Indiana & Michigan Electric Co.

In the Matter Of INDIANA & MICHIGAN ELECTRIC COMPANY and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL B-9 Case No. C-1335.-Decided February 28,1940 Electrgda7tility Industry=Interference, Restraint and Coercion: surveillance of union meeting place ; coercive interrogation of employees concerning union activities-Company-Dominated Union: domination of, and interference with for- mation and administration role played by supervisory employees therein ; formation and use of, to oppose outside unions ; strategic wage concession ; exclusive representation agreement ; disestablished , as agent for collective bar- gaining ; agreement voided-Discrimination : charges of ; not sustained-Em- ployee Status: management representatives : engineers , foremen, and others as; eligibility of supervisory employees to membership in labor organizations held no defense to management interference therewith. Mr. Stephen M. Reynolds, for the Board. Messrs.,Seebirt; Oare and Deahl, of South Bend, Ind., by Messrs. Eli F. Seebirt Orlo R. Deahl, and James F. Thornburg, for the respondent. Mr. Samuel Guy, of Chicago, Ill., for the Brotherhood. Miss Margaret Holmes, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Brotherhood of Electrical Workers, Local B-9, herein called the Brotherhood, the National Labor Relations Board, herein called the Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois),; issued its complaint and notice of hearing dated November 12, 1938, against Indiana & Michigan Electric Company, South Bend, Indiana, 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), (2), and (3) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. 20 N. L. R. B., No. 94. 989 990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint and accompanying notice of hearing were duly served upon the respondent and the Brotherhood. The complaint alleged in substance: (1) that on or about May 1, 1937, the respondent initiated, 'fostered; and promoted the Michiana Electrical Utility Workers Association, herein called the Association; (2) that from on or about May 1, 1937, until the date of the complaint, the respondent advised, urged, threatened, and coerced its employees to join and pay dues to, in many ways favored members in good standing of, dominated, interfered with, and contributed support to, the Associa- tion.; (3) that from on or about April 1, 1937, until the date of the complaint, the respondent questioned its employees concerning their union affiliations, advised, urged, and warned its employees to re- frain from becoming or remaining members of the Brotherhood, or of any union with outside affiliations; and (4) that on or about December 24, 1937, the respondent discharged Forrest Elkins because he joined and assisted the Brotherhood. On November 16, 1938, the respondent filed with the Regional Director a petition and motion for extension of time in which to answer until November 25, 1938, and for a continuance of the hearing until the early part of December 1938, on the ground that the-re- spondent's vice president was absent from South Bend, Indiana, when the complaint and notice of hearing were served upon the respondent and upon the further ground that the respondent's attorney was ill. On November 18, 1938, the Regional Director granted the requested extension of time in which to answer but denied the petition and motion for continuance of the hearing. On November 23, 1938, the respondent filed an answer to the coin- plaint, denying that it had engaged in or was engaging in the unfair labor practices as alleged and claiming to be without knowledge as to whether it was engaged in commerce within the meaning of the Act. Pursuant to notice, a hearing was held in South Bend, Indiana, on November 28, 29, 30, and December 1, 2, 5, 6, 7, 8, and 9, " 1938, before Tilford E. Dudley, the Trial Examiner duly designated,by the Board. The Board, the respondent, and the Brotherhood were represented and participated in the hearing.'. 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 commencement of the hearing counsel for the Board offered in evidence certain formal papers, including the complaint and a motion by the respondent to make the complaint more specific. The respondent objected to the admission of the complaint on the grounds of insufficiency and renewed its motion to make the complaint more 1' i Although he did not enter his appearance on the record , an attorney for the Asso- ciation was present at the hearing. TNDIANA &' MICHIGAN ELECTRIC COMPANY' 991 specific. The Trail Examiner overruled the respondent's objection to the complaint, denied the respondent's motions to make the com- plaint more specific, and informed the respondent that it could re- quest additional time to prepare its defense at. the conclusion' of the Board's case. No such request was made by the respondent. We hereby affirm the rulings of the Trial Examiner. At the beginning of the hearing, the respondent renewed its motion, previously made to, 'and denied by, the Regional Director, for a continuance of the hearing. The Trial Examiner denied the motion and suggested that the respondent renew the motion later in the hearing if additional time were required. The respondent at no time during the hearing renewed its motion. Although the Regional Director might well have granted the respondent's original motion for a continuance of the hearing, the respondent was not prejudiced by the denial of that motion, since the respondent's vice president and attorney. appeared when the hearing opened, and the Trial Examiner granted the respondent the right to move- for a continuance during the hearing which the respondent 'failed to do. We therefore. affirm the rulings of the Regional Director and, the Trial Examiner. During the hearing counsel 'for the Board moved 'to amend the -complaint to allege, in substance, that on or about February. 5, 1938, the respondent entered into an illegal agreement with the Association for a term ending March 22, 1939. The Trial Examiner granted the motion. The respondent contends 'that the Trial Examiner erred in granting the motion because the Association is not a'party. This argument is without merit .2 The respondent also claims that the amendment was prejudicial on the ground of surprise. The record, however, conclusively shows that there was no surprise. Early in "its presentation of evidence to support the allegations of the com- plaint, counsel for the Board offered in evidence the agreement be- tween the Association and the respondent. This agreement was received in-evidence without objection from the respondent." At the time the Trial Examiner granted the motion to amend the complaint to allege the illegality of the agreement and again at the conclusion -of the hearing, the Trial Examiner granted the respondent the right -to move for a continuance to prepare on this issue. The respondent at no time requested additional 'time for this purpose. Moreover, the original complaint, in alleging' that the'respondent dominated and interfered with the formation and administration of 'the Associa- tion, gave the 'respondent -notice that the validity of its agreement 2 National Labor Relations Board v. Pennsylvania Greyhound Lines, Inc., 303 U. S. 261; National Labor Relations Board v . Stackpole Carbon Company, 105 F.. (2d) 167 (C. C. A. 3), cert. den'd , 308 U. S. 605; National Labor Relations Board v. National Licorice Company. 104 F. (2d) 655 (C. C. A..2), cert. granted, 60 S..Ct. 569. 992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ;with the Association would be challenged.3 We therefore find no merit in the respondent's contention that it was prejudiced by. the -amendment. The Trial Examiner's ruling granting the amendment is hereby affirmed. At the conclusion of the Board's case, and also at the conclusion of the hearing, the respondent moved to dismiss the complaint as a whole, and also made several motions to dismiss particular parts thereof. Some of the motions, including the motion to dismiss.. the entire complaint, were denied at the hearing; the Trial Examiner .reserved rulings on others until the issuance of his Intermediate Report. Various other rulings were made by .the Trial Examiner during the course of the hearing on motions and on objections to :the- admission of evidence. We have reviewed the rulings of the Trial Examiner, including those reserved at the hearing and made in his Intermediate Report, and find that no prejudicial errors were committed. The rulings are hereby affirmed. On July 27, 1939, the Trial Examiner filed an Intermediate. Report, .copies of which were duly served on all parties, finding that the respondent had engaged in and was engaging in unfair labor. prac- tices affecting commerce within the meaning of Section 8 (1) and (2) and Section 2 (6)' and (7) of the Act, and recommendiing "that ,the respondent cease and desist therefrom and reinstate Earl Free- man to his former position with back pay. He granted the respond- ent's motion that the complaint be dismissed in.so far as it alleged .that the respondent had engaged in unfair labor practices concerning Forrest Elkins but denied • the other motions upon which ruling had been reserved. Exceptions to the Intermediate Report, and a brief .in support of such exceptions were thereafter filed with the -Board by the respondent. On November 9, 1939, oral argument was had before the -Board .in Washington, D. C. The respondent and the Brotherhood appeared • and participated in' the argument. At the conclusion of the e rgu-. anent, the Brotherhood filed a document entitled, "Rebuttal to the Respondent's Exceptions to the Intermediate Report and to Other Parts of the Record and Proceedings." On February 19, 1940, the respondent petitioned the Board to -reopen the record to receive certain evidence. We have considered the respondent's petition and find that the matters recited therein .have no relation to the issues in this proceeding. The petition is -hereby denied. - The Board has considered the exceptions and brief filed by the respondent and the document filed by the Brotherhood. There. is a Cf. National Labor Relations Board v. Stackpole Carbon Company , 105 F. (2d) 167 (C. C. A. 3), cert. den'd, 308 U. S. 605; National Labor Relations Board v. National Licorice" Cb?ii aiay,-104 F: (2d) 655 (C. C. A. 2), cert. granted;"60 S. Ct: 569. INDIANA & MICHIGAN ELECTRIC COMPANY 993. no merit in the contention of the respondent, that the Trial Examiner denied it a fair hearing. Except in so far as the respondent's excep tions. are consistent with the findings of fact, conclusions of law, and order set forth below, we find them to be without merit. Upon the entire record in the case, the Board makes the followin FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The respondent, an Indiana corporation with its principal office and place of business in South Bend, Indiana, is a subsidiary of American Gas and Electric Company of New York.4 It is engaged in the generation, transmission, distribution, and sale of electrical energy and, to some extent, in the purchase and sale of electrical appliances, in the States of Indiana and Michigan. In the operation of its electrical system the respondent owns four main hydroelectric-generating stations on the St. Joseph's River;- two of these are located in Indiana and two in Michigan. The re- spondent also owns and operates a small- hydroelectric-generating- station on the Paw Paw River at Hartford, Michigan, and two steam- generating plants in Indiana. The respondent's properties, and the territory in Indiana and Michigan served by the respondent, are connected by distribution lines owned and maintained by the re- spondent. In addition, the respondent's transmission lines are inter- connected for the purpose of exchanging electrical energy with the lines of the Ohio Power Company on the State line between Ohio and Indiana, east of Fort Wayne, Indiana, and with the lines of the Northern Indiana Public Service Company near New Carlisle, In- diana. The respondent furnishes numerous cities, towns, and villages in Indiana and Michigan with electrical energy for light, power, and heat, and supplies electrical energy in Indiana and Michigan to various interstate carriers and manufacturing concerns. The respondent sold approximately 717,709,057 kilowatt hours of electrical energy during the year 1937, approximately 24 per cent of its total operating revenue being derived from business in States other' than Indiana. In 1937 the respondent transferred 8,000,000 kilowatt hours of electrical energy from Indiana to Ohio, and received 396,- 156,712 kilowatt hours in Indiana from Ohio; transferred 68,279,00 kilowatt hours of electrical energy from Indiana to Michigan, and transferred 12,729;020 kilowatt hours from Michigan to Indiana. The electrical appliances sold by respondent, from the sale of which the respondent realized an income of $258,515.12 in 1937, are manufac- tured mainly by the Westinghouse Electric and Manufacturing Com- ' American Gas and Electric Company owns all of the respondent 's common stock. 1994 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pany at its Mansfield , Ohio, and Chicago, Illinois, factories, from whence they are shipped to the respondent. The respondent ,maintains three operating divisions, located at South Bend and Elkhart, 'Indiana, and Benton Harbor, Michigan. Each division has a division superintendent or 'manager who is directly responsible to Thomas F. English, the vice president and general manager of the respondent, whose office is located in South Bend, Indiana. The respondent employs about 1,000 employees in its three operating divisions. At the hearing, 'the respondent agreed that it is engaged in inter- state commerce within the meaning, of the Act. 11. THE ORGANIZATIONS INVOLVED International Brotherhood of. Electrical Workers is a labor organi- zation chartered by the American Federation of Labor. It admits to membership electrical workers throughout the United States Local B-9 of International Brotherhood of Electrical Workers admits to membership employees of the respondent and other clectrical^ 'workers in Indiana and northern Illinois. Michiana Electrical Utility Workers Association is an unaffiliated labor organization. It admits to membership employees of the re- spondent who were born in the United States or who have taken out first citizenship papers, exclusive of department heads and officials or "agents" of the respondent. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion; domination and support of the Association 1. Formation of the Association The Brotherhood undertook to organize the respondent's employees in the fall of 1935. In the spring of 1937 the Committee for Indus- trial Organization gained some membership in the general area of South Bend, Indiana, and its appearance among the respondent's employees augmented the Brotherhood's organizational endeavors. Commencing in April 1937 the Brotherhood put into effect a program of monthly meetings in South Bend, Indiana, and commenced actively soliciting the membership of the respondent's employees. The April 1937 meeting of the Brotherhood, which was held at a place in South Bend, Indiana, known as Falcon's hall, was widely advertised among the respondent's employees. Among those the Brotherhood invited to attend were Earl Livelsberger, the respond- ent's general line. foreman for the South Bend, Indiana, division, and- INDIANNA & IIFCH'IGAN ELECTRIC COMPANY 995 Glenn .Carlton;,his assistant. Neither Livelsberger nor '.,Carlton was present in he hall when the . meeting convened . During the course .of the meeting Samuel Guy, the Brotherhood's business manager, was informed by several of the respondent 's employees that Livelsberger ;and . Qarlon . were siting in a car outside the. meeting hail. - Guy left the hall and invited Livelsberger and Carlton to come to the meeting. Carlton declined , stating that he could find out about the.meetng in the morning. The position of the car- in whch Livelsberger; and Carlton were sitting was such that they could be seen by , and them - :selves observe, the employees who attended the Brotherhood meeting. The fact that Guy's attention was called to the presence .of. LihTels- ber•ger 'and Carlton indicates that the respondent 's,employees were aware of the supervisoy surveillance of their meeting place. More- over, Carlton testified that he saw four of his subordinate employees going into the meetng place and Livelsberger stated that he discovered none of his "associates" in attendance. Thus it is clear from the record tliii Lvelsberger and Carlton took note of the employees who :attended the Brotherhood meeting. Although Livelsberger and Carlton were invited to the meeting and therefore their attendance at the meeting itself would not have discouraged mernbershp in the Brotherhood , it is clear and we find that their stationing themselves outside the meeting place was for the purpose of scrutinizing those who entered and thereby dscouraging employees from attendng such meetings . Since, as pointed out below, Livelsberger and Carlton are supervisory employees whose activities are attributable to the re- spondent, we find that the respondent, through the above-described -conduct of Livelsberger and Carlton , interfered with, restrained, and coerced its employees n the exercise of the rights guaranteed in Section 7 of the Act. Shortly after the April meeting Russel Harter, foreman of a trans- mission crew in the respondent's South Bend, Indiana., district, "kept ''drilling away ".on the men in his crew for the purpose of learning the details of the Brotherhood meetng. Harter testified : I inquired if here wasn't something they had on their minds that wasn't exactly as it should be . .. and one of them mentoned about being uptown to this particular meeting. And I knew , or I had heard in a roundabout way that they had had a meeting up there . . . Well, I asked them if they was to that meeting. They denied even knowing of any meeting. Then I just kept drilling away on that same idea, that they had been to a meeting at Falcon Hall . . . I made believe I knew some- thing that I didn't because I wanted to get the story out of them,' -and they . finally told me that they had been to that nneetin ... I ddn't know that the men had been to that meet 996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing absolutely at all, but -I started questioning them about who was the speaker at the meeting and everything of that kind, till I pinned them down to where they had to admit they was to the meeting . . . I asked how many was to the meeting and asked them the names of different ones that was there .. . As is found hereinafter, Harter is a supervisory employee whose activities are attributable to the respondent. His con ct.,in.._ques tioning the men who work under him concerning their' union activi- ties clearly conveyed to the employees his hostility toward the Brotherhood. . We find that the respondent, through the above-described activi- ties of Harter, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.5 Through Harter's strenuous interrogation of the ' employees, he became cognizant of the nature and extent of the Brotherhood's membership campaign. In the midst of this period of unusual or- ganizational activity among the respondent's employees, Foreman Harter decided to establish a labor organization unaffiliated with either the Brotherhood or the Committee for Industrial Organiza- tion, the unions which were then soliciting the employees. Harter conceived this idea during a conversation with a foreman from Jhe Michigan Bell Telephone Company regarding an employees' asso- .ciation in existence in that company. This conversation occurred in Niles, Michigan, on May 14, 1937, shortly after the Brotherhood's activities were brought to Harter's attention in the. manner described above. Although certain of the individuals summoned by Harter to assist him in his plan, which resulted in the establishment of the Association, contemplated the possibility of obtaining a wage increase through the channels of collective bargaining, the record discloses that the main consideration in the establishment of the Association was the desire to stifle the growth of unions with outside affiliations. As William La Velle, one of the foremen who helped -create the Association, testified at the hearing : The older employees of this company own their own homes. This electric company, the Indiana and Michigan, is home for many of the old employees. We never needed a union at the Indiana and Michigan as long as I have ever been there, up to the last present years-the last 4 or 5 years-when the A. F. of L. and the C. I. O. got so strong and they was going to come in and take our little playhouse, away from us; then we organized the Michiana Electric Workers Association. 5 Matter of The Bosa Manufacturing Company and International Glove Workers' Union of America, Local No. 85, 3 N. L. R. B. 400, enf'd as mod., N. L. R. B. v. The Boas Manu• factoring Company, 107 F. ( 2d) 574 (C. C. A. 7). INDIANA & MICHIGAN- ELECTRIC COMPANY 997 Having decided to form the Association, Harter lost no time in executing his plan. On May 15 Harter discussed his idea with La Velle, a line foreman in the respondent's South Bend, Indiana, district, and La Velle suggested a meeting at his home the following day. On the afternoon of May 15 Harter asked Ernest Clark and Clarence Daniels, who are also line foremen in the South Bend dis- trict, to come to La Velle's home on May 16. On Sunday, May 16, these four- foremen - and Linemen' Leo Ringen and Jack Betley, who also work in the South Bend district, met at La Velle's home. Ringen apparently came to the meeting without an invitation, but Betley had been asked to attend by La Velle.e The main topic of discussion among the group was the membership gains being made by "outside" unions in the vicinity of South Bend, and those present agreed to help carry out Harter's plan to establish a labor organization limited to the respondent's employees. Each person present at La Velle's home contributed $1.00 for the printing of membership cards. La Velle then called on Frank Miles, the respondent's distribution engineer for the South Bend district, and persuaded him to help organize the Association. Together they located a printer who was able to make up 500 cards that afternoon. La Velle, Miles, and the printer prepared the cards, apparently 'choosing the name, "Michiana Electrical Workers Association" which appeared on them. La Velle returned to his home, accom- panied by Miles, where Harter, Clark, Daniels, Bingen, and Betley were waiting. He asked them to return about 5 o'clock to obtain the membership cards, and during the afternoon he requested 15 or 20 additional employees to call for cards and to help in the membership drive. That afternoon Clark invited Assistant General Line Fore- man Carlton, who was already aware of the Brotherhood activity, to aid in the creation of the Association. On Tuesday, May 18, Carlton discussed with F. M. Henderson, the respondent's transmission engineer and supervisor of right-of-way, the desirability of holding an organizational meeting in which repre- sentatives of the various departments of the respondent could par- ticipate. Henderson volunteered his home for the meeting, which was held on Wednesday, May 19, and attended by Henderson, Carl- ° On Saturday afternoon , May 15, Betley showed La Velle a paper he had 'prepared and was circulating among his fellow workers. The paper was entitled "Safe" and read, in part, as follows : we, the older men in the employ of this company, believe that we have men among us that can intelligently arbitrate with the management without resorting to radicalism and dictation of outsiders . Our meeting will be posted in the near future. La Velle told Betley to disregard whatever he had in mind and invited him to the meeting at his home the following day. The name of the Association was later changed to Michiana Electrical Utility Workers Association. 283031-41-vol. 20-64 '998 DECISIONS- OF NATIONAL LABOR RELATIONS BOARD ton, Taylor Edgell, acting general line foreman for the respondent's Michigan Division, Nelson Lambert, a right-of-way man in Hender- ,son's department, Ray Collins, a condenser operator in Twin Branch-, .Michigan, and James Marsh, a Class A operator at the respondent's Elkhart, Indiana, hydroelecric plant. Betley approached ,Edgell -regarding the Association on May 18; and asked him to send a'^Tepie- sentative from the Michigan division to the Henderson meeting on -May 19. At noon on May 19 Edgell summoned about 15 or 20 em- -ployees to the respondent's garage in Benton Harbor, Michigan, and they selected him to act as their representative at the Henderson -meeting. Lambert was invited to the May 19 meeting by Henderson, .under whom he works. Collins was asked to attend as a representa- tive of the Twin Branch employees by Jack Hanley, the watchman and custodian of the Twin Branch plant. Hanley was one of the men La Velle had asked on Sunday, May 16, to call for Association cards and to participate in the membership drive. Marsh was.invited -to the meeting by Carlton. The Henderson group engaged an attorney, laid plans for a mass -meeting of the respondent's employees, and prepared in rough draft a petition for recognition to be presented to the management. The attorney engaged was suggested to the group by Collins, who had been referred to the. attorney by one Duding, the general manager of the Indiana Bell Telephone Company. The mass meeting was -scheduled for the following night, May 20, and the Henderson group selected George S. Holmes, the respondent's safety engineer, to pre- side. The petition drafted at the meeting was taken to the home of the attorney after the group parted and was revised by him.8 At the request of Henderson, Miles arranged for the May 20 mass -meeting to be held in a place known as St. Joseph's auditorium in South Bend. Henderson also provided a stenographer, who attended the meeting and took the minutes. Having discovered that Holmes was out of town, Henderson, Collins, and Carlton asked Lambert to :conduct the meeting and instructed him regarding procedure. Nord of the meeting was spread among the employees by the Henderson .group, and on Thursday evening about 600 employees appeared at 8 This petition, as revised by the attorney and signed at the May 20 meeting by indi- viduals representing the various departments of the respondent , was addressed to English, -the respondent's vice president and general manager , and provided as follows : You are hereby notified that a majority of' the employees ,. of the Indiana & Michigan Electric Company have organized a Union, to be known as the Dlichiana Electrical Utility Workers Association . At an open meeting of said Association held today , the undersigned were duly elected a Committee to petition you and through you the Company for the following purposes. We respectfully ask you, in behalf of the Company to recognize the Michiana Electrical Workers Association as the Sole Bargaining Agent for the employees of said company. INDIANA & MICHIGAN -ELECTRIC COMPANY 999 St. Joseph's auditorium. Lambert opened the meeting by reading excerpts from the Act and taking a standing vote to see how many favored forming an unaffiliated organization. After a majority of those present had indicated their approval, Lambert asked the as- sembly to send a representative from. each of the respondent's de- partments to the.stage to_sign the petition for recognition which had been prepared at Henderson's house. Twenty such representatives came forward, including Henderson, Edgell, and two crew foremen. The precise manner whereby these representatives were chosen is not clear in the record. - Two of them ° had apparently been selected prior to the May .20 meeting; as to some of the others, there is evi- dence that the men from the various departments sat together at the meeting and selected their representatives at the time Lambert called for them. Several persons were nominated to act as temporary ,chairman of the Association. Miles, however, moved that Holmes, who was not present at the meeting, be unanimously chosen chairman and_ his motion .-carried. The meeting adjourned with the under- standing that Holmes would assume the leadership upon his return. to South Bend. The Association membership drive, launched on Sunday, May 16, by the La Velle group, culminated in 690 members by Thursday, May 20. In addition to giving cards to the persons who met at his home on May 16 and to the others he called on Sunday afternoon, La Velle mailed cards to numerous unknown persons for distribution through- out the respondent's utility system. Betley, equipped with Associa- tion cards and his paper, described above, laid off work 2 days for the purpose of obtaining members. We have already noted the activities of Foremen Harter, La Velle, Clark, and Daniels in procuring members for the Association. Other supervisory employees also par- ticipated in the_melnbership campaign. These included Miles, Hen- derson, Edgell, and Crew ,Foremen Don Strock, C. Masten, Claude Hildebrand, and E. J. Miller. Carlton, who travels extensively in the vicinity of South Bend, Indiana, in connection with his duties as assistant general line foreman, collected 75 or 80 Association cards which had been signed by the employees and informed a great many about the May 20 meeting. Carlton also instructed Charles Havelin, a lineman, to solicit the membership of two active Brotherhood sup- porters who, according to Carlton, were "two pretty hard nuts to crack." Livelsberger, the respondent's general line foreman for the South Bend district, secured an Association card for a crew foreman under his supervision after the foreman had asked his advice about e Edgell was selected as the Benton Harbor. Michigan, representative on May 19 ; Durfey, an employee engaged in the respondent's tree-trimming work, was selected sometime before May 20. 1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD joining the Association. The Association, records show that 45 super- visory employees joined the Association shortly after its formation.10 2. Structure and operation of the Association; the contract On May 22 an Association committee composed of Carlton, Hen- derson, Marsh, and William Burke 11 presented the petition for recog-_ nition, together with a copy of the minutes of the May 20 meeting, to Charles B. Calvert, the respondent's assistant. secretary. In response to Calvert's request for - information about-the Association, Marsh assured Calvert that the group which met at Henderson's house on May 19 was determined to follow the Golden Rule in organizing and administering the Association. Calvert replied that under those cir- cumstances the Association need have no worry about having a con- tract signed. The committee reported to the Association that the management had promised its cooperation, and had granted the Association unofficial recognition upon presentation of the petition. Shortly after May 22 Holmes returned to South Bend and was informed of his selection as temporary chairman of the Association. Holmes asked the attorney about his duties and immediately assumed control and leadership. He wrote a tentative set of bylaws, which. were revised by the attorney and a committee he appointed from the Association membership. The membership of the bylaw committee consisted of 14 employees from the various departments of the re- spondent, including Edgell, and Foremen Ross_ Lillard, Strock, O. E. Jefferson, Ed Johnson, and Ray Landan.12 During the meetings of the bylaw committee the question of eligi- bility for membership in the Association was discussed. The com- mittee decided to "lean away from, rather than towards, including department heads, to be on the safe side." The eligibility of fore- men for membership in the Association was specifically considered, the decision being that they should be allowed to join but "not take too active part in the organization so as to make men working. under them feel that the union was run by higher-Lips." The bylaws were read and adopted at a general Association meeting held on June 11. The bylaws divide the Association membership into four groups,' the South Bend Division, the Michigan Division, the Elkhart Di- vision, and the Twin Branch Division. Each division has a Division Council which is composed of representatives selected from various Local Groups within the divisions.1' The Division Councils, in turn, 10 The status of these employees is discussed below. 11 Burke is a lighting salesman in the respondent's South Bend district. 12 Lillard is the respondent's tree-trimming foreman, and Jefferson , Johnson, and Landan are foremen in South Bend, Indiana ; Buchanan, Michigan ; and Elkhart, Indiana,. respectively. is Each of the respondent's departments having five or more employees comprises a Local Group. INDIANA & MICHIGAN ELECTRIC COMPANY 1001 supply representatives to the General Council of the Association, which is empowered by the bylaws to call mass meetings of the As- sociation membership, to negotiate with the respondent concerning wages, hours, and conditions of employment, and to make final. dis- position of grievances. Provision is made for the election of officers for the Local Groups, the Division Councils, and the General Council; for the holding of monthly meetings of Local Groups, Division Councils, and the General Council; and for dues, which are 25 cents a month. Membership in the Association is limited to employees of the respondent who were born in the United States or who have taken out first citizenship papers. Department heads, officials, and "agents" of the respondent are not eligible for membership in the Association. The record does not indicate the scope of the word "agents" as used in the bylaws. Between June 11 and July 17 Association officers in the various divisions were elected at meetings presided over by several of the persons who had helped establish the Association. Holmes, whose headquarters are in South Bend, Indiana, conducted the meeting for the Michigan Division in Benton Harbor, Michigan; Lambert officiated`in the South Bend Division at South Bend, Indiana; Collins conducted the Twin Branch Division meeting at Twin Branch, Michi- gan; and Henderson went from South Bend to Elkhart, Indiana, to conduct the Elkhart Division meeting. These elections placed Edgell in the office of president of the Michigan Division.; R. E. Denman, a meter foreman, became president of the Elkhart Division; H. Whittinack, a shop foreman, was elected vice president of the Twin Branch Division; and Collins, whose participation in the Association can be traced to Foreman La Velle; was chosen treasurer of that division. Although no supervisory employees held offices in the South Bend Division :in':1937, the 1938 South Bend officers included Miles, Clark, and Daniels. On June 24, 1937, the general council of the Association elected' Holmes president, Edgell vice president, Den- man secretary :and Coll: ins treasurer....These.officers,.,with the excep-. tion of Denman, were reelected to their posts in 1938. On June 16, 1937, Holmes, on behalf of the Association, delivered a proposed working agreement to the respondent. The agreement was prepared mainly by Holmes, with some aid from the General Council officers and the Association attorney. On August 3, the General Council officers met with Thomas F. English, the respond- ent's vice president and general manager, and Calvert, the respond- ent's assistant secretary, to discuss the proposed working agreement. Calvert opened the negotiations with the statement that the respond- ent had been petitioned for recognition by another group 14 and 14 On May 24, 1937 , a C. I. O . committee requested recognition from the respondent. 1002 DECISIONS OF NATIONAL . LABOR RELATIONS BOARD suggested to the Association representatives that they discuss with -their attorney the advisability of holding an election to establish the majority designation of the Association. Calvert also requested a copy of the Association bylaws as a condition precedent to any negotiations on the working agreement. English then suggested that the bylaws should graphically set up the organization of the Associa- tion, whereupon Calvert commented that `.`tlle.bylawsi,if they have not been changed, are set up that way." Following Calvert's suggestion that the Association establish its majority status by an election, Holmes wrote the Indiana State Labor Relations Board, at Indianapolis, Indiana, on August 3, requesting an election. The State Board referred him to the National Labor Relations Board. Holmes wrote to the Board's Chicago office and on August 24 sent the Board certain information about the Association. On September 28, 1937, the Board, in response to an urgent inquiry from Holmes regarding the election requested by the Association, informed Holmes by letter that the Association was under investiga- tion and that no information regarding its status could be released.'' On the day- the above' letter- was received, the Association wrote the respondent requesting a meeting on October 1 for the purpose of con- sidering the proposed agreement. Accompanying this letter was an affidavit stating that the Association represented 750 of the respond- ent's employees. Also on that day the respondent acknowledged re- ceipt of the Association's letter, formally recognized the Association as sole bargaining agent for its employees, and agieed to meet with Association representatives on October 1, as requested. The October 1 meeting, at which Calvert represented the manage- ment, was devoted to a reading and discussion of the proposed agree- ment submitted by Holmes on June 16. Calvert commented that many of the proposals contained therein were already in effect. Toward the end of the conference, Calvert summed up the discussion by saying : ... Generally speaking, your working conditions are satisfac- tory to the employees . . . There is nothing particularly abhor- rent on account of working conditions . . . There may be adjust- ments which we will have to consider but, in general, the question is going to boil itself down to a question of wages and salaries. Although the Association had proposed a 15-per cent wage increase, Calvert declined to discuss wages, stating that consideration of that matter should be postponed until English could be present. Holmes "This communication , which is in evidence, is captioned XIII-C-418. In that case United Electric Radio Workers of America , Local 906, C. I. 0., filed charges on July 20, 1937, with the Regional Director for the Thirteenth Region alleging that the respondent had violated Section 8 (1) and (2) of the Act. INDIANA- & MICHIGAN ELECTRIC COMPANY 1003 then.pointed out that "if negotiations are allowed to drag indeter- minately, it will contribute to more dissatisfaction arising among the. men." The meeting adjourned after Collins remarked to Calvert, "It might be surprising to you to know that a lot of men [are] much more favorable to other organizations. If no action is received, it [the Association] will be a flop." Without, further discussion of the wage increase proposed by the Association, the respondent, on October 18, offered to the Association a blanket increase of 5 cents per hour, effective November 1. Holmes discussed the offer at a meeting of the South Bend Division; Edgell brought it to the Michigan Division; Denman informed the Elkhart Division of the respondent's proposal; in the Twin Branch Division Collins "fluently offered a great number of citations and comparisons as to why the company management would not agree" with the 15-per cent increase proposed by the Association. On October 29, after the four divisions of the Association had voted in favor of the 5-cent in- crease, the Association accepted the respondent's offer. Holmes testi- fied that the 5-cent increase granted was, in the main, considerably less-thanethe increase proposed-by the Association. Negotiations between the Association and the respondent continued during November and December. Early in December the respondent submitted a Declaration of Policy to the Association. The Declara- tion contained no reference to wages or salaries but in other respects it did not differ materially from the working agreement originally proposed by the Association. The Association was reluctant to accept the Declaration of Policy and after further negotiations the respond- ent agreed to execute a contract with the Association covering working conditions, which was done on February 5, 1938. The contract is sub- stantially the same document as the Declaration of Policy previously submitted. On March 1 the respondent submitted to the Association a classification of employees which the Association had requested, and after the classification was accepted by the Association on March 22, 1938,..it was incorporated 'in the written -contract. During the life of the contract, the Association presented to, and discussed with, the respondent a number of grievances. Many of these grievances were handled on behalf of the employees by supervisory employees, particularly Safety Engineer Holmes and Foreman Lil- lard. Supervisory employees of the respondent also actively engaged in the collection of Association dues. Among them were Acting Gen- eral Line Foreman Edgell, Foremen Lillard, Daniels, Miller, Thorn- ton, and Strock, and C. E. Knepp, the chief distribution clerk for the transmission and-distribution department. 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 3. The respondent's responsibility for the activities of supervisory employees Since, as revealed by the facts set forth above, many of the respond= ent's supervisory employees participated in the establishment and ad- ministration of the Association, and since the respondent insists that the activities of these individuals are not binding on it, we shall con- sider the administrative structure of the respondent's utility system. The, system-, is divided- into, eight departments. at the head of each, of which is a superintendent. The system is also divided into three divi- sions, each under a division manager, and for some purposes into five districts, each under a district manager. The administration of the respondent's business is conducted by a hierarchy of supervisory em- ployees, headed by Thomas F. English, the respondent's vice president and general manager, and Charles B. Calvert, the respond'ent's assist- ant secretary. The transmission and distribution department, in which 352 'per. sons are employed, is the largest department in the system. Its super- intendent, G. F. Dequine, is directly responsible to English and Cal- vert. Under Dequine there are 44 persons of supervisory rank.. Of this number, 32 joined the Association and 25 were outstandingly active in its establishment and administration. In addition, 1 super- visors employed in various other of to respondent's departments joined and assisted the Association. We shall now discuss the func- tions of these supervisory employees who participated in the activities of the Association. Engineers.-F. M. Henderson, who joined and was active iii the rapid organization of the Association, is the respondent's transmis- sion or design engineer. He works directly under Dequinne, thereby holding a position fourth in line of authority from English, and is the only person in the respondent's employ who is engaged in transmis- sion or design engineering. Dequine supplies Henderson with requisi- tions for the construction of lines, and Henderson's function is to make plans and cost estimates for the construction under consideration. When Henderson's plans and estimates meet with Dequine's approval, Henderson is responsible for going forward with the construction of the work he has designed. Thus, he inspects the work as it progresses to insure compliance with the plans and specifications and approves the job when it is finally completed. In the performance of these duties Henderson is assisted by three engineers who work exclusively at his direction. At the time of the hearing Henderson and his en- gineers were principally engaged in planning the construction of a number of rural distribution lines. In connection with this particular task Henderson is assisted by four or five right-of-way men who, at INDIANA & MICHIGAN ELECTRIC COMPANY 1005; his direction, obtain easements from farmers over whose land the rural lines are being built. He also directs the work of a staking or survey- ing crew of four men who build the lines according to the plans and. specifications Henderson and his engineers have made. Henderson. has an engineering degree from the Iowa State College and receives a, monthly salary of $243.50. The respondent's distribution engineering for the entire system- is-handled by five district engineers whose work is coordinated by a. principal system distribution engineer at the direction of Dequine. Four of these district engineers, namely John Stoudt, Emmett Thomas,. Ward Wright, and Frank Miles, joined the Association, and one of' them, Miles, was active in its affairs. Miles makes plans and sketches,- draws up bills of materials, and works out cost estimates for the con- struction and maintenance of distribution lines and street-light cir- cuits in the vicinity of South Bend. As is pointed out below, on oc- casions he assists in the duties of general line foreman, for the South- Bend Division. Miles supervises the work of four engineers in South. Bend. The other distribution engineers perform functions similar to those of Miles. A. personnel chart prepared by the respondent.shows that the four other distribution engineers, including Stoudt, Thomas., and Wright, collectively supervise the work of nine engineers and three draftsmen. . George S. Holmes, the acknowledged leader of the Association after its formation, is the respondent's safety engineer, in charge of in- specting the employees engaged in line work for the purpose of en- forcing the respondent's safety rules. His position is fourth in line of authority from English, and he is the only person in the respond- ent's employ whose time is devoted exclusively to these functions. He has authority to report violations of safety rules to foremen and gen- eral line foremen, which violations, under the contract between the respondent and the Association, provide immediate cause for dis- charge. Holmes customarily represents the respondent in safety mat- ters at the National Safety Congress, the.-last meeting of which-,he attended in Chicago, Illinois, in October 1938. The respondent pays him a monthly salary of $208.50. E. P. Kreimer, who joined the Association, is the electrical engineer for the transmission, and distribution department, in- charge of rec- ords and reproduction work. Dequine ascribed to Kreimer the tasks of preserving the department's property, material, and line records, and developing information received from the engineers in the depart- ment into working drawings suitable to submit to the crews engaged- in construction work. Kreimer supervises the work of 5 draftsmen, 14 persons who work on property records, and 3 persons who are engaged in reproduction work. 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Milton C. Zumpe, the respondent's valuation engineer, also joined the Association. He supervises the work of 35 employees and is directly responsible to English. Thus, the respondent's engineers are highly trained employees to whom the respondent entrusts important functions in the adminis- tration of its utility system. These engineers, with the exception of Holmes, assign work to, and direct the work of, subordinate employees. Although Holmes does not assign work to employees, he inspects their work for the purpose of enforcing the' respondent's safety rules, and reporting violations of such rules. As noted above, his reports may provoke immediate discharge. Foremen.-In each of the three divisions the construction and maintenance work on the respondent's transmission and distribution lines is supervised and coordinated by general line foremen and their assistants. In the South Bend Division the general line foreman, un- der whom there are 88 employees, is Earl Livelsberger. Livelsberger assisted the Association by furnishing R. L. Hoblitzel, a crew fore- man under his direction, with an Association card when Hoblitzel in- quired as to whether he should join the Association. The assistant general line foreman in the South Bend Division is Glenn Carlton, one of the most active participants in the establishment and adminis- tration of the Association. Although Carlton is technically under the direction of Livelsberger, in practice he works more as a partner of than as a subordinate to Livelsberger. Carlton assigns work to, and supervises the work of, the transmission crew foremen and their crews in the South Bend Division, while Livelsberger handles the distribution end. Carlton has supervision over 4 crew foremen, who direct the work of 13 linemen, 2 groundmen, 2 carpenters, and 3 truck drivers. In addition to the transmission crew foremen who are under Carlton, Lillard, the foreman in charge of the tree1rimining work for the entire system with supervision over the 13 employees engaged in such work, reports to Carlton. When Livelsberger °is ill or on vacation, Carlton acts as general line foreman in charge of the transmission and distribution work for the entire South Bend Divi- sion, and is assisted at such times by Miles, the distribution engineer for the South Bend district. In the Benton Harbor or Michigan Division, Taylor Edgell, also an early and active participant in the Association, is the respondent's acting general line foreman, directly responsible to the division man- ager.16 His duties are similar to Carlton's. He assigns work to, 19 McKinder, the general line foreman for the Michigan Division, became ill in the spring of 1937. Edgell , who before that time had been a line foreman , was assigned McKinder's duties and at the date of the hearing was still performing them. This promotion occurred prior to the formation of the Association. .. INDIANA & MICHIGAN E.LE, CTRIC COMPANY 1007 And checks the work of, the 5, foremen and their crews of approxi- mately 25 men in the Benton Harbor Division. Among .his many duties is the apportioning of overtime work among the crews, which work is apparently very much sought after by the employees. The duties of general line foreman in the Elkhart Division are performed by E. Brubaker.17 Brubaker joined the Association early in its existence. The actual construction and maintenance work in the respondent's utility system is performed by crews of workers under the direction of crew foremen. These crews, of which there are 20 in the trans- mission and distribution department, are built around the crew fore- men and vary in number from 2 to 10 men, depending on the size of each job and its importance. The crew foremen, 31 of. whom joined and otherwise participated in the Association,"' are for the most part old employees, the youngest in point of service having been a foreman about 4 years and many of them having held their posi- tions more than 15 years. Crew foremen receive assignments of work and instructions from supervisory employees of higher rank, and are held responsible for executing their assignments in accordance with the instructions given them. They have complete authority over the day-by-day work of the men in their crews, having the right to determine the manner and speed of work; to maintain discipline and efficiency in their crews ; to report misconduct or inefficient work to higher supervisors, including department superintendents; 19 to recommend advancements; 20 to assign overtime work in some in- stances; 21 and to interpret.and require compliance with the respond- dent's safety rules. Virgil McClure, a crew foreman responsible to the superintendent of the substation department and a member of the Association, customarily participates in the-hiring of new em- ployees. When he is hr need of more men, he searches. out a satis- factory applicant and clears his choice through his superintendent IT His title appears to be district distribution superintendent. 1s These ' foremen are Russel Harter, William- La Velle, • Ernest Clark, Clarence Daniels, Don Strock, C. Hasten, Claude Hildebrand, O. E. 'Jefferson, E. L. Johnson, Ray Landan, Ross Lillard, H. Wittmaek, E. J. Miller, Henry Thornton, O. E. Smith, Ed . G. Brewer, Robert Chambers, George Thibideau, Al Snyder, Fred Rikert , C. F. Rayhorn, Charles Myers, M. E. Mowery, J. H. Mortimore, Ben Lossee, Ray Humberger, Deo Howe, R . L. Hoblitzel, Jack Hanley, Virgil McClure, and R.'E. Denonan. Of these 18 are crew foremen in the transmission and distribution department ; the others are crew foremen in various other departments . Denman is included in this group although he holds the title of meter superintendent since Dequine testified that his duties , involving the supervision of three or four meter testers, render him a meter foreman in the Elkhart , Indiana, district. • 19 Thus, Crew Foreman Miller secured the transfer of an employee to another crew as a. disciplinary measure by reporting to General Line Foreman Livelsberger and Assistant General Line Foreman Carlton. 20 One of the demands made by the Association in negotiating with the respondent was that the recommendations for advancement made by crew foremen be reviewed by. persons of higher rank. , 21 Crew Foreman Strock apportions the overtime work in his crew. 11 1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD who, in turn,' recommends the applicant to English for formal ap- pointment. On many occasions McClure's superintendent does not interview or recommend the applicant until McClure has put him to work. Ross Lillard, who had for many years been engaged by a tree-trimming contractor in Indiana, was employed by the respondent when the respondent first undertook to do its own tree-trimming work. He. organized this branch of the respondent's business and, subject to some assistance from Carlton, has been responsible for the tree-trimming work for the entire system since his employment, with supervision over 13 employees. Although crew foremen, like the men under them, are hourly paid employees, they receive at least 15 cents an hour more which on a monthly basis would give them a salary of about $25 more than the men who work under them. The crucial importance of crew foremen in the respondent's opera- tions and labor relations was aptly described at the hearing by De- quine, the superintendent of the transmission and distribution department, who testified that it takes at least 4 years to train a man to this position and that a crew foreman had to have a lot of qualifications. He has to be able to handle men, and I think probably a library is written on this subject. And that's a qualification that is probably one of the hardest to fill. He has to be able to maintain peace within the crews be- cause you cannot accomplish sufficient work if you have unrest in the crew or if you have one man against the other, or that kind of thing. He has to be able to promote harmony. He has to be thoroughly sold on safety work. He must understand at the time that he is on the crew,, during working hours, he is 'handling the company's cash register, and he must handle that efficiently. He is spending the company's time, money and ma- terial.... He is your key man. He is the success or failure of your organization. Thus, Livelsberger, Carlton, Edgell, and Brubaker supervise and coordinate the construction and maintenance of the respondent's transmission and distribution lines in the respondent's three divisions of operation. They assign work to, and direct the work of, the crew foremen who are employed in their respective divisions. The - crew foremen in turn assign work to, and direct the work of, the crews of workers and they are the key employees on whom the re= spondent relies for the "success or failure" of its personnel policies. Other supervisory employees.-The following individuals of super- visory rank also joined and otherwise assisted the Association : C._ E. Knepp, the chief distribution clerk for the transmission and dis- tribution department, who handles the timekeeping and the general 11 INDIANA- & MICHIGAN ELECTRIC COMPANY 1009 paper work for the department, supervising, and assigning work to 9 assistants; John Webb, the chief inspector for the transmission and distribution department, who directs the work of 7 assistant and dis- trict inspectors ; R. J. Brown, the assistant service superintendent for the transmission and distribution department, with authority over 13 persons who do service- and complaint work; Melville Hartley, the assistant general meter superintendent for the transmission and distribution department, who, together with the general meter super- intendent, supervises the 35 employees engaged in various types of meter work. Thus, the above-named employees perform significant supervisory -functions in the respondent's system, assign work to, and direct the work of, subordinate employees. The respondent contends that these supervisory employees do not represent management because they do not have authority to hire and discharge. That the employer is responsible for the acts of certain employees may, however; be' shown in other ways.2'2 The record compels the conclusion that the supervisory employees dealt with in this section are management representatives. They assign and direct work, maintain discipline and efficiency, and in gen- eral supervise the employees' under them. Several are themselves superior to other supervisory employees or otherwise high in the respondent's administrative hierarchy. Foremen possess the potent power of determining and making recommendations concerning indi- vidual merit for purposes of advancement, transfer, and discipline. The fair inference from the nature of the duties of the supervisory employees considered in this section but not designated foremen is that they too make similar recommendations. In practice Foreman McClure hires persons for his crew, although the formal authority is lodged_ elsewhere. - Crew foremen in immediate authority over the employees, are -concededly "key men" in the respondent's- organization. Under the contract between the respondent and the Association, as well as under the Association bylaws, it appears that the Association presents employee grievances to the respondent's foremen in the first instance. Under these. circumstances, and especially in view of the concerted action of these supervisory employees in establishing and 22 International Association of Machinists, Tool and Die Makers Lodge No. 85, eto. v. National Labor Relations Board, 110 F. (2d) 29 (C. A. for D. C.) enf'g Matter of The Herrick Corporation and International Union, United Automobile Workers of America, Local 459, 8 N. L. R . B. 621; National Labor Relations Board v. American Manu- facturing Company, 106 F. ( 2d) 61 (C. C. A. 2), enf'g Matter of American Manufac- turing Company et al. and Textile Workers Organizing Committee , 5 N. L. R. B. 443; Virginia Ferry Corporation v. National Labor Relations Board, 101 F. (2d) 103 (C. C. A. 3) enf'g as mod., Matter of Virginia Ferry Corporation and Masters, Mates and Pilots of America, No. 9, et al., 8 N. L. R. B. 730. For example, although the department heads do not have authority to hire and discharge, the respondent concedes responsibility for their acts. 0 1010 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD . maintaining the Association, it would be unrealistic to assume that they were not acting in their capacity of representatives of manage- ment in thus forming, joining, leading, soliciting for, and otherwise assisting the Association. It is true, as the respondent points out, that supervisory employees are eligible for membership in the Brotherhood and the Association. This does not demonstrate, however, that the respondent's supervisory employees relinquished their identification with -management by par- ticipation in.the Association. They, in fact, were largely responsible for the formulation of the bylaws which made them eligible for mem- bership in the Association. By the same logic, the president of an employer could have himself elected president of a labor organization and argue that the organization was lawful under the Act because the bylaws permitted him to hold both offices. As we stated in Matter of West Oregon Lumber Company: 23 .. union rules cannot sanction management interference, restraint and coercion. The Act was directed against interference by management with the exercise by employees of the rights guaranteed in Section 7. Since by Section 1 of the Act it is the policy of the United States to protect commerce through the guarantees in Section 7, and through the prohibitions in Section 8, those guarantees and those prohibitions cannot be set aside by the rules of private organizations. In Matter of Tennessee Copper Company,24 we answered a similar contention as follows : Membership of supervisory employees in a labor organization involved in a controversy over representation cannot confer on such employees a privilege to interfere, nor can the immunity guaranteed employees by 'the Act be impaired or diminished by the membership rules of any labor organization. The employee's right to a choice free from employer interference is absolute. Supervisory employees, although eligible for membership in com- peting labor organizations, are forbidden by the Act, in their capacity as the employer's agents, to interfere in the selection of employee bargaining representatives .. . We find that the engineers, foremen, and other supervisory. em- ployees considered in this section are representatives of management and that their activities in connection with the Association are attributable to the respondent. 23Matter of West Oregon Lumber Company and Lumber & Sawmill . Workers Local Union No. 3, 20 N. L. R. B. 1. 24 Matter of Tennessee Copper Company and Textile Worker8 Organizing Committee, 9 N. L. H. B. 117. See also Matter of Ward Baking Company and Committee for Industrial Organization, 8 N. L. R. B. 558. INDIANA & MICHIGAN ELECTRIC COMPANY 1011 4. Concluding findings Management representatives formed the Association. Of the 13 employees primarily responsible for its establishment, .8 were super- visory employees, namely, Crew Foremen Harter, La . Velle, Clark, Daniels, Assistant General Line Foreman Carlton, Acting General Line Foreman Edgell, Transmission Engineer Henderson, and Dis- tribution -Engineer Miles. Four of the remaining five organizers, namely Betley, Lambert, Collins, and Marsh, were persons brought into the movement by supervisors; The avowed purpose of the supervisory employees in organizing the Association was to forestall the growth of labor organizations with outside affiliations.. Management representatives pervaded the leadership, of the Asso- ciation. Thus, of the four persons serving on the committee which obtained recognition for the Association from the respondent even before officers were elected, two were supervisory employees : Trans- mission Engineer Henderson and Assistant General Line Foreman Carlton ; and a third, Marsh, joined the Association at the invitation of Carlton. Safety Engineer Holmes acted as temporary chairman and drafted the bylaws and bargaining proposals. The elections for officers of the Association were conducted under the auspices of Holmes and Henderson. Holmes was elected president. Acting Gen- eral Line Foreman Edgell and Meter Foreman Denman became vice president and secretary, respectively. Collins, who became treasurer, participated in the creation of the Association at the instance of a supervisory employee. These four officers composed, the governing body, called the General Council, of the Association. The respondent was well represented on both sides of the bargain- ing table. We have noted that Safety Engineer Holmes drafted the bargaining proposals for the Association. The General Council, dominated by supervisory employees, represented the Association in bargaining with the respondent. Moreover, the respondent's fore- men not only handled grievances for the Association, but also were authorized by the contract and the Association bylaws to represent the respondent in the first step of the grievance procedure. There could be no arm's length bargaining under these circumstances. The-negotiations between the Association and the respondent indi- cated the unlawful relationship obtaining between them. Thus, the General Council of the Association appealed to the respondent dur- ing the negotiations to make some concessions on the ground that .otherwise. the Association would be a"flop." Thereafter, without dis- cussion of a prior wage demand of the Association and long before a bargaining contract was executed, the respondent offered and granted the employees, through the Association, a 5-cent wage in- 1012 DECISIONS OF NATIONAL LABOR RELATIONS BOARD crease. It appears and we find that the respondent's purpose in granting the increase was to prevent the Association from.losing its :members. As such it was unlawful support.25 The type of appeal by the Association as well as the respondent's response thereto sug- gest that the Association was not independent of the respondent.'.. Finally, management representatives solicited memberships for the Association, collected dues, handled grievances on its behalf, and be- came members themselves in significant numbers. The respondent relies on the fact that the Association secured benefits for its members. But this is immaterial under the Act. if -the respondent has in fact interfered with, supported, and dominated -the Association.26 That the Association secured benefits does not prove that it was free from the interference, support, and domina- tion of the respondent. This success under the circumstances pre- sented here is at least as consistent with the contrary conclusion. In: short, management' representatives coerced employees in regard -to membership in the Brotherhood, and, in order to frustrate it and -other outside organizations, formed, nourished, and led the Asso- ciation. We find that the respondent has dominated and interfered with 'the formation and administration of the Association, and has con- tributed support to it, and has thereby interfered with, restrained, -and coerced its employees in the exercise of the rights guaranteed -in Section 7 of the Act. B. The alleged discrimination The complaint alleges, and the' answer denies, that the- respondent -discharged Forrest Elkins on December 24, 1937, because of his activ- ities in behalf of the Brotherhood. The Trial Examiner found that Elkins had not been discharged for union activities, and we concur in-his finding. Since the Brotherhood did not take exception to the 'Trial Examiner's recommendations we will not set forth the evidence with,respect to Elkins' case in further detail. We find that the respondent has not discriminated with regard to -the hire and tenure of employment of Forrest Elkins. The Trial Examiner found that the respondent interfered with, restrained, and coerced its employees in the exercise of the rights 25 Compare National Labor Relations Board v. American Potash and Chemical Company, et at ., 98 F. (2d) 488 (C. C. A. 9). 20 National Labor Relations Board v . Newport News Shipbuilding and Dry Dock Company, 808 U. S. 241, reversing and remanding National Labor Relations Board v. Newport News .Shipbuilding d Dry Dock Company, 101 F. (2d) 841 ( C. C. A. 4). See also Virginia Ferry ' Corporation v. National Labor Relations Board, 101 F. (2d) 103 (C. C. A. 4 ), enf'g as mod. Matter of Virginia Ferry Corporation and Masters, Hates and Pilots of America, No. 9, . et at., 8 N . L. R. B. 730. INDIANA, '& MICHIGAN ELECTRIC COMPANY 1013 guaranteed in the Act, by transferring Earl Freeman from a crew on which he was regularly employed to another crew, with a resultant loss in overtime work, because of his support of the Brotherhood. Freeman joined the Brotherhood in September 1937. He also solicited the membership of a fellow employee during the noon hour and because of such solicitation he became involved in a heated ex- change of words with Carlton, assistant general line foreman. The testimony is in conflict as to whether this incident occurred before or after the date of Freeman's transfer. On October 4,1937, because Freeman was performing his work in a "grouchy," "bull-headed," and "pouty" way, Crew Foreman Miller requested that Freeman be transferred to another crew. Pursuant to this request, it appears that Carlton and Livelsberger, general line foremen, arranged his transfer. Freeman conceded that Miller was a fair and reasonable person. Although Miller was active on behalf of the Associataion, he did not know of Freeman's membership in the Brotherhood or of the clash between Freeman and Carlton. Under these circumstances, we do not find that Freeman's transfer on October 4, 1937, was the result of his support of the Brotherhood. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III above, occurring in connection with the operations of the re- spondent described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. ' V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we will order it to cease and desist therefrom and to take certain affirmative action which we find is necessary to effec- tuate the policies of the Act. We have found that the respondent has dominated and interfered with the formation and administration of the Association and has contributed support to it. Its continued existence is a consequence of violation of the Act thwarting the purposes of the Act and rendering ineffective a mere order to cease the unfair labor practices. In order to effectuate the policies of the Act and free the employees of the respondent from - such domination and interference and the effects thereof, which constitute a continuing obstacle to the exercise by the employees of the rights guaranteed them by the Act, we will order the respondent to withdraw all recognition from the Association as 253031-41-vol. 20-65 1014 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representative 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 work, and to disestablish it as such representative.27 Since the agreement between the respondent and the Association embodies recognition of the Asso- ciation as such' representative, since further the agreement represents the fruit of the respondent's unfair labor practices, and a device to perpetuate their effects, we will order the respondent specifically to cease and desist from giving effect to this or any other agreement it may have entered into with the Association in respect to rates of pay, wages, hours of employment, or other conditions of work. Further, specifically ordering the respondent to cease and desist from giving effect to the agreement' with the Association follows from our more general order with respect to withdrawal of recognition and dises- tablishment, hereinabove described.28 The more specific order is the "relief . . . adapted to the situation which calls for redress." 29 We have found that the respondent did not discriminate against Forrest Elkins in regard to his hire and tenure of employment. We' shall, therefore, dismiss the complaint with respect to him. Upon the basis of the foregoing findings of fact and upon the entire record in this case, the Board makes the following : CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, Local B-9, and Michiana Electrical Utility Workers Association, are labor organiza- tions within the meaning of Section 2 (5) of the Act. 2. By dominating and interfering with the formation and adminis- tration of, and by contributing support to, Michiana Electrical Util- ity Workers Association, the respondent has engaged in and is engag- ing in unfair labor practices within the meaning of Section 8 (2) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondent has. engaged in and is engaging in unfair labor practices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 24 National Labor Relations Board V. Pennsylvania Greyhound Lines, 303 U. S. 261•; National Labor Relations Board v. Pacific Greyhound Lines, 303 U. S. 272,-' National Labor Relations Board v . Stackpole Carbon Company, 105 F. ( 2d) 167 (C. C. A. 3). 28 See Matter of The Dow Chemical Company and United Mine Workers of America, District No. 50, 13 N. L. R. B. 993. 29 See Clover Fork Coal Company v. National Labor Relations Board, 97 F. (2d) 331 (C. C. A. 6). INDIANA & MICHIGAN ELECTRIC -COMPANY 1015 5.' By discharging Forrest Elkins -thee respondent has not engaged in unfair labor practices within the meaning of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Indiana & Michigan Electric Company, and its officers, agents, suc- cessors, and:assigns,shall: 1. Cease and desist from : (a) In any manner dominating or interfering with the administra- tion of the Michiana Electrical Utility Workers Association, or the formation or administration of any other labor organization of its employees, and contributing any support to Michiana Electrical Util- ity Workers Association or to any other labor organization of its employees ; (b) Recognizing Michiana Electrical Utility Workers Association as the representative 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 work; (c) Giving effect to any agreement which it may have entered into with Michiana Electrical Utility Workers Association in respect to rates of pay, wages, hours of employment, or other conditions of work ; (d) In any other manner interfering with, restraining, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of. their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or 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 Michiana Electrical Utility Workers Association as the representative 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 work, and completely disestablish Michiana Electrical Utility Workers Association as such representative; (b) Post immediately and in conspicuous places in each operating division of the respondent's utility system, and maintain for a period. of at least sixty (60) days, notices, stating: (1) that the respondent, will cease and desist as provided in paragraphs 1 (a), (b), (c), and 1016 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (d) of this Order; (2) that the respondent withdraws all recognition from Michiana Electrical Utility Workers Association, as representa- tive of any of its employees, completely disestablishes it as such repre- sentative, and gives no further effect to any agreement with said Association in respect to rates of pay, wages, hours of employment, or other conditions of work; (c) Notify the Regional -Director for the Thirteenth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed in so far as it alleges" that the respondent has engaged in unfair labor practices with regard to Forrest Elkins.