of the wage increases. Thereupon, the respondent agreed to grant the I. O. E. a closed-shop provision 1B and the I. O. E. accepted a smaller 19 This provision stated in effect that all employees of the respondent must join the I. O. E. within a 90-day period from the signing of the contract. 926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD increase in wages than it had originally demanded. On the follow- ing day the parties drafted the wording of the contract and, after, its ratification by the inter-departmental committees of the I. O. E.,. signed it on August 5, 1937.19 On August 20, 1937, the respondent paid the I. O. E. $3,784.501 as dues, pursuant to the check-off provision in the contract, although. it had not yet deducted that entire amount from the wages of the- employees. On October 28 the respondent posted a notice through--. out its entire system, stating that the 90-day period provided for- in the contract would expire on November 4, 1937, and that it was^ necessary for all of its employees to join the I. O. E. by that date.- 4. Conclusions regarding the I. O. E. We are of the opinion and we find that the I. O. E. owes its exist- ence and its form to activities of the respondent. The May 24 meet- ings and the address there delivered by Holtzclaw and Throckmorton provided the initial impetus for subsequent organization. Within a week meetings were held in practically all of the departments of the respondent's system, at which the employees, pursuant to the sugges- tions contained in the addresses of May 24, voted to form an inde- pendent organization and elected representatives for that purpose. Thereafter, meetings of the steering committees were held on the premises of the respondent for the purpose of forming • an inde- pendent system-wide labor organization. Bulletin boards of the re- spondent were used for the posting -of notices of meetings, and telephone connections of the respondent were used by the representa- tives to communicate with each other. Within approximately three weeks after the addresses, the constitution and bylaws of the I. O. E. had been adopted and the organization set up. Within a period of approximately three weeks from the time the I. O: E. cards were first circulated in the plant of the respondent a majority of the employees had signed as a result of the widespread solicitation on the premises of the respondent throughout the entire system. The respondent argues that it had no knowledge that the meetings of the committees were being held on its premises, and that its execu- tives did not give their consent to the use of its buildings and tele- 19 The contract , effective as of June 1, 1937, provided for a wage increase to the em- ployees, overtime payments , a check-off of dues, a board of arbitration to adjust griev- ances, and permitted the I . O. E. to erect bulletin boards on the respondent 's property. The contract was to last for 1 year and thereafter from year to year, unless terminated by either party by 30 days' notice before the end of any annual period . On April 28, 1938, a conference was held by representatives of the I. O. E. and the respondent con- cerning prospective changes in the contract . A copy of the complaint in the instant proceedings was served on the parties on May 9, 1938. It was thereafter agreed that if neither party gave notice of intention to terminate the contract by May 26, 1938, the contract would continue unchanged . The contract was automatically renewed for Q second year when neither party gave such notice. VIRGINIA ELECTRIC' cC POWER COMPANY 927 phone facilities for this purpose. However, because of the large number of meetings, accounts of which appeared in the local news- papers, we are of the opinon that the respondent was aware that they were taking place and gave -tacit, if not express, consent to the use of its premises. The respondent further argues that only the preliminary meetings of the committees were held on the respondent's premises , that the 1. 0. E. did not come into existence until June 15, 1937, when its constitution and bylaws were adopted , and that meetings were not held on the premises of the respondent subsequent to that date. An examination of the development of the I. 0. E. shows , however, that there was a continuity in the personnel of that organization , begin-. ning with the selection of the representatives to attend the May 24 meetings and continuing to the elections of the officials of the I. 0. E. The steering committees performed the basic work of drafting and approving the constitution and bylaws of the organization and con- ducting the elections. It was not until the officers of the I. 0. E. were installed that the steering committees were dissolved . There-. after, at the meetings of the I. 0. E. held on July 17 and 18 that organization ratified the acts and assumed all of the assets, debts, and obligations incurred by the steering committees. The respondent also contends that the negotiations between the respondent and the I. 0. E. concerning the terms of the contract were carried on at arm's length, and in support of this contention points to the increase won by the employees. It may be recalled, in this connection, that at the May 24 meeting in Richmond , Holtzclaw in-. dicated that a wage increase might be granted . It may well be that the respondent intended to increase wages in any event. In the light of the entire record the outcome of the negotiations does not alter our conviction that the I. 0. E. was employer-dominated. We find that the respondent has dominated and interfered with the formation and administration of the I. 0. E. and has contributed support to it ; that it has thereby interfered with , restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. D. The discharges Josep/ Bolton was employed by the respondent in September 1926 as a bus operator in the Norfolk division. He was discharged .on January 13, 1938. In his Intermediate Report the Trial Examiner found that the respondent's discharge of Bolton was not discrimina- tory and recommended that the complaint as to him be dismissed. We agree with the Trial Examiner's finding. The Amalgamated, which had filed the charges-as to Bolton, filed no exceptions to the 928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Intermediate Report. We shall accordingly dismiss the complaint in so far as it alleges that by discharging Bolton the respondent dis- criminated in regard to his hire and tenure of employment. Everard M. Mann was employed by the respondent as a street-car operator in Norfolk on July 29, 1936. On November 8, 1936, his wages were increased from 43 to 46 cents an hour. At a -meeting of Norfolk transportation employees held on the respondent's premises on May 11, 1937, for the purpose of discussing proposed changes in their working conditions, Mann protested vigorously . against the for- mation of an inside union, advocated that the employees affiliate with either the T. W. U. or the Amalgamated, and stated that he preferred the T. W. U., which he joined shortly after the meeting. There- after, he vigorously urged his fellow employees to organize a union having national affiliation. On May 27, 1937, Mann, who had spoken to Bishop a few days previous with reference to obtaining a loan of $50 from the respondent to bring a sick sister to Virginia from Pennsylvania, walked into the dispatcher's office and asked the employees present, "Has anybody seen this guy Bishop ?" Bishop, who was present in the office reading a newspaper, lowered it, and the dispatcher said, "Why, there is Mr. Bishop." Mann looked at Bishop but said nothing and walked out. On June 1, 1937, Bishop discharged Mann on the ground that . the latter had been disrespectful to him. Bishop stated at the hearing that by referring to him as "this guy Bishop" in his presence, Mann did not exhibit the respect necessary to maintain discipline among the employees, and that Mann's failure to apologize to him induced him to discharge Mann, after he had discussed the incident with Throckmorton. Bishop also stated that Mann had had a number of accidents, which, although not the cause of his discharge, nevertheless militated against Bishop's overlooking this "offense.720 We are of the opinion that Mann was discharged because of his union activities and not because of the incident relied upon by Bishop. As stated above, Mann was one of the first employees to take a firm stand against the formation of an inside organization and to advocate the formation of an outside union. We believe that his discharge, about two weeks after the meeting, was intended as a warning to the other employees who might also desire the formation of an outside union. Moreover, it is clear that Mann did not intend any affront to 25 An examination of the employment record of Mann, shows that all of such accidents were minor affairs and caused little expense to the respondent , with the exception of those which occurred on September 21 and 23, 1936 . The first cost the respondent $314 and the other $65. Mann stated that the accident of September 21, 1936, occurred when an aged lady injured herself when alighting from the rear door of a one -man street car. The accident of September 23, 1936, appears to be of a similar nature. Mann was not warned by Bishop when the accidents occurred. VIRGINIA ELECTRIC & POWER COMPANY 929 Bishop when he inquired as to the whereabouts of "this guy Bishop," because the very question reveals that he was unaware of Bishop's presence. We believe that the respondent seized upon the incident as a pretext to get rid of Mann. Although Bishop stated that he had no knowledge of Mann's union activity, Warren Bishop, his son, was present throughout the May 11 meeting. Bishop denied that he had ever obtained any information regarding the labor activities of the employees from his son, or that he had discharged Mann for his union activity, but offered no explanation why Warren Bishop, who was not an employee of the respondent, was present at the meeting. In view of his admission that in 1936 he questioned about 15 em- ployees concerning their union activity, we do not find his denials convincing. We find that, by discharging Everard M. Mann, the respondent discriminated in regard to his hire and tenure of employment, thereby discouraging membership in the T. W. U., and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Mann desires reinstatement with the respondent. At the time of his discharge Mann was receiving $55 every 2 weeks. Since his dis- charge he has earned $195. A. F. Staunton was hired in October 1936 as a first-class lineman in the Norfolk Cove Street department. He was an active member in the I. B. E. W. subsequent to. his joining it in June 1937. On November 4, 1937, William Crafton, superintendent of distribution in Norfolk, told Staunton he would have to join the I. O. E. or quit. Thereupon Staunton left the respondent's employ. The respondent argues that it did not discharge Staunton, but that the latter quit. We have found, however, that the respondent dominated and interfered with the formation and administration of the I. O. E. The respondent's agreement with the I. O. E. was, accordingly, entered into with a labor organization assisted by unfair labor practices. The provision of the agreement requiring member- ship in the I. O. E. as a condition of employment is therefore outside the scope of the proviso in Section 8 (3) of the Act 21 and its applica- tion by the respondent constitutes discrimination in regard to hire and tenure of employment. By requiring Staunton to choose be- 21See Hamilton-Brown Shoe Co. v. National Labor Relations Board, 104 F. (2d) 49 W. C. A. 8), mod'g and aff'g Matter of Hamilton-Brown Shoe Co. a corporation and Local No. 125, United Shoe Workers o f America, affiliated with the Committee for Indus- trial Organization, 9 N. L. R. B. 1073 ; National Labor Relations Board v. National Motor Bearing Co. et al., 105 F. (2d) 652 (C. C. A. 9), mod'g in part , set'g aside in part, en- forcing in part, Matter of National Motor Bearing Company and International Union United Automobile Workers of America, Local No. 76, 5 N. L. R. B. 409; International Association of Machinists v. National Labor Relations Board, 110 F. (2d) 29 (App. D. C.), aff'g Matter of The Serrick Corporation and International Union, United Automobile Workers of America, Local No. 459, 8 N. L. R. B. 621. 930 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD tween joining the I. O. E. and quitting, the respondent imposed a discriminatory and illegal condition to his continued employment. Its action must be viewed as a discharge. We find that on November 4, 1937, the respondent discharged A. F. Staunton because he refused to join the I. O. E., thereby discriminat- ing in regard to hire and tenure of employment, encouraging mem- bership in the I. O. E., discouraging membership in the I. B. E. W., and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. The respondent also argues that after Staunton's employment with the respondent terminated he obtained substantially equivalent em- ployment elsewhere. At the time of his discharge Staunton was receiving $75 every 2 weeks. Subsequent to leaving the respondent, Staunton obtained a job with a construction firm in Pennsylvania at a higher salary than that which he received from the respondent. At the hearing Staunton stated that he desired to be restored to his former position with the respondent. We are of the opinion that Staunton's desire to, be reinstated at the respondent's plant should be given weight in determining whether he has obtained substantially equivalent employment. We find that he has not.22 Robert E. Elliott, Jr., was employed by the respondent as a, motor- coach operator for several months in 1930, 1931, and 1932, and con- tinuously from May 18, 1934, until November 4, 1937. On the latter date the respondent discharged him because he refused to join the I. O. E. Elliott played a prominent part in the organizational activ- ities of the respondent's Norfolk transportation employees during May and June 1937. Largely through his efforts those employees remained apart from the I. O. E. until late in June. In that month, when the employees joined the I. O. E., Elliott became a member of the T. W. U. and its first president. About the middle of July 1937 he joined the Amalgamated. On November 1, 1937, Elliott was involved in an accident in which he sustained injuries. ' He remained away from work until after November 4 on which day the respondent discharged him. Although the respondent does not deny that it discharged Elliott because of his refusal to join the I. O. E., it argues that it would have discharged him in any event because of the accident of Novem- ber 1, which resulted in the loss of $75 in money and passes. Officials of the respondent testified that they had made an investigation of 22 See Matter of Pulaski Veneer Corporation and United Brotherhood of Carpenters and Joiners of America, Local Union #1862, 10 N. L. R. B. 136; Matter of L. C. Smith and Corona Typewriters, Inc. and International Metal Polishers, Buffers and Platers Union of North America, 11 N. L. R. B. 1382; Matter of Eagle-Picker Mining & Smelting Co. a corporation, and Eagle-Picker Lead Company, a corporation and Inter- national Union of Mine, Mill and Smelter Workers, Locals Nos. 15, 17, 107, 108, and 111, 16 N. L. R. B. 727. VIRGINIA ELECTRIC & POWER COMPANY 931 the accident, but were unable to locate any of the persons mentioned in the report, and that it was unusual for a party not to seek remu- neration from the respondent in an accident of this nature. The record reveals, however, that Elliott had been awarded a prize for being the most careful and efficient operator in 1936, and -that although he had been in an accident on April 12, 1937, which -resulted in the loss of approximately $125 in money and passes, the respondent did not withhold any of his money or threaten him with .any disciplinary action on that occasion. Elliott's employment card states as the reason for the discharge his refusal to join the I. O. E., and Raymond Carroll, the manager of the respondent's Norfolk transportation division, admitted on cross-examination that the acci- dent of November 1 had nothing to do with Elliott's discharge. We are of the opinion that the respondent's contention is an after- thought and that it would not have discharged Elliott had he joined the I. O. E. For the reasons stated in the discussion of the case of Staunton, above, the respondent's action in discharging Elliott con- stituted discrimination in regard to his hire and tenure of employment. We find that by discharging Robert E. Elliott, Jr., for refusing to join the I. O. E. the respondent discriminated in regard to his hire and tenure of employment, thereby encouraging membership in the I. O. E., discouraging membership in the T. W. U. and the Amalgamated, and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Elliott desires to be reinstated by the respondent. At the time of his dismissal he was receiving 60 cents an hour from the respond- ent. Subsequent to his discharge he worked as a reporter with the Norfolk "Labor Journal" for several weeks, and then became an organizer for the Amalgamated,' beginning January 1, 1938, at a slightly higher salary than that which he received from the respond- ent. Since this work is entirely different from the work he was performing for the respondent and is only temporary in nature, it is evident and we find that he has not obtained substantially equiva- lent employment. T. N. Harrell, Jr. and J. L. Judge were employed by the respondent in April 1936 as temporary linemen's helpers in the Cove Street divi- sion at Norfolk. Early in 1937 both men received a 5 cents per hour wage increase for good work, and both later shared in the general wage increase resulting from the -respondent's contract with the I. O. E. which raised their wages to 561/2 cents per hour. On Novem- ber 1, 1937, Judge and Harrell were transferred to the respondent's - roll of permanent employees and Judge received another raise in 932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pay of 41/2 cents per hour. The respondent laid off both men on March 31, 1938. The I. B. E. W. began to organize the respondent's employees in June 1937 and Judge and Harrell joined the organization on June 25, 1937. Their activities as advocates of employee self-organ- ization were such as to call them to the attention of the management. Thus, Harrell, shortly after a meeting of employees held in the Cove Street plant in May 1937, told Theodore May, the general foreman of the electrical-distribution department at Norfolk, that he dis- approved of the formation of an inside union (for which purpose the meeting had been called) and intended to join an outside union. May replied that he saw no reason why a man should join an outside union and that he had never seen any good resulting from such an organization. Harrell thereafter became a charter member of the I. B. E. W., solicited membership in that organization, and dis- paraged the I. O. E. among his fellows. Judge, too, was conspicuous in union affairs. In August 1937. he was elected financial secretary and treasurer of the I. B. E. W. On August 16, 1937, Craftoh or- dered Staunton and Judge to remove an I. B. E. W. notice, signed by them, from the respondent's bulletin board.23 In March 1938, just prior to their lay-offs, Judge and Harrell were leaders in an intensive membership drive conducted by the I. B. E. W. The respondent introduced evidence showing that the Cove Street division had been engaged in an extensive rural electrification- pro- gram in Virginia and North Carolina during 1936 and 1937; that around the beginning of March 1938 this work had been practically completed; that it was therefore necessary to reduce the number of employees; and that oil March 31, 1938, the respondent. laid off in the Cove Street division 13 employees, among whom were Judge and Harrell. W. V. Holik, superintendent of light and power in Norfolk and Portsmouth, Crafton, and May, the supervisory officials of the Cove Street division, testified that in determining the em- ployees who should be laid off they took into consideration their experience and ability, their financial status and dependents, and their ability to get along with the other employees. The respondent contends that Harrell was laid off because he was surly and ill-tempered, that he could not get along with his fellow employees, and that he had not progressed as rapidly as the workers whom it retained. However, the record reveals that Harrell's un- popularity with his fellow employees was caused principally by his constant efforts to disparage and discredit the I. O. E. and to promote z, On this occasion Crafton told them that no notices of the I. B. E . W. could be posted until the I . B. E. W. secured a contract with the respondent. Since the agreement of August 5, 1937, permitted the I. O. E. to erect its own bulletin boards this act of Grafton was a denial to the I. B. E. W. of a privilege theretofore granted to the I. O. E. VIRGINIA ELECTRIC & POWER COMPANY 933 the I. B. E. W.; that in the past when friction had arisen among the employees and foremen the respondent had attempted to solve such difficulty by transferring the employees to different crews; that the supervisory officials who laid off Harrell never made any investi- gation of the incidents in which Harrell was involved to determine the extent to which lie was responsible for them; that Harrell's advancement with the respondent was impeded by an injury which he suffered while working for the respondent; that several foremen for whom Harrell worked testified that he carried out their instruc- tions without causing any trouble; that he was a married man with one dependent; and that Harrell had more seniority than five of the eight third-class linemen whom the respondent kept. Upon the entire. record, we are unable to accept the respondent's contention concerning the lay-off of Harrell and are of the opinion that the respondent terminated his employment because of his mem- bership and activity on behalf of the I. B. E. W. We find that the respondent by laying off T. N. Harrell, Jr., dis- criminated in regard to his hire and tenure of employment, thereby discouraging membership in the I. B. E. W., and interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act. Harrell desires reinstatement with the respondent. At the time of his discharge he was receiving 561/2 cents an hour. He has had no earnings since his lay-off. The respondent argues that Judge was laid off because he was the junior second-class lineman. Holik and Crafton testified that in October 1937, after Judge, Ambrose Fowler, his foreman, and William Faust, an official of the I. O. E., asked Holik to give Judge an in- crease in wages, Holik instructed Crafton to raise Judge's .wages by 41/2 cents an hour; that Crafton made out a pay-roll slip providing for the increase, which was sent to the, respondent's Richmond office; that the slip was returned to Norfolk with a notation that since all the third-class linemen were being paid 561/2 cents an hour Judge would have to be made a second-class lineman in order to receive the increase; that Holik then corrected the slip so as to make Judge a second-class lineman; and that the changed status and increase became effective as of November 1, 1937. Holik and Crafton also asserted that the sec- ond-class linemen whom the respondent retained had been with it for a period of three years or longer than Judge. The record reveals that Judge, the only second-class lineman in the Norfolk electrical division to be laid off, was a competent, conscientious, and satisfactory employee whose advancement had been very rapid ; that he was a married man with three dependents; and that he was the last employee to become a second-class lineman. 283031-41-vol. 20-60 '934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Although the respondent had not applied a seniority rule in the past, its application of such a rule in the case of Judge does not, in itself, persuade us that it discriminated against him because of his I. B. E. W. activities. Judge was given a salary increase and a pro- motion some time after he became an officer of the I. B. E. W. We find that the respondent, by laying off J. L. Judge, did not dis- -criminate in regard to his hire and tenure of employment and shall dismiss the allegation of the complaint that it did so. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section_III above, oc- ,curring in connection with the operations of the respondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, commerce, transportation, and communication among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THFrREMEDY Having. found that the respondent has engaged in unfair labor practices, we shall order that it cease and desist therefrom and that it take certain affirmative action which will effectuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the I. 0. E. and has con- •tributed support to it. In order to effectuate the policies of the Act -and free the employees of the respondent from such domination and interference, we shall order the respondent to withdraw all recogni- tion from the I. 0. E. as the representative of any of the respondent's employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, and conditions of employment, and completely to disestablish it as such representative.24 Since the contract between the respondent and the I. 0. E. embodying recognition of the I. 0. E. as such representa- tive was entered into with an organization brought into existence by unfair labor practices of the respondent, we shall order the re- 'spondent to cease and desist from giving effect to the contract hereto- fore described or to any extension, renewal, modification, or supple- ment thereof, or any successor contract with the I. 0. E. which may 24 See Consolidated Edison Co. v. National Labor Relations Board, 305'U. S. 197, 236 11938) National Labor Relations Board V. Pennsylvania Greyhound Lines, 303 U. S. 261 (1938) ; National Labor Relations Board v. Pacific Greyhound, 303 U. S. 272 (1938) , National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Company, .303 Ti. S. 54, decided December 4, 1939. VIRGINIA ELECTRIC' & POWER COMPANY 935 now be in force.25 The contract of August 5, 1937, provided for a check-off and the respondent has deducted from the wages of those employees who were members of the I. 0. E. dues for the I. 0. E. We shall order the respondent to reimburse the employees who were members of the I. 0. E. for the dues and assessments, if any, which the respondent has deducted from their wages on behalf of the 1. 0. E.26 Since we have found that the respondent's discharges of Everard M. Mann, Robert E. Elliott, Jr., and A. F. Staunton, and lay-off of T. N. Harrell, Jr., were unfair labor practices, we shall direct the respondent to reinstate each of them to his former position, without prejudice to his seniority and other rights and privileges. We shall further order the respondent to make whole Malin and Harrell for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings 27 during said period. Al- though finding that the discharges of Elliott and Staunton were vio- lations of Section 8 (1) and (3) of the Act, the Trial Examiner in his Intermediate Report made no recommendation for their reinstate- ment on the ground that they had obtained regular and substantially equivalent employment subsequent to their discharges. As stated above, we do not agree with the Trial Examiner's conclusion that the two men secured regular and substantially equivalent employment. Even if we shared that view, however, we should order, and we shall order, that Elliott and Staunton be reinstated by the respondent with back pay.28 In view of the absence of such a recommendation by the 25 See National Labor Relations Board v . Stackpole Carbon Co., 105 F. (2d) 167 C. C. A. 3 ) mod'g and eiif'g Matter o f Stackpole Carbon Company and United Electrical & Radio Workers of America, Local No. 502, 6 N. L. R. B. 171, cert. den . 308 U. S. 605. See also cases cited in footnote 21, supra. 26 See Matter of The Heller Brothers Company of Newcomerstown and International Brotherhood of Blacksmiths, Drop Forgers and Helpers, 7 N. L. R. B. 646; Matter of Lone Star Bag and Bagging Company and Textile Workers Organizing Committee, 8 N. L. R. B . 244 ; Matter of The Western Union Telegraph Company, a corporation and American Communications Association, 17 N. L. R. B. 34 , petition for review filed November 2, 1939, (C. C. A. 2). 27 By "net earnings" is meant earnings less expenses such as transportation , room, and board incurred by an employee in connection with obtaining work and working elsewhere than for the respondent which would not have been incurred but for his unlawful dis- charge and the consequent necessity of his seeking employment elsewhere . See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received for work performed upon Federal , State, county , municipal , and other work-relief projects are not considered as earnings but as provided below in the Order shall be deducted from the sum due the employee and the amount shall be paid over to the appropriate fiscal agent of the Federal, State , county, municipal , or other government or governments which supplied the funds for said work-relief projects. 2e See Matter of Eagle-Picher Mining & Smelting Company, a Corporation , and Eagle- 'Picher Lead Company, a Corporation and International Union of Mine, Mill & Smelter Workers, Locals Nos. 15, 17, 107, 108, and 111, 16 N. L. R. B . 727, wherein the Board stated: "The respondents contend that only 'employees ' within the meaning of Section 936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Trial Examiner, however, the respondent could not have been expected to offer Elliott and Staunton reinstatement. We shall accordingly direct that the period from the date of the Intermediate Report to the date of this Order be excluded in the computation of the back pay due them.z" Upon the basis of the foregoing findings of fact and upon the en- tire record in the proceeding, the Board makes the following : CoNCLIISIONS OF LAW 1. Transport Workers Union of America, Amalgamated Associa- tion of Street, Electrical Railway, and Motor Coach Employees of America, International Brotherhood of Electrical Workers, and In- dependent Organization of Employees of Virginia Electric and Power Company, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and admin- istration of Independent Organization of Employees of Virginia Electric and Power Company and contributing support to it, the respondent has engaged in and is engaging in unfair labor prac- tices, within the meaning of Section 8 (2) of 'the Act. 3. By discriminating in regard to the hire and tenure of employ- ment of Everard M. Mann, Robert E. Elliott, Jr., A. F. Staunton, and T. N. Harrell, Jr., and thereby discouraging membership in Transport Workers Union of America, Amalgamated Association of Street, Electrical Railway, and Motor Coach Employees of Amer- ica, and International Brotherhood of Electrical Workers, and en- couraging membership in Independent Organization of Employees of Virginia Electric and Power Company, the respondent has en- gaged in and is engaging in unfair labor practices, within the mean- ing of Section 8 (3) of the Act. 4. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 5. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning' of Section 2 (6) and (7) of the Act. 2 (3) fall within the jurisdiction of the Board for purposes of remedial action , and that those who have obtained such regular and substantially equivalent employment are not such employees . While Section 10 (c) provides for reinstatement of 'employees' we do not believe that those claimants who have obtained regular and substantially equivalent employment thereby became remediless , either for the purposes of back pay or for pur- poses of future employment by the respondent." ° Cf. Matter of E. R. Hafpelfin(ier, Inc. and United Wall Paper Crafts of North America, Local No. 6, 1 N. L. R. B. 760; Matter of Kentucky Firebrick Company and United Brick and Clay Workers of America, Local Union No. 510, 3 N. L. R . B. 455, enf'd National Labor Relations Board v. Kentucky Firebrick Co., 99 F. ( 2d) 89 (C. C. A. 6). VIRGINIA ELECTRIC' & POWER COMPANY 937 6. By discharging Joseph Bolton and laying off J. L. Judge, the respondent has not engaged in unfair labor practices, within the meaning 'of Section 8 (3) of the Act. ORDER On 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 respond- ent, Virginia Electric and Power Company, Richmond, Virginia, 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 Independent Organization of Employees of Virginia Elec- tric and Power Company, or the formation or administration of any other labor organization of its employees, or contributing support to Independent Organization of Employees of Virginia Electric and Power Company, or any other labor organization of its employees; (b) In any manner giving effect to its contract heretofore described with Independent Organization of Employees of Virginia Electric and Power Company or to any extension, renewal, modification, or supplement thereof, or to any successor contract with Independent Organization of Employees of Virginia Electric and Power Company which may now be in force; (c) Discouraging membership in Transport Workers Union of America, Amalgamated Association of Street, Electrical Railway, and Motor Coach Employees of America, International Brotherhood of Electrical Workers, or any other labor organization of its em- ployees, or encouraging membership in Independent Organization of Employees of Virginia Electric and Power Company, or any other labor organization of its employees, by discharging, laying off, or refusing to reinstate any of its employees, or in any other manner discriminating in regard to their hire and tenure of employment; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, or to engage in con- certed activities for the purposes of collective bargaining and other mutual aid or protection as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Withdraw all recognition from Independent Organization of Employees of Virginia Electric and Power Company as the rep- 938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD resentative of any of its employees for the purpose of dealing with the respondent concerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of employment and completely disestablish Independent. Organization of Employees of Virginia Electric and Power Company as such representative; (b) Offer to Everard M. Mann, Robert E. Elliott, Jr., A. F. Staunton, and T. N. Harrell, Jr., immediate and full reinstatement to their former positions without prejudice to their seniority and other rights and privileges ; (c) Make whole Everard M. Mann and T. N. Harrell, Jr., and each of them for any loss of pay he may have suffered by reason of the respondent's discrimination against him by payment to each of them of a'sum of money equal to that which he normally would have earned as wages from the date of his discharge or lay-off to the date of the offer of reinstatement, less his net earnings during said period; deducting from the amount otherwise due him monies re- ceived. by him during said period for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay over the amount so deducted to the appropriate fiscal agency of the Fed- eral, State, county, municipal, or other government or governments which supplied the funds for said work-relief projects; (d) Make whole Robert E. Elliott, Jr., and A. F. Staunton, and each of them for any loss of pay he may have suffered by reason of the respondent's discrimination against him, by payment to each of them of a sum of money equal to that which he normally would have earned from the date of his discharge to the date of the Inter- mediate Report and from the date of this Order to the date of the respondent's offer of reinstatement, less his net earnings during said periods; deducting, however, from the amount otherwise due him monies received by him during said periods for work performed upon Federal, State, county, municipal, or other work-relief projects; and pay. over the amount so deducted to the appropriate fiscal agency of the Federal, State, county, municipal, or other government or gov- ernments which supplied the funds for said work-relief projects; (e) Reimburse each of its employees who were members of Inde- pendent Organization of Employees of Virginia Electric and Power Company for all the dues and assessments, if any, which it has deducted from their wages on behalf of Independent Organization of Employees of Virginia Electric and Power Company; (f) Post immediately in conspicuous places throughout the re- spondent's system and maintain for a period of at least sixty (60) consecutive days notices to its employees stating that the respondent will cease and desist as provided in paragraph 1, that it will take the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), VIRGINIA ELECTRIC' & POWER COMPANY 939 and (e) of this Order, that the respondent's employees are free to become or remain members of Transport Workers Union of America, Amalgamated Association of Street, Electrical Railway, and Motor Coach Employees of America, or International Brotherhood of Electrical Workers, and that the respondent will not discriminate against any employee because of membership or activity in such organizations ; (g) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith. IT IS FURTHER ORDERED that the allegations of the complaint with respect to Joseph Bolton and J. L. Judge be, and they hereby are, dismissed. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.