West Texas Utilities Co.

In the Matter Of WEST TEXAS UTILITIES COMPANY and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS Cases Nos. C-847 and R-998.-Decided March, 30, 1940 Electric, Gas, Water, and Ice Utility Industry-Interference, Restraint, and Coercion: anti-union statements by managerial and supervisory employees to supervisory and ordinary employees interfering with rights guaranteed by the Act to supervisory, as well as to non-supervisory, employees ; distribution by managerial employees of a letter disparaging the Union and indicating that per- sons employed by another concern had been discharged by that concern for union activities ; suggestions to employees that they withdraw charges filed by the Board ; publishing a distorted and incomplete account of employees' rights under-the Act; pay increases granted at time of union organization campaign to discourage mem- bership in the Union ; spying upon union organizers ; surveillance of activities of union organizers and of union activities of employees ; conduct of an election among employees and publication of results thereof in such a manner and under such circumstances as to discourage membership in Union-Disci imination: found as to transfer and subsequent discharge of two employees and as to discharge of another ; allegations not supported by evidence dismissed as to two employees, one of whom was allegedly discharged both for union activity and for giving tes- timony under the Act--Company-Donti-nated Union: support, domination of, and interference with formation and adminstration of the "Committee." an unaffiliated labor organization and its successor, the Association ; diversion of employee organizational efforts from affiliated union by respondent's man- ifestations of hostility thereto ; suggestion by respondent that employees were free to form and join an unaffiliated organization "in opposition to dues-col- lecting unions" ; participation by supervisory employees in formation and ad- ministration of unaffiliated organizations without interference from respondent contrasted with respondent's efforts to discourage employees of similar status from engaging in activity of affiliated Union; because of unneutral attitude man- ifested by respondent toward the affiliated and unaffiliated organizations com- peting for membership among its employees, the Board rejects upon facts of this case respondent's claim that eligiblity of supervisory employees for affiliated Union relieves respondent of responsibility for their activities in connection with the unaffiliated organizations ; ordered to refuse to recognize-Reinstatement Or- dered: for employees discriminatorily transferred and discharged, to positions held by them>prior to transfer, and for employee discriminatorily di`s'charged; prior claim of total and permanent disability in workmen's compensation suit by discriminatorily discharged employee, held not to bar reinstatement where employee subsequently notified respondent of readiness and ability to return to work-Back Pay/: awarded-Investigation of Representatives: controversy con- cerning representation of employees : dispute concerning Union's majority status and appropriate bargaining unit-Unit Appropriate for Collective Bargaining: controversy as to whether two districts or entire system, comprising nine, should constitute unit : held that, especially in view of respondent's efforts to prevent 22 N. L R. B, No 24. 522 WEST TEXAS UTILITIES COMPANY 523 organization, employees in the two districts should not be compelled to await complete organization of nine districts before fully enjoying the righta guaran- teed under the Act; controversy as to exclusion of members of maintenance and repair gang : these employees found to be common laborers and therefore ex- cluded from unit of electrical workers ; Board finds appropriate a unit of elec- trical generation, transmission, distribution, installation, and service employees, excluding supervisory employees, clen ical employees, sales employees, full-time meter readers, chemists, hourly paid maintenance and repair men, night watch- men, janitors, yard clean-up and delivery men, but including employees at least partially engaged in repair and installation of meters and appliances-Election Ordered: to take place at such time as Board shall hereafter direct. Mr. L. AT. D. Wells, Jr., for the Board. Collins, Jackson & Snodgrass, by Mr. Scott Snodgrass and Mr. H. E. Jackson, of San Angelo, Tex., and Mr. A. K. Doss, of Abilene, Tex., for the respondent. Mr. Karl H. Mueller, Mr. Harold Mueller, and Mr. V. L. Ingram, of Fort Worth, Tex., and Mr. Lawson Wimberly, of Austin, Tex., for the Union. Mr. James P. Farrell, of San Angelo, Tex., for the Association. Mr. William Stix, of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTION STATEMENT OF THE CASE On December 14, 1937, International Brotherhood of Electrical Workers, herein called the Union, filed with the Regional Director for the Sixteenth Region (Fort Worth, Texas), herein called the Re- gional Director, a charge alleging that West Texas Utilities Company. San Angelo, Texas, herein called the respondent, had engaged in and was engaging in unfair labor practices within the meaning of Sec- tion 8 (1) and (3) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Amended charges alleging violations of the same subdivisions of Section 8 of the Act were filed by the Union with the Regional Director on March 19 and on April 26, 1938. On or before December 28, 1937, the Union filed with the Regional Director a petition alleging that a question affecting commerce had arisen concerning the representation of employees of the respondent in its generation, transmission, and distribution departments at San Angelo and McCamey, Texas, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the Act. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On June 29, 1938, the Board, acting pursuant to Section 9 (c) of the Act, and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 1, as amended, herein called the Regu- lations, ordered an investigation and authorized the Regional Direc- tor to conduct it and to provide for an appropriate hearing upon due notice; and , acting pursuant to Article III, Section 10 (c) (2), of the Rules and Regulations, further ordered that the case arising upon the petition be consolidated for purposes of hearing with the case arising upon the charges filed by the Union. Upon the charge and amended charges filed by the Union, the Board, by the Regional Director, issued its complaint dated July 14, 1938, 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) and (3) and Section 2 (6) and (7) of the Act. On July 22, 1938, the respondent filed with the Regional Director motions to dismiss the complaint and the petition and answers to the complaint and the petition . Pursuant to notice, a consolidated hear- ing in the complaint and representation cases , herein called the first hearing, was held in San Angelo, Texas, from July 25 through August 6, 1938, before Harlow Hurley, the Trial Examiner duly designated by the Board. Upon a second supplemental charge, filed by the Union with the Regional Director on August 4, 1938, the Board, by the Regional Director, issued its supplemental complaint, dated August 6, 1938, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 ( 1) and (2) and Section 2 (6) and (7) of the Act. The respondent filed an answer to the supplemental complaint in which, without waiving its motion to dismiss for want of jurisdiction, it denied the allegations thereof. Pursuant to notice, a hearing on the original and supplemental complaints and on the petition , herein called the second hearing, was held in San Angelo, Texas, on August 15 and 16, 1938, before Harlow Hurley, Trial Examiner, as a continuation of the earlier proceeding. On August 25, 1938, the Board ordered that, in accordance with Article II, Section 37, of the Regulations , proceedings in these cases be transferred to and continued before the Board for action pur- suant to Article II, Section 38, of the Regulations ; that no Inter- mediate Report be issued by the Trial Examiner ; that pursuant to Article II, Section 38 (d), of the Regulations , Proposed Findings of Fact, Proposed Conclusions of Law, and Proposed Order be issued; and that the parties should have the right within 10 days WEST TEXAS UTILITIES COMPANY 525 from the receipt of the Proposed Findings, Conclusions, and Order, to file exceptions, to request oral argument before the Board, and to request permission to file a brief with the Board. On October 21, 1938, the Board ordered that, in accordance with Article II, Section 38 (d), and Article III, Section 8, of the Regu- lations, the first and second hearings and the testimony, evidence, and exhibits taken therein and the motions and rulings made therein be set aside and stricken from the record,in these proceedings ; that the Board's order of August 25, 1938, be revoked ; that the proceed- ings be remanded to the Regional Director for the purpose of con- ducting a new hearing; and that the Regional Director be authorized to issue notices of a new hearing. On November 7, 1938, the Union filed with the Regional Director an amended charge and an amended petition for investigation and certification of representatives pursuant to Section 9 (c) of the Act. Upon this amended charge and amended petition for investigation, the Board, by the Regional Director, issued its amended complaint and notices of hearing on the amended complaint and petition, dated December 12, 1938.1 The amended complaint alleged that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1), (2), (3), and (4) and Section 2 (6) and (7) of the Act. Copies of the amended complaint and of the accom- panying notice of hearing were duly served on the respondent, the Union, and the Utilities Workers Protective Association, herein called the Association. The amended complaint, as further amended with- out objection during the hearing held on December 19, 1938, herein called the third hearing, alleges in substance that, because of their membership and activities in the Union, the respondent discrimina- torily transferred Volney R. Quinlan about November 28, 1937, and W. H. Wills about December 5, 1937, from the positions previously held by them, and discriminatorily discharged Wills about January 15, 1938, G. L. Yarbrough about February 12, 1938, R. S. Elder about April 19, 1938, Quinlan about July 23, 1938, and J. T. Joyner about October 8, 1938; that Joyner was discharged for the further reason that he testified in this proceeding; that the respondent dominated and in- terfered with the formation and administration of a labor organiza- tion which acted through an employees' representation committee, herein called the Committee, and with the formation and administra- tion of the successor of that organization, the Utilities Workers Pro- tective Association; that the respondent spied on meetings of the 1 Between September 1, 1938, and November 9, 1938 , the respondent filed a number of motions which were denied by an order of the Board on November 18, 1938, and subse- quently withdrawn by the respondent in a stipulation entered into by all the parties on December 19, 1938. See infra, footnote 3. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union ; that the respondent questioned employees about their member- ship in the Union and by oral statements and by articles in "Electric Times," a magazine published by the respondent for its employees, in- formed employees of its hostility to labor unions; that the respondent conducted an election among its employees to ascertain whether or not they desired a union- to represent them; and that, by these and other acts the respondent interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. On December 15, 1938, the Association filed with the Regional Direc- tor motions to intervene in the representation and in the complaint cases. On December 19, 1938, the respondent filed with the Regional Direc- tor (1) motions, which are hereby denied, to dismiss the complaint and to dismiss the petition on the ground that the Board is without jurisdiction of the respondent; (2) an answer to the amended com- plaint in which it admits certain allegations as to its business, denies other allegations, and makes affirmative allegations relating to cer- tain of the unfair labor practices set forth in the complaint; and (3) aneanswer to the-amended petition in which it alleges that the Union does not represent a majority of its employees in the unit set forth in the petition, denies that such unit is appropriate for collective bargain- ing, denies that a question affecting commerce has arisen, and alleges that all employees of the respondent or, alternatively, all employees of the respondent except those in District D, constitute an appropriate unit. Pursuant to notice, a consolidated hearing in the complaint and representation cases was held in San Angelo, Texas, on December 19, 1938, before Thomas S. Wilson, the Trial Examiner duly designated by the Board. The Trial Examiner granted the Association leave to intervene in the complaint case with respect to the trial of issues aris- ing under Section 8 (2) of the Act, and also leave to intervene in the representation case. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties.' During the course of the hearings the Trial Examiner made rulings on motions and on objections to the ad- mission 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. By a stipulation entered into on December 19, 1938, between the Board, the respondent, the Union, and the Association all the parties agreed that the record made on the first and second hearings, including all testimony of witnesses, written exhibits, stipulations as to facts, 2 Participation by the Association was limited to issues arising in the representation case and under Section 8 (2) of the Act in the complaint case WEST TEXAS UTILITIES COMPANY 527 and all evidence introduced at those hearings, be considered as the record made on the third hearing, and that all objections reflected by that record should be preserved for the benefit of the parties mak- ing them; and all the parties agreed, moreover, that at the third hearing any party might introduce evidence pertaining to any issue.' During' the' course of the third' hearingit 'was orally stipulated 'by all the parties that any and all evidence wherever appearing in the record of these proceedings might be considered by the Board in connection with any issue to which it is relevant and material, subject to any objections and exceptions appearing in the record. Since all the in- terested parties have agreed to reinstatement of the record of the first two hearings for the purpose of the third hearing, the Board has no objection thereto and approves the stipulation. On January 5, 1939, the Board issued an order that, in accordance with Article II, Section 37, of the Regulations, this proceeding be transferred to and continued before the Board for action pursuant to Article II, Section 38, of the Regulations; that no Intermediate Report be issued by the Trial Examiner; that pursuant to Article II, Section, 38 (d), of - the Regulations, Proposed Findings of Fact, Pro- posed Conclusions of Law, and Proposed Order be issued; and that the parties should have the right, within 10 days from the receipt of the Proposed Findings, Conclusions, and Order to file exceptions, to request oral argument before the Board, and to request permission to file a brief with the Board. This order was served on all the parties. On October 14, 1939, the respondent, the Union, the Association, and counsel for the Board entered into stipulations with relation to certain facts pertinent to the issue of the Board's jurisdiction and to the deter- mination of the unit appropriate for collective bargaining. On December 13, 1939, the Board issued its Proposed Findings, Proposed Conclusions of Law, Proposed Order, and Proposed Direc- tion of Election, to which exceptions were filed by the respondent and the Association on January 15 4 and by the Union on January 16, 1940. 8 By this stipulation ( 1) the respondent withdrew all its motions filed in this proceeding between September 1 and November 9, 1938, both inclusive , and agreed that the Board's orders of August 25 , October 21, and of November 18, 1938, should stand with 'full force and effect and that no legal objection to them would be raised at any time before the Board or any Court of the United States ; and (2 ) the Union withdrew its request (which does not appear in the Board's files) that the Board rescind its order of October 21, 1938, and agreed that it stand with full force and effect and that no legal objection would be raised at any time before the Board or any Court of the United States . Cf. supra, footnote 1 4 By its exceptions the Association requested the Board to "set aside and vacate" certain proposed findings or , alternatively , to reopen the case to permit the Association to establish the contrary of those findings Since the amended complaint and the respondent's and the Association 's answers thereto adequately raised the issue to which the findings in question relate, since no substantial reason is shown by the Association for its failure to adduce the evidence which it desires an opportunity to present ; and since the Associa- tion has not specified the nature of the evidence which it proposes to adduce, we hereby deny the request for a rehearing 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 25, 1940, the respondent filed a brief. Pursuant to notice, oral argument was had on January 30, 1940, before the Board in Washington, D. C. The respondent appeared by counsel and the Union by its international representative and participated in the oral argument. The Board has considered the exceptions and brief filed by the respondent and the exceptions of the Association and the Union but, save in so far as they are consistent with the findings, conclusions, and order set forth below, finds the exceptions to be without merit. Upon the entire record in the proceedings, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT A. General nature of the respondent's business The respondent, a subsidiary of The Middle West Corporation,° is a Texas corporation with its principal office at Abilene, Texas. It has assets of approximately $45,000,000, and operates throughout an area of 45,000 square miles in 49 counties of, western Texas, pro- viding electricity, water, gas, or ice service in 166 cities, and coln- munities.6 The respondent maintains electric-generating plants of an aggregate capacity of approximately 53,000 kilowatts, including 3 steam-power plants (1 at San Angelo with a capacity of 25,000 kilowatts, 1 at Abilene with a capacity of 5,000 kilowatts, and 1 near Quanah with a capacity of 15,000 kilowatts) and 16 smaller electric-generating plants (including 14 operated by Diesel power), of which 15 are used for standby purposes; 7 2,608 miles of integrated electric transmission lines; 13 ice plants; 7 water plants with 140 miles of mains; and 1 gas plant with 8 miles of mains. Throughout the entire system the respondent has approximately 1,000 employees. In• 1937 electricity totaling 298 million kilowatt hours was generated and gross revenues of $4,689,058 were realized from its sale to 13,265 commercial, municipal, and industrial and to 36,208 domestic cus- tomers; 53 million cubic feet of gas were sold to 408 customers, resulting in a gross revenue of $21,324; and 902 million gallons of S The Middle West Corporation, a holding company, owns 52.72 per cent of the common and 3127 per cent of the preferred stock of the Central & Southwest Utilities Company, which in turn owns 99 .72 per cent of the common stock of the American Public Service Company , which in turn owns all of the common and 31 61 per cent of the preferred stock of the respondent . These figures are as of November 30, 1936 The respondent provides some communities with mole than one of these types of service. 7It is the respondent's practice to supply the entire system by use of the San Angelo and Quanah plants, keeping as heavy a load as possible on the latter plant at all times and operating the Abilene plant only intermittently as needed. WEST TEXAS UTILITIES COMPANY 529 water were distributed to 8,237 customers , yielding a total income of $263,408. Except for control relays located south of the Quanah power sta- tion which prevent the flow of power northward but permit it southward , no control is installed to interfere with the free flow of electric power throughout the respondent 's entire transmission net- work. The respondent's lies are connected with those of Texas Electric Service Company and power moves freely from one system to the other, each company receiving from the other approximately the salve amount of power as is delivered to it. The respondent sells power to Pecos Valley Power & Light Company, which serves oil fields in five counties of Western Texas." At a point in the southern boundary of Hartley County, the respondent receives power from, and at a point in the western boundary of Wheeler County, delivers power to Southwestern Public Service Company. An emer- gency interconnection is maintained with Central Power & Light Company.' If the respondent were to cease operating its San Angelo and Abilene plants, it could obtain sufficient power through its inter- connections with other companies to enable it to meet its normal peak loads. At Abilene, which is the location of the respondent 's principal office. the president and general manager, the vice president and general superintendent, the superintendent of transmission , the meter super- inteilclent, the production superintendent, and the construction super- intendent have their headquarters. There the respondent maintains a central repair shop for automobiles and a central storeroom for sup- plies and merchandise . Abilene is the center of operations for numer- ous dispatchers , engineers, maintenance crews, and electricians. For customer service and routine local distribution , the respondent's system is divided into nine districts.10 The respondent, in the course of its operations during 1937, used materials and supplies-exclusive of water and of fuel for its steam and Diesel plants-of an aggregate value of $371 ,544.11. Of this e Although it does not keep a regular operating crew on hand the Pecos Valley Com- pany has an 18,000-kilowatt generating plant which can be put into operation within 24 hours and which is mole than adequate to supply the normal load of its own customers and of the respondent's customers in District H, who together requue approximately 13,000 kilowatts 6 Pecos Valley Power & Light Company and Central Power & Light Company ate subsicli- aries of The Middle West Corporation "These districts are designated by letters Some of the districts ate referred to in the record by the names of cities where the respondent has its principal office within them, a^ follows D-Dalhart, E-Quanah; H-McCamey, K-San Angelo Eldorado, Mertzon, Ozone, Sonora, and Sterling City-which are among the towns named infra-ate situated in District K 530 DECISIONS OF NATIONAL LABOR,. RELATIONS BOARD total, commodities to the value of $75,641.62,11 or approximately 20 per cent, were received from points outside Texas and additional com- modities to the value of $215,399.68, or approximately 58 per cent, were manufactured outside Texas but delivered from warehouses in Texas.12 In 1937 the respondent received appliances for resale to the value of $566,656, of which articles costing $39,195, or approximately 7 per cent, came directly from manufacturers outside Texas and addi- tional articles valued at $523,397, or approximately 92 per cent," were manufactured outside Texas but delivered from warehouses within the State. B. The respondent's electrical customers 1. Interstate sales On the Texas side of the Texas-Oklahoma border, near Quanah and near Vernon, the respondent has interconnections with the electrical transmission system of Southwestern Light & Power Company, herein called Southwestern, a company which transmits and distributes power within Oklahoma and which is a subsidiary of The Middle West Cor- poration. On November 1, 1928, Southwestern and the respondent entered into a contract whereby the respondent agreed to furnish to Southwestern electrical energy under-"firm"- power of 5,000 kilowatts. On May 26,,1934," by a supplemental agreement,. the amount of firm power was increased to 8,500 kilowatts, which is equivalent to approxi- mately 16 per cent of the respondent's aggregate generating capacity. By the original agreement each company agreed to furnish to the other "emergency" power. During the year 1937 the respondent delivered alld sold to Southwestern approximately 41/2 million kilowatt hours per month, constituting more than 1/6 of the power generated by the respondent. The contract between the two companies was terminated on November 1, 1938, but under a temporary arrangement the respond- ent continued to furnish, and Southwestern to purchase, power in ap- proximately the same quantity as it had previously. Negotiations "This does not include purchases totaling $14,208 20 which were shipped partly from points within and partly from points outside Texas ; nor, for lack of information about the shipping point, does it include two shipments , totaling $3,894 , from companies outside Texas 1=These materials include copper wire, aluminum cable. guy strand , creosoted pine poles, lmhtning arresters , transformers , insulators , meters, switches , incandescent lamps , copper pipe, copper tubing , and other commodities All fuel for steam and Diesel plants, of which the total cost during 1937 was $426,702 45 , was purchased in Texas. Water used in generating electiicity, as well as that distributed to customers , oiiginated in Texas watersheds "This includes a purchase of appliances valued at 878,288, some of which were shipped to the respondent from outside Texas -WEST, TEXAS UTILITIES COMPANY 531- were in progress at the time of the third hearing looking toward the conclusion of a new contract.14 2. Sales to railroads engaged in interstate commerce At Cisco, Putnam, Baird, Clyde, Abilene, Merkel, and Trent the respondent supplies electricity to Texas & Pacific Railway Company, which is engaged at those points in transporting passengers and freight in interstate commerce. This power is used for the operation of automatic electric block signals and for lighting and operation of stations and other structures on terminal lands. The respondent supplies electricity to Panhandle & Santa Fe Rail- way Company at seven locations in San Angelo, at its stations from McCamey to San Angelo, inclusive, at Sonora, Eldorado, Bronte, Hamlin, Sylvester, McCaulley, Crowell, and other stations, at each of which points the railway is engaged in transporting passengers and freight in interstate commerce. This power is used for round- house lighting and power, for passenger depots, switchyards, freight office, warehouse, and street-crossing signals 15 At Menard, Santa Anna, Ballinger, Miles, and Valera the respond- ent furnishes electricity to Gulf, Colorado & Santa Fe Railway Company for its stations, for telegraph lines, and for incidental use. At'points-where' it is served by the respondent this railway company, is engaged in an interstate freight and passenger business. At San Angelo the railway uses the terminal facilities of Panhandle & Saute Fe Railway Company, which receives power from the respondent.16 At Dalhart the respondent supplies electricity to Chicago, Rock Island & Pacific Railway Company, which is there engaged in trans- porting passengers and freight in interstate commerce. The power is used for lighting and operations of various structures on terminal 14 Because of relays which are Installed in the respondent 's transmission lines, the power which is furnished to Southwestern comes exclusively from the respondent 's Quanah plant, and none of the power generated at the San Angelo station flows into Oklahoma At the interconnection between the lines of the respondent and Southwestern ;, there, is an automatic mechanism which, in the event of an interruption of the flow of power from the respondent's lines, would in 5 seconds establish a connection between Southwestern's lines and the lines of Oklahoma Gas & Electric Company , an Oklahoma company, which would provide Southwestern with sufficient electricity for its needs Southwestern, more- over, has generating equipment of its own which can be placed in operation upon an hour s notice and which is adequate to supply all the current it requires. 15 The San Angelo shops of Panhandle & Santa Fe Railway Company are equipped with steam boilers which normally are kept in operation, which were formerly used to operate the shop machinery, and which, in case of emergency, could be used for that purpose at any time The rai1NNay company has sufficient oil lights available for lighting purposes In the territory in which it is served by the respondent it maintains one line of dispatching service which can be operated with wet cells on 2 hours' notice. 16 At they points where Gulf;- Colorado & Santa 'Fe Railway, Company; receives.po\tii,,, from 'the respondent , the railway has battery equipment which can be used to supple electrical energy for its telegraph instruments 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lands and for operation of telegraph instruments used in the dis- patching of trains.' The respondent supplies electricity to Fort Worth & Denver City Railway Company at Quanall, Childress, Clarendon, and 13 other points, at each of which the railway handles freight and passengers moving in interstate commerce. The power is used for lighting, water pumps, signals, and other purposes. The respondent also supplies power at various points to Missouri, Kansas & Texas Railway Company; Wichita Valley Railway Com- pany; Sante Fe Railway Company; Quanah, Acme & Pacific Rail- way Company; Abilene Southern Railway Company; and St. Louis- San Francisco Railway Company. 3. Oil pipe lines The respondent, in 1937 and 1938, supplied electrical energy for the operation of oil pipe lines to Shell Pipe Line Corporation at three points, to Humble Pipe Line Company at six points, to Mag- nolia Pipe Line Company at two points, and to Atlantic Pipe Line Company, Texas-New Mexico Pipe Line Company, and Texas Pipe Line Company each at one point.1' A trunk line of Shell Pipe Line Corporation runs from Hobbs, New Mexico, to a tank farm at Wink, Texas, where there are two branches, one going to Houston, Texas, and the other to Cushing, Oklahoma. The former line runs through McCamey, Eldorado, and Menard, at which points there are pumping stations powered by electricity received from the respondent.111 At McCamey there is a telephone line and a telegraph line, including a telegraph panel board, which are activated by electricity furnished by the respond- ent. These communication systems, which are essential to operation of the pipe line, are used for dispatching purposes and for other intra-company messages.21 From McCamey one branch of the line lv Dalhart is situated in the respondent 's District D, which is 45 miles removed fiom the nearest point in any of the respondent 's other districts while the respondent operates a 220-kilowatt Diesel generating station at Texline in District D and maintains for emer- gency purposes a 1300 -kilowatt Diesel plant at Dalhart , it normally purchases from South- western Public Service Company, and receives through its interconnection in the south line of Hartley County. all electricity used by it in District D communities other than Texline "The recoid does not disclose the nature of the operations conducted by any of these pipe -line companies except the Shell and Humble companies 19 From May 1937 through April 1938, the respondent furnished to Shell Pipe Line Corporation 2,897 ,000 kilowatt hours of electricity at Eldorado and 2 ,918,000 kilowatt hours at Menard The recoid does not disclose the amount of power furnished at McCamey 20 The Shell Company has on hand batteries which are adequate to operate the tele- graph system in the event of a brief interruption of the power supply Sources of power, other than the respondent , are available for operation of the telephone system, but not of the telegraph equipment WEST TEXAS UTILITIES COMPANY 533 runs to Healdton, Oklahoma, and another to Houston, Texas. The station at McCamey is a "head station," while those at Menard and Eldorado ' are "booster stations." If the power at the head station were cut off, the Oklahoma branch line would have to be shut down between McCamey and Healdton, Oklahoma. The average daily volume of oil passing through McCamey at the 'date of the hearing was 60,000 barrels.21 One branch of the pipe line of Humble Pipe Line Company originates at Hobbs, New Mexico, and runs through a gathering station at Wink, Texas, to Big Lake, where there is another gather- ing station and the dine forks into two sections, one running to Ingle- side, near Corpus Christi, the other to Baytown, near Houston. The latter line runs through Mertzon, San Angelo, Miles, and Coleman. At Coleman it is joined by a line from the Texas Panhandle. From May 1937 through April 1938 the respondent furnished to Humble Pipe Line Company 3,139,900 kilowatt hours of electricity at Mertzon; 86,010 kilowatt hours at San Angelo; 2,795,600 kilowatt hours at Miles ; and 2,355,600 kilowatt hours at Coleman.22 Power supplied by the respondent to the Mertzon, Miles, and Coleman sta- tions is used to operate electric motors which motivate the pumps; and power supplied to the San Angelo station of the pipe line, where the pumps are operated by Diesel motors, is used for auxiliary machinery, for lights, and for the company's own telephone and tele- .mraph systems which are essential to the operation of the pipe line.23 W. G. Jenkins, chief engineer of Humble Pipe Line Company at its San Angelo pumping station, testified that, since oil from New Mexico might be routed to Ingleside rather than to Baytown, he was uncertain whether any of it passed, through San Angelo. He stated however, that oil was dispatched from Hobbs hourly and that he has at San Angelo detected telegraphic messages from the dispatcher at Hobbs destined for Houston. From the use of the telegraph line to convey dispatching signals from Hobbs, New Mexico, to Houston, we infer that oil is sent through the pipe line from New Mexico to n Part of this volume is accounted for by the temporary shifting of surplus oil from McCamey. When that operation is completed the volume will drop to 26 ,000 or 27,000 barrels a day The Shell Company has an interconnection with a pipe line belonging to the Texas Company, which runs to Houston and is one of several other pipe lines which serve the McCamey area. These pipe lines operate at less than their capacity and it would be possible to send oil through them in the event of an interruption at Shell's McCamey station Pecos Valley Power & Light Company has transmission lines which iun within a mile of McCamey , and the Shell pumping station could readily in the-event-of an emergency be connected with the lines of that company Cf footnote 7, supra . 2' Electricity in lesser quantities was furnished to Humble Pipe Line Company at Hawley and Merkel At Hawley the seivice is used for incidental light and power in connection with the operation of a pumping station (apparently on the Panhandle branch line). At Merkel the powei is used to operate a gathering station 23 If,the power supplied by the respondent to the San Angelo pumping station were cut ofV. that station could not operate until lightine machinery was installed 3s3033-41--\ of 22---5 534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Houston, Texas, and that it passes en route through the points where the pipe line receives power from the respondent. The normal flow of the pipe line from Big Lake through the points serviced by the respondent is between 45,000 and 50,000 barrels a day. If the electricity were cut off at a booster station such as Mertzon or Miles, the flow would be diminished by about 10,000 barrels. 4. Post offices The respondent furnishes electric power to United States Post Offices in 40 communities. This power is used in all those offices for lighting and in some of them for operation of stamp-canceling ma- chines, conveyors, and other auxiliary equipment. 5. Telephone companies The respondent furnishes electricity to San Angelo Telephone Coin- pany at San Angelo, Ozona, Sterling City, and eight other points; to Southwestern Bell Telephone Company at Abilene and four other points; and to eight other telephone companies at various points. The energy received by the companies is used in transmitting and receiving interstate and local communications.24 6. Telegraph companies The respondent furnishes electricity to Western Union Telegraph Company at San Angelo, McCamey, Abilene, Ballinger, Quanah, and seven other cities ; and to Postal Telegraph Company at Abilene, San Angelo, and Cisco.25 7. Airways The respondent furnishes electricity which is used for Airway Beacon No. 4, maintained by the United States Department.of Com- merce at Shamrock, and for beacon lights at the Abilene and Merkel airports. American Airlines operates planes which fly through Texas on a transcontinental schedule, and one east-bound and one west- bound plane make daily stops at Abilene. The respondent furnishes electric power for the operation of a radio weather station located near Abilene which is maintained by the United States Government for the purpose of giving weather information to pilots of airplanes in transit. 24 At San Angelo and at Abilene , as well as at certain other points , the telephone com- panies have generating equipment which would permit them to operate for indefinite periods without receiving any power from the respondent Postal Telegraph Company , and possibly western Union Telegraph Company, has ade- quate emergency generating equipment at each of the points where it receives power from the respondent and could operate without any electricity from the respondent. 4 WEST TEXAS UTILITIES COMPANY C. Conclusions 535 The respondent receives from outside Texas a substantial portion of the materials used by it in its operations. It sells large quantities of the power generated by it to a company located in Oklahoma. A labor dispute between the respondent and its employees would seri, ously affect the flow in interstate commerce of the materials received by the respondent and of the power generated by it. A large area in the State of Texas is primarily dependent upon the respondent for the generation and almost totally dependent upon the respondent for the transmission and distribution of electric energy.26 Within that area the respondent supplies electric power to railroads engaged in the interstate transportation of passengers and commodities, to pipe lines engaged in the interstate transporta- tion of oil, to telephone and telegraph companies engaged in the interstate communication of messages, to post offices of the United States which receive and transport mail from one State to another, and to facilities used by commercial airplanes in making interstate flights. A labor dispute between the respondent and its employees would burden and obstruct the operations of these agencies of inter- state transportation and communication. There is evidence that a number of the agencies engaged in inter- state commerce to which the respondent supplies electrical energy have equipment which-would enable them, in an emergency, to oper- ate without receiving power from the respondent, but the agencies which are so equipped do not constitute all of the respondent's cus- tomers engaged in interstate commerce. The Board, moreover, has jurisdiction over unfair labor practices which burden interstate commerce and, while some of the agencies which have emergency apparatus could maintain their operations without the benefit of the respondent's power, the transfer from one source of power to another would in many instances entail not only delays,, dislocations, and interruptions of commerce, but also additional expense, all of which- would interfere with the free flow of interstate commerce.27 2e The respondent is the principal supplier of electrical energy on a commercial ba,is in all the communities which it serves. In four communities , however, there are competing municipal plants and two utility companies compete with the respondent in a total of eight counties ( Upton , Reagan , Pecos , Crockett , Sherman , Moore, Hartley , and Dallam) 27 In Matter of Southern California Gas Company and Utility Workers Organizing Com- mittee, Local No 132, 10 N . L. R B. 1123, 1132 , we said The Company's chief contention that a labor difficulty which completely tied up the operations of the Company would not necessarily result in a complete cessation of the operations of its consumers may be granted without thereby conceding that the Board lacks jurisdiction For it is not necessary for a labor dispute to result in a complete paralysis or cessation of activities in order to affect, burden , obstruct or impede the free flow of interstate commeice The dislocation of the activities of an industrial area falling short of a complete paralysis cannot be regarded as trivial, or as an effect upon commerce so slight as not to be within the power of Congi ess to prevent. 536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD II. THE ORGANIZATIONS INVOLVED International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, is a labor organization which admits to membership electrical workers engaged in the assembling, construction, installation or erection, repair, or maintenance of equip- ment required in the production of electricity and in the operation, inspection, and supervision of equipment by which electricity is generated, utilized, and controlled. Employees of the respondent engaged in these types of work are eligible for membership in Local 898 of the Union. Utilities Workers Protective Association, and the Committee, to which it is the successor, are labor organizations. Membership in the Association is limited to all regular and some part-time em- ployees of the respondent, not including officials and executive officers, in the transmission, generation, distribution, service, meter, water- pump station, water distribution, and ice-production departments in Districts G, H. and K. 111. THE UNFAIR LABOR PRACTICES 91 About September 10, 1937, W. L. Ingram, international vice presi- dent of the Union, came to San Angelo, to ascertain whether the re- spondent's employees were interested in organizing a union and left some application blanks with Volney R. Quinlan, one of the employees named in the coliiplaint. Ingrain returned to San Angelo about September 21, 1937, and met with a group of employees who had ap- plied for membership and had requested the Union to issue a local charter. The charter, granted to Local 898, was installed at a meeting held in San Angelo on October 5. Shortly thereafter W. H. Wills, another employee named in the complaint, made a trip from San Angelo to McCamey to assist in organizing employees of the respond- ent in District H. Following is a list identifying persons frequently referred to in the decision: H. H Batjer, manager of District K. P W. Campbell, safety director. K. A Ferguson, distribution superintendent, District B. H S Guthrie, meter foreman, District K. G A Hollowell, production supeiintendent. W E Huss, chief engineer, San Angelo power plant. w L Ingiam, international vice president of the Union. J F Longley, transmission superintendent H E Pittman, manager of District H. F W Schroeder, vice president and general superintendent. Clemon Scott, shift engineer, San Angelo power plant. Al Stein, construction superintendent Olin Thames, assistant chief engineer, San Angelo power plant. Dan Whitaker. meter superintendent. Lawson Wimberly, international representati'ie of the Union. WEST TEXAS UTILITIES COMPANY 537 In September 1937, F. W. Schroeder, the respondent's vice president and general superintendent, heard from Dan Whitaker, general meter superintendent, and Al Stein, construction superintendent, that the Union was organizing the respondent's employees. Schroeder told Stein that if the men were considering the formation of a union "there was something wrong," and lie instructed Stein to talk to the men in San Angelo and to find out what the trouble was. Pursuant to these instructions, Stein consulted a number of employees at the powerhouse in San Angelo late in September or early in October in order to discover whether they had any complaints. _ About the middle of September, G. A. Hollowell, the respondent's production superintendent, who had heard of the Union's organiza- tion efforts, made a special trip to San Angelo. While Hollowell fre- quently made trips to San Angelo in the course of his duties, he remained there 10 days on this occasion, a longer period than he customarily stayed. Finding that some employees favored the Union, lie endeavored to discourage them from joining it. Because of the "dissention and unrest" which lie believed to exist in the San Angelo power plant, late in October Hollowell brought seven employees to the plant from other locations in the respondent's system in order that they might-familiarize themselves with the work in the San Angelo station. These men remained in San Angelo for 2 or 3 weeks and, on their departure, a second group of four men was brought in. A. Interference, restraint, and coercion 1. Anti-union statements Virtually from the inception of the employees' efforts to organ}ize, officials and supervisors of the respondent made statements to em- ployees in an attempt to discourage them from joining the Union and participating in its activities. Hollowell expressed appreciation of the attitude shown by R. S. Elder'29 an employee whom he thought not.to have joined the Union, and disapproval of the attitude of C. J. Williams, a shift engineer -10 whom he considered to be sympathetic with the Union. In September or 'early October Hollowell, informed Sylvester Grounds that the respondent "didn't think we were loyal to the company by organizing the union, or he thought we were making a mistake doing it"; subsequently he made a similar anti-union state- ment to Grounds; and he likewise advised W. A. Camfield, another worker, to use his "own head" and do his own "thinking" about this "union business." Hollowell admitted that he had talked, to "most of 20 Cf. infra. 30 See infra, footnote 33. 538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the employees" at the San Angelo plant about the Union, that these conversations occurred as late as April or May 1938, and that he had referred to union organizers as "evangelists." While he testified that his strongest statement with reference to the Union had been that he did not believe any benefit would come to them from it and that it would'probably cause dissension in the plant, he failed to deny specifi- cally the statements which other witnesses attributed to him. Since he admitted having presented to employees arguments against the Union, we find that he made the remarks set forth above and those referred to in footnote 31.31 On one occasion J. F. Longley, the respondent's superintendent of transmission, assembled the District K transmission crew and told them that he was going to talk about the Union. Having remarked that the company had been fair to its employees, that it had paid them when they were sick, and that it had pro-rated their work during the depression, he told them of a man who had been required to pay $100 for a union card in order to obtain permission to work. Commenting that, if he were a worker, he would not want the Union to take any money out of his earnings and that he knew the company would not pay higher wages, he declared that he and his men would "get along" regardless of whether they were union members, but he advised them, if they were members, to resign and, otherwise, not to join. Subse- quently, at a meeting in the office of H. H. Batjer, the manager of District K, at which Batjer, Longley, P. W. Campbell, safety director of the respondent, and K. A. Ferguson, distribution superintendent for District K, were present, Longley told A. S. Ray, a foreman'32 that if he owned a business and if Ray, being his employee, joined the Union, he would have to ask him to get another job. Campbell said to Ray that the Union would do the same thing as the Ku Klux Klan, which had created strife, caused killings, and made neighbor turn against neighbor. While on several occasions Ferguson had told Ray that he should determine for himself whether or not to join the Union, subsequently-after Ray had become a member-he inquired, ". . . I want to ask you something, do you still think you bettered yourself by joining the Union?" When Ray answered affirmatively, Ferguson said that Ray had had a bright future with the Company and expressed regret at hearing that he belonged to the Union. " Other anti-union statements made by iiollowell are set forth in the discussion of discrimination aa;ainst wills, Quinlan, and Elder, infra 32 Buck Dorsey, as well as Ray himself, testified that Ray is a foreman Although a list of employees prepared by the respondent identifies Ray simply as a "gioundman," we believe that the testimony of Dorsey and Ray is entitled to credence, because that list fails to designate as supervisory employees not only Ray but also the shitt engineers at the San Angelo power plant, who are admittedly foremen . Cf infra WEST TEXAS UTILITIES COMPANY 539 W. E. Huss, chief engineer of the San Angelo power plant, told C. J. Williams, "Mr. Wiliams, about this damn union that is coming on, . . . I don't approve of it ... I want it stopped ... If it ain't stopped, I am going to fire every damn man in here. ... Them or- -ganizers will take your money, and leave you boys holding the sack;" and lie stated that he did not approve of Williams' attitude toward the organization and that the company would spend $500,000 fighting the Union.33 Declaring that for 35 years he had been combatting Ingram, who had a $50,000 home which he had "made. . . off the Union," Huss warned an employee named Spencer, "The first crooked step you make, out you go," but he refused to advise Spencer as to what to do if he was already in the Union. To other employees Huss made statements that the Union would be "a pretty cold-blooded out- fit" and that if they listened to the union organizers they would "get in a hell of a shape." On October 4, when he notified the men of a pay increase, Huss declared that the "God-damned Union didn't have any- thing to do with it." 34 Huss denied that lie had told any employees not to join the Union or made statements that membership in it would interfere with their employment. He testified that he advised his men that it was their privilege to join but, he admitted, "I told them my side of it, that I felt like it would be better to their advantage and my advantage not to be in it." Because in notifying employees of the October 4 pay increase Huss spoke of the "God-damned Union," because-as we point out below-he circulated a letter indicating that men em- :u The respondent excepted to our failure to declare in our Proposed Findings that Williams was a shift engineer , and hence a supervisory employee, on the ground that we made such a finding with respect to Clemon Scott, who occupies an identical position. See infra There is merit in this exception and we correct the findings accordingly In its exceptions the respondent fuither contends that since Williams , as a supervisory employee, is to be excluded from the unit appropriate for the purposes of collective bargaining , we must hold that Huss ' and Hollowell 's remarks were not made to him as an ordinary employee This exception implies that Hollowell and Huss , by expressing to Williams their disapproval of his attitude toward the Union , were seeking merely to prevent a supervisoi y employee from interfering with the exercise by other employees of the rights guaranteed them by Section 7 of the Act. Huss' statement, however, that the organizers would "take your money and leave you boys holding the sack" precludes us from so interpieting the evidence That Huss and Hollowell should have placed such a restraint upon a supervisory employee would, moreover, have been entirely inconsistent with the numerous anti-union statements made by them personally Consequently it is unnecessary to pass upon the legality of this conduct as an effort to prevent a supervisory employee from inteifeiing kith, restraining , and coercing ordinary employees in the exer- cise of their rights under the Act It suffices to say that a supervisory employee is not deprived of the protection which the Act affords him in the exercise of the rights guaran- teed employees by Section 7 either by reason of his supervisory status or by virtue of his exclusion from an appropriate bargaining unit. See Mattes of Pearlstone Pmintinq Com- pany, doinq' business as Pearlstone Printing cf Stationery Company and Allied Punting Trades Council, affiliated with the American Federation of Labor, 16 N L R B 636; cf. Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local Union No . 3, International Woodioorkers of Apinerica, 20 N L. It. B 1. u The circumstances and manner of granting the pay increases are discussed infra 540 DECISIONS OF NATIONAL LA13OR RELATIONS BOARD ployed elsewhere had been discharged for union activities,35 and because he admitted having made statements evincing his hostility to the Union, we find that he made the statements set forth above and those referred to in footnote 36.36 J. T. Joyner,3' an employee, testified that in December 1937, H. S. Guthrie, foreman of the meter gang, asked him about the "dollar and ten cents an hour" that he was receiving and, when Joyner dis- claimed any such earnings, said, "Well, I thought when you joined the Union, they paid you a dollar and ten cents an hour"; tliat when at approximately the same time he asked Guthrie about work,3E Guthrie intimated that he should execute an affidavit to the effect that he had withdrawn from the Union; and that when he wrote out such a statement and presented it to Batjer, Batjer stated that it was satisfactory, that he believed Joyner had withdrawn from the Union, and that "a man out of the Union (could) go a long ways with the company." Batjer and Guthrie both testified that in the conversations they had with Joyner the suggestion of a disavowal of union membership had originated with Joyner and that they had told him it was im- material whether he belonged to the Union or not. In view, how- ever, of the fact that Batjer was present and interposed no objection when Longley and Campbell spoke to Ray about the Union and of the fact that Guthrie subsequently took a leading role in the activity of the Committee and of the Association," organizations hostile to the Union, we find that Batjer and Guthrie made the statements attributed to them by Joyner. Late in January 1938, Schroeder, the respondent's vice president and general superintendent, received a communication on the letter- head of Lower Colorado River Authority, Austin, Texas, signed by S. W. McLain, which was directed to the respondent and four other companies. The letter mentioned five men who had "torn up the Buchanan Job and . .. put everything in trouble with this leader, Mr. Ingram, I. B. E. W. organizer;" stated that they (the five men) were proceeding to San Angelo, Abilene, and other cities to organize workers and call a strike; and contained the following warning: "So please be guided by the loss that these men and their families, are taking now. Just for a handful of so-called union men as they call themselves . . . Please watch out for these five men." Although Schroeder neither knew, nor conducted any investigation to ascertain, A( See infra °Huss made other anti-union statements which are set forth in the discussion of discrimination against Quinlan and Elder. See infra a' Cf. infra. sn Joyner had been temporarily laid off in November and was seeking reinstatement. so See infra WEST TEXAS UTILITIES COMPANY 541 who McLain was, he distributed to Whitaker, meter superintendent of the respondent, and to M. E. Pittman, manager of District H, photostatic copies of the letter, telling those men that it contained information concerning the company's operations which might be interesting, to them. ' Whitaker gave a copy of the letter to Huss, who passed it around the San Angelo plant, saying to employees, "Here, I want you to read this, see what them devils are getting you into . . . Them boys will tell you one thing, and do another .. . Look there, that is the kind of mess you are getting into, that is the kind of fellows you are tied up with." 40 On April 1, 1938, Schroeder told W. E. Thompson, concerning whom a charge had been filed with the Board, that he wanted to talk with him about it, that it would be better for his future "not to go through the discharge," that all the Board could do would be to transfer Thompson back to his former job, and that if he were so transferred the foreman would "fire" him at the first opportunity.4' In October 1937 the respondent, after a lapse of several years, resumed publication of its house magazine, "Electric Times." 42 Under the caption, "Facts you May Want to Know," the journal stated that "union recruiting agents regard the situation as `hot' for commission- pulling in new dues-paying members," that they (the union organizers) were making false and misleading statements, confusing to both em- ployers and employees, and that "complete knowledge of the facts is the only sound basis for intelligent action." This introduction was followed by questions with "answers by government officials" purporting to "give the facts about the Wagner law." The questions, which are all answered essentially in the nega- tive, are : Does the Law apply to workers in all Industrial plants? ... Does the Law require me to join and pay dues to a Labor Organization? ... If the Union members in my plant get enough of a following, can they force my employer to sign an agreement with the Union? ... Suppose my employer did want to sign an agreement with a Labor Organization, could they force me in and could they dis- criminate against me if I refused? . Does the bill destroy Company Unions? .. . Does the Wagner Act destroy the Open Shop Merit System? ... 4° Huss admitted that he had shown the letter to employees and did not deny having made the remarks set forth in the text a For similar conversations between Schroeder and Quinlan and between Campbell and wills, see intro 42 From the contents of this magazine , we infer that it is distributed to employees in all of the respondent's districts. 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The answers of "government officials" are supplemented with com- ments by the respondent that it is not engaged in interstate commerce, that it will take any steps necessary to guard itself and its employees against becoming engaged in interstate commerce, and that the Act gives employees the right to organize "in opposition to outside dues- collecting unions." This statement of facts concerning the Act is patently incomplete and distorted; while it meticulously points out that nothing in the Act compels employees to join outside unions, it almost wholly fails to give an exposition of the rights guaranteed to employees by the Act and of the unfair labor practices in which employers are prohibited from engaging. Indeed the article provided employees with scarcely any clue to the respects in which the re- spondent's conduct, before and after its publication, flagrantly contravened the Act. It is unnecessary, however, to determine whether the mere publica- tion of the article constituted an unfair labor practice,43 because for the purposes of this decision we need only consider it in conjunction with other activities of the respondent described herein. When so viewed, the publication of this statement manifests itself as one of the varied elements in the respondent's campaign to prevent employees from joining the Union. Consequently we conclude that under the circumstances of this case, the respondent, by publishing this -article, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed them by Section 7 of the Act. We find that by the anti-union statements set forth and referred to in this subsection, by circulating among employees copies of the McLain letter, by suggesting to employees that they withdraw charges against the respondent filed by them with the Board, and. by pub- lishing a distorted and incomplete account of the rights of employees under the Act with the intention of discouraging membership in the Union, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 2. Pay increases granted In his canvass of employee opinion, Stein, the construction superin- tendent, ascertained that some employees were dissatisfied With, the wages they were receiving. On October 4, 1937, Huss distributed pay checks to workers in the San Angelo power plant, stating that the as Cf, however, Matter of Nebel Knitteng Company, Inc. and American Federation of Hosiery Workers, 6 N L R B. 284, enf'd as mod , 103 F. (2d) 594 (C C. A. 4) ; Matter of Szmplex Wire and Cable Company and Cable Workers Feder at Local Union 21020, affiliated with the A. F of L, 6 N L R B. 251; Matter of Mansfield Mills, Inc and Textile Workers Ofganezeng Committee, 3 N L R B. 901. WEST, TEXAS UTILITIES COMPANY 543 checks contained a raise and that he wanted the employees to under- stand that "the God-damned union didn't have anything to do with it." In fact, however, the Union was the chief reason for the increase. Shortly before organization of the Union was started, Huss stated, in response to a request for a raise, that there was nothing he could do. Schroeder, moreover, admitted that the final decision to grant an increase was made after Stein had given hint a report of his trip to San Angelo. Furthermore, the pay roll for October 4, as originally made up, was based on the former wage scale. As the result of Stein's survey the respondent knew that the desire for increased compensation was one of the principal incentives in- ducing men to join the Union. The wage increase was intended to lessen the effectiveness of this basic appeal and thereby to diminish employee sympathy for the Union. We find that the respondent granted the wage increase in such a manner and at such a time that., under the circumstances, the action was intended to and necessarily did discourage membership and activity in the Union and that the respondent thereby interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed by Section 7 of the Act.44 3. Surveillance of union organizers, of employees, and of union activities Beginning in September 1937 company officials. including Longley, superintendent of transmission, Miles Turner, local manager at San Angelo, Whitaker, general meter superintendent, and Stein, con- struction superintendent, stationed themselves near the entrance to the union hall as employees assembled for meetings and frequently re- mained there until the meetings disbanded. For several months this happened on the occasion of every union meeting and it continued at least until February 1938. Schroeder, the vice president and general superintendent, admitted that some of his subordinates had informed him that they had seen certain employees going into union meetings. Since the respondent made no attempt to explain the presence of its officials in the vicinity of the union hall, we conclude that they were there to observe and to intimidate employees who attended the meetings. " See Matter of American Range Lines, Inc. and Marine Engineers, Beneficial Associa- tion, 13 N. L. R. B. 139; Matter of Roberti Brothers , Inc and Furniture Workers Union, Local 1561, 8 N L. R. B 925 , 930; Matter of Hercules-Campbell Body Co , Inc. and United Automobile Workers of America, Local #118, 7 N. L. R . B. 431, 434; cf. National Labor Relations Board v. American Potash and Chemical Corporation , et al , 98 F ( 2d) 488 (C. C. A. 9 ), cert. den , 306 U. S. 643, enf'g Matter of American Potash & Chemical Corporation and Boras 6 Potash Workers' Union No . 20181, 3 N L . R. B 140. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On November 25, 1937, Lawson Wimberly, international representa- tive of the Union, went to Quanah. When he registered at his hotel, the clerk pointed out Hollowell, the respondent's production superin- tendent, who was in the lobby, and said that he had been inquiring about Wimberly. Following Wimberly's arrival Hollowell, however, made-no effort-to speak.,to him. As. Wimberly drove around the city of Quanah to the residences of various employees, he was followed by Hollowell and Skipper, chief engineer of the, Quanah power plant, who remained in their car outside the residences while Wimberly went in. When Wimberly once asked Hollowell and Skipper why they were following him, Hollowell replied that they did not intend to allow the employees to be poisoned by union propaganda. A day or two after Wimberly's arrival, Longley, the respondent's transmission superintendent, who had been staying at the same hotel, moved into the room next to Wimberly's. On three or four occasions when Wimberly stepped into a telephone booth in the hotel lobby to make a call Longley went into the adjacent booth. On November 26, shortly after Wimberly had gone up to his room with another man, he heard' the door of the neighboring room open and close. Having become suspicious of Longley, Wimberly looked through a small crack over the door of the bathroom of his suite into Longley's room and discovered him standing on a chair, looking over another door between the two rooms. Hollowell, Longley, and Skipper made no effort to explain their con- duct in Quanah. We find, therefore, that Longley was spying on a union organizer; that Longley, Hollowell, and Skipper were shadow- ing or observing and attempting to intimidate the organizer and em- ployees of the respondent; and that the purpose of these actions was to discourage employees from joining the Union. Subsequent to January 1938, Guthrie, the District K meter foreman, asked Joyner if he knew where the Union was holding its meetings, stating that it had not met at the place named in a newspaper account. We find that by spying upon a union organizer, by the surveillance of and attempted intimidation of employees and of a union organizer,45 by the surveillance of union meetings, and by inquiring concerning the place where union meetings were to take place, the respondent inter- fered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. 45 The rights guaranteed in Section 7 of the Act are substantially diminished if an employer may interfere with the tree access of employees to unions or union representa- tives, even though those representatives aie not themselves employees. By surveillance, spying upon , and attempted intimidation of an organizer , the respondent interfered with the right of its employees to obtain nfoimation and assistance from a labor organiza- tion-a preliminary but nevertheless essential feature of the exercise of the right to "form, join , or assist labor organizations " See Matter of Harlan Fuel Company and United Mine Workers of America , District 19, 8 N. L. R B. 25 ; Matter of Ralph A. Freundlich, Inc, etc and Max Marcus, ct al, 2 N. L R B. 802. WEST TEXAS UTILITIES COMPANY .545 4. Election conducted by the respondent On April 14 or 15, 1938, the respondent held an election in the pro- duction, line, and service departments in the San Angelo and McCamey districts, purportedly to ascertain whether the employees wanted to be represented by a union. At the San Angelo plant an assembly of employees was summoned by Hollowell, the production superintend- ent, and Huss, the chief engineer of the plant, who told the men that the respondent wished an expression as to whether the men desired an organization or not; that the ballots, which they passed out, were not marked in any way ; and that the men could sign them or not as they chose. Hollowell and Huss stood by as the men cast their ballots. Since the respondent indicated both orally and on the ballot that the ballots might be signed, and since most employees signed their ballots, the vote was not secret. Employees, aware from other mani- festations that the respondent was opposed to the Union, could not, without fear of reprisal, vote in favor of or abstain from voting against the Union either by a signed or unsigned ballot. We find that the holding of this election under the circumstances and in the manner recited was an attempt by the respondent to discourage, and had the necessary effect of discouraging, membership in the Union, and that the respondent thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.46 In the April 1938 issue of "Electric Times" the respondent published an article which commenced as follows : LABOR ORGANIZERS MAKE NEWS IN SAN ANGELO, MccAMEY AREAS Even though the company claims it is not under the Wagner Labor Act, it offered to answer charges of union organizers to the National Labor Relations Board, particularly the allegation that the organizers had succeeded in enrolling a majority,of W. T. U. employes as paying members in production, line; aria service departments in the San Angelo and McCamey areas. The article continued that, in order to show that no question affecting commerce existed, employees "of their own free will expressed them- selves in secret ballots" and that "an enthusiastic expression on the 40 See Matter of Arthur L Colton and A. J. Colman, co-partners, doing business as Kiddie Kover Manufacturing Company and Amalgamated Clothing Workers of America, 6 N. L. R. B. 355, enf'd National Labor Relations Board v. Arthur J Colton and Abe J. Colman, Co-Partners doing business as Kiddie Kover Manufacturing Company, 105 F. (2d) 179 (C. C. A. 6 ) ; ef. Matter of The Heller Brothers Company of Newcomerstoien and Intei- national Brotherhood of Blacksmiths , Drop Forgers, and Helpers, 7 N. L R. B. 646, 657. 546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD issue was recorded"; that, although the ballots required no signatures, all but a few ballots were signed; that, by a vote of 41/2 to 1, employees in certain departments expressed their opposition to unionization; and that, in a subdivision of the production department where a union organizer had met with the most favorable response, the ratio was 21/2 to 1 in opposition to unionization. The circumstances and manner of holding the election were factors which-regardless of employee sentiment-made it virtually certain that the vote would result in rejection of union organization. The report in "Electric Times" stated that a preponderant majority had vote4,,4gainst ,l iion affiliation. In this article the respondent repre- sented'as an expression of the actual sentiment of its employees toward outside organization the result of an election in which they were not free to vote according to their desires. The effect of this misrepre, sentation was to minimize the Union's strength and, hence, to dis- courage employees from joining the organization. We find that by the manner in which the election results were published in "Electric Times" the respondent attempted to and did discourage membership in the Union and that the respondent thereby interfered with, re- strained, and -coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.47 B. The transfers, lay-offs, anul discharges -W. H. Wills started to work for the respondent in 1927. He was employed successively as an oiler, fireman, and engineer, and, after approximately 2 years, was placed in charge of the control room as a switchboard operator, at which position he served continuously for more than 8 years. When he was first employed, his salary was $90 a month, but lie received successive increases until by December 1937 it was $130 a month.'s In 1935 or 1936 Huss asked Wills whether he would take a job as relief engineer and Wills replied that, since that job would require him to work part time with the repair and main- tenance gang, he could not do it because lie was not qualified for and did not kno}v anything about that type of work.4" On September 16 or 17, 1937, Wills agreed to join the Union, and on October 5, 1937, he was installed as a charter member of Local 898. In September, Stein, the construction superintendent, asked Wills 41'i'he very phraseology of the article-that the respondent had offered to "answer charges" that the Union represented a majority of its employees-plainly irdmcated to employees the respondent 's hostility toward the Union. 48 01 October 4, 1937, employees at the San Angelo power plant received a $10 raise ,'i'hc record does not disclose whether wills' other increases were general or individual rOIt is appament that during wills' service as an "engineer " he was not required to do the type of work pei toimed by members of the repair and maintenance gang % WEST TEXAS UTILITIES COMPANY - 547 whether he had any complaints. Wills mentioned several matters and declared his belief that they could be satisfactorily adjusted only through the formation of a union. Shortly after October 5, during his regular 2-day rest period, Wills made a trip to McCamey to help or- ganize employees in District H. He was "active vice president" of Local 898 and since November 1937 has been in charge of the Local's activities.J° On September 18, 1937, Hollowell told Wills that, if the men joined the Union and organizers came to Abilene to talk to -the Company, the-respondent's officials would not "even talk to the sons of bitches." Following Wills' trip to McCamey, Hollowell asked him whether he was thinking of quitting and said, "Well, I heard you had been out at McCamey and had pretty good luck, and I thought maybe you were going in that kind of business." About Friday, December 3, Hollowell told Wills that, while lie did not know what the organizers were saying about the membership of the Union in Quanah and Abilene, "they don't have a danm one" at either of those places, to which Wills responded that it would not change his conduct if they had no members in Texas.-',' On Monday, December 6, 1937, following the last conversation de- scribed above, Huss informed Wills that lie was to be transferred to the repair and maintenance gang. Wills protested to Huss that he had previously told him of his attitude toward working with the 1 epair gang, that lie was afraid of that kind of work, and that he was not quallfiad to do it, but said that lie would do the best that he could.52 Wills was replaced on the switchboard by R. H. Stanley, who was first employed by the respondent on November 1, 1937, in the capacity of a motor repairman at McCuney.53 - The respondent maintains that Wills was transferred for`business reasons" having to do with the efficient and proper operation of the San Angelo plant and not because of his union activities.'' From the 60 Quinlan , who had been elected president of the local in October, was in November transferred from San Angelo to McCamey See tinfia "Out reasons for finding that Hollowell made these remarks are set forth, supra 52 It does not appear that any change was made in wills' rate of pay when lie was transferred Stanley was subsequently active in organization of the Committee and of the Associa- tion See infia ^r The amended complaint, dated December 12, 1938, alleged that wills was disctiniina- torily discharged about January 13, 1938 On December 19, 1938, the amended complaint was amended without objection to comprise the further allegation that wills was dis- criminatorily transferred about December 5, 1937 The respondent filed no answer to this supplemental allegation A substantially identical allegation, however, had been added to the original complaint on July 27, 1948, during the first hearing, and on August 6, 1938, the respondent had filed a supplemental answer alleging that wills' transfer was due to business reasons Since on December 19, 1938, the pasties agreed that the iecoid of the earlier beatings aught be'"considered as part of the record in the case, we shall treat the allegations of the supplemental answer of August 6 concerning wills as if they had been expressly renewed after the amended complaint was amended on December 19, 1938 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD evidence it appears that the respondent does frequently shift employees from one position to another. There is no proof, however, that an additional man was needed on the maintenance and repair gang. Nor, assuming that a man was needed for maintenance and repair work, is there any evidence that other men than Wills were unavailable. The testimony, moreover, far from showing that Wills was better qualified for such work than other employees, demonstrates that he had never done work of that type and that he considered himself unfitted for it. Wills was replaced by Stanley, who had been chief engineer of another power company and was undoubtedly qualified to perform many jobs at the San Angelo station. The respondent does not attempt to show, however, why it placed Stanley at the switchboard rather than at some other post; nor why, in order to create a vacancy for Stanley at the switchboard, it displaced Wills rather than an operator on one of the other shifts. The specific justification advanced for Wills' transfer was that his work had been deficient in a number of respects. It must be borne in mind, however, that while witnesses testified to approximately four offenses, only one of the four was ever called to Wills' attention, and he never was actually reprimanded for any of them. Not until January 20, 1938, when he was discharged, was Wills informed that his transfer had any relation to the manner in which he had been performing his duties. At that time Huss, the chief engineer, told Wills that lie' had been transferred for failure to cooperate with his fellow employees, the same explanation as he gave in his testimony. We shall discuss in detail the charges made against Wills at the hearing. In the first place, Otto Pirtle, a fireman, testified that on several occasions when he had telephoned to Wills, Wills had failed to answer. Although Wills denied that he had ever refused to answer his tele- phone, Pirtle's account receives corroboration from Scott's testimony that Pirtle had complained to him about Wills and that Pirtle and he had together tested the telephone to ascertain that it was ringing properly. Because of this corroboration we believe Pirtle'stestimony, rather than Wills' denial, worthy of credit. Although it nowhere directly appears that Wills was-or that he should have been-suffi- ciently near the telephone to hear it ring, we infer that it was his duty as switchboard operator to remain near the telephone. Secondly, Pirtle charged that on a number of occasions after he had given flow readings to Wills over the telephone, Wills hung up the receiver before Pirtle could give him the "boiler on and off." Wills stated that he had never hung up the telephone before the-fireman,' had finished giving him information. On cross-examination Wills testi- fied that Pirtle had refused to join the Union after having pledged WEST. TEXAS UTILITIES COMPANY 549- himself himself to do so, and he admitted that this had diminished his con- fidence in Pirtle "so far as (his) word was concerned." Pirtle testified that in 1930 he had had an altercation with Wills and that when he, Pirtle, after an absence of several years, returned to the plant in the fall of 1937, Wills would not speak to him or return his greeting. Wills' failure to deny that he would not greet Pirtle, together with the difference in their attitudes toward the Union, lends credibility to Pirtle's testimony. We find, accordingly, that on several occasions Wills terminated telephone conversations with Pirtle before Pirtle had given him all the information he desired to. Pirtle claimed that Wills would not call him to give him advance information of load pick-ups.65 He said, moreover, ". . . when I would call him, why, what he would tell me, why, he wouldn't pick it up like he said, he would-was going to pick it up, so I just figured he was telling me wrong, to try to put me off ; I didn't know." In tes- tifying before Pirtle took the stand, Wills answered affirmatively when he was asked on cross-examination whether it was necessary for him "to keep in touch with (the) engineer, and with (the) fireman, .. to advise them of the load that was coming on according to the dispatcher." Pirtle said that other switchboard operators gave him such information . Following Pirtle's testimony , however, Wills stated, again upon cross-examination, that "in ordinary operation" the fireman would know when a big load was to be ; picked up or dropped and that it was not the switchboard operator 's duty to tell him. Supporting, Wills' testimony that it was not his duty to com- municate ordinary variations to the fireman is the fact that Scott, the shift engineer , according to his own assertion , had memorized the load schedule , from which it follows that Pirtle, the fireman, might have been equally familiar with the ordinary schedule. This would explain why Wills did not communicate ordinary load changes to the fireman. There remains, however, Pirtle's undenied testimony that, after Wills had upon request given him advance load information, Wills picked up a different load increase from that which he had-said he would.56 It is, of course, possible that between the time that Wills gave Pirtle the advance information and the time that Wills picked up the load, the, dispatcher might have signalled a different pick-tip to Wills. In that event, however, Wills should have communicated the change to Pirtle. On the entire record we conclude that Wills was at fault in giving the fireman misleading information or in failing, cc The switchboard operator works in the control room of the plant, records meter read- ings, and controls the load on the turbine riom the dispatchers who are located at Abilene, ' Qttanah ,rand McCamey, he receives communications at frequent , intervals ,intlicatine anticipated changes in load ss when he switchboard operator actually changes the load he conunnuuater the increase or decrease to the engineer and the fireman by a dial signal system 288033-41-vol 22-36 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD after having once given the fireman information, to notify him of sub- sequent changes indicated by the dispatcher., Finally,. Scott complained that several times Wills had failed promptly to pick up the load according to schedule. Scott said that on one occasion when the 6: 15 pick-tip was 10 to 12 minutes overdue, he had walked into the control room and asked Wills whether the dispatcher had changed the load schedule. Wills said, "No sir," but proceeded to pick up and indicate on the dial system a load increase, although during the time that Scott was in that room no message was received from the dispatcher. Scott stated that on two occasions within the succeeding 3 or 4 days he noticed a similar delay but that before Scott "would get to the door" Wills had picked up a - load increase. Since Wills made no effort to explain or deny the conduct attributed to him by Scott, we find that on several occasions he failed to pick up the load according to schedule. This review of the evidence indicates that Wills was in several re- spects remiss in the performance of his duties. It remains for us to determine, however, whether his misconduct was the cause of his transfer or whether in assigning Wills to another job the respondent was motivated by consideration of Wills' union membership and activity..'' Upon the entire record we are satisfied that the shortconf- ings of Wills' work were not the actual reason for his transfer. In making this determination we bear in mind'the history of the respond- cut's continual efforts to discourage union activity, for this is a factor inseparable from the other circumstances which throw light upon the cause of the transfer. Wills was vice president of the Union and-following the transfer of the president, Quinlan-assumed the leadership of the organization. On three widely separated occasions Hollowell made remarks to Wills which unmistakably betrayed the respondent's disapproval of his union activities. The last of these conversations occurred but 3 days before Wills' transfer. In this regard it is significant that Huss did not effect the transfer of Wills without first consulting Hollowell. The record does'not disclose the date or dates when that consultation took place. On December 3, howeiver, when Hollowell spoke to Wills he was in San Angelo, presumably on one of his periodic visits to supervise the management of the power station. These considerations lead Lis to believe that the relation between the conversation of December 3' and the transfer of December 6 was causal, as well as temporal, in nature. 51 See Matter of Kelly-Sprinpheld Tire Company and Untied Rubber Workers of Antler ice, Local No 26, et al , 6 N L R B 325. 342 , where we said : "While proof of the presence of proper causes at the time of discharge may have relevancy and circumstantial bearing in explaining what otherwise night appear as a discriminatory discharge, such proof is not conclusive The issue is whether such causes in fact induced the discharge or whether they are but a justification of it in retrospect " WEST TEXAS UTILITIES COMPANY 551 A further fact, to winch we have already adverted, patently reveals that Wills' misconduct was not the cause of his transfer. Except for Scott's single inquiry concerning the change in the load schedule, no one-whether supervisor or fellow employee-ever expressed a word of complaint to Wills. That Wills was never criticized for his faulty performance, even though it had been called to the attention of Scott, Thames, Huss , and Hollowell, is persuasive evidence that the respond- ent attached little importance to it.58 We find that Wills was trans- ferred from the switchboard to the-maintenance and repair gang be- cause of his union membership and activity and that the respondent thereby discriminated in regard to his condition of employment to discourage membership in the Union, and restrained, coerced, and interfered with its employees in the exercise of the rights guaranteed in Section 7 of the Act. Wills worked with the repair gang on Monday and Tuesday, Decem- ber 6 and 7. He testified that on Tuesday he sustained an injury to his side and back in attempting to loosen a frozen steam pipe. Wednes- day and Thursday were Wills' days off. On Wednesday he consulted a physician and on Thursday he gave Thames, the assistant chief engi- neer, for delivery to Huss, a note from his doctor stating that he was injured. For a considerable period thereafter Wills was unable to .work and was confined to his bed most of the time. On January 13, 1938, while Wills was still in bad health, Campbell 'and Hollowell called at Wills' home and talked with him about his claimed injury and the compensation he desired for it. Campbell told Wills that he had "got (himself) into a mess." He said to Wills that his attitude was wrong and, shaking his finger in Wills' face, declared, "You have filed charges against the Company before the National Labor Relations Board. . . . You are fighting the Company." 58 Huss explained that he had not cautioned wills about his conduct because, since wills had been working on the switchboard fen 9 years , he did not think it necessary and because, moreover , wills "was not the type of man " lie could talk with We are convinced, however, that had wills ' offenses substantially intertered with operation of the plant, Huss would hate repumanded him Consequently we infer that wills' misconduct was not of a serious nature 69 Wills was named in the charge filed by the Brotherhood with the Regional Director on December 14, 1937 The respondent appears to contend that Campbell 's remarks concerning the situation In which wills had placed himself and concerning his attitude pertained solely to wills' conduct in seeking compensation for his claimed injury and not to the inclusion of his name in the charge filed with the Board That the remarks related at least in part to the charge filed with the Board is clearly indicated by the portions of wills ' testimony which we have summarized'or quoted . That testimony is uncontroverted , for Hollowell did not attempt to refute it in his testimony and the respondent did not present Campbell as a witness In cross-examining wills the respondent produced testimony concerning this 'conversation given by Wills in an action brought by him to recover compensation for the injury he claimed to have suffered on December 7 The respondent apparently believes that wills' testimony at the compensation tiial supports its contention that Campbell's remarks related solely to the matter of the injuiy We are unable to take that view, 552- DECISIONS OF NATIONAL LABOR RELATIONS BOARD On January 17, 1938, Wills' attorney filed with the Texas Industrial Accident Board a claim for compensation for total and permanent disability. Two days later Huss asked Wills to come to the power- house.' When in response Wills went there the following day, Huss told hiln that the Company had not been getting any cooperation out of him; that this had been the cause of his transfer to the maintenance and repair gang; that, according to the statement of the respond- ent's and of Wills' physicians, Wills' condition was not the result of an injury; and that "under those conditions" the Company did not any longer need his services.60 Thereupon Huss gave Wills his pay check, which comprised his usual salary up to January 16.61 We have already found that Wills was an extremely active union member. In September he was one of the first employees to indicate his willingness to join the Union. About that time Hollowell told him that the respondent would never deal with the Union. In Octo- ber he took a trip to McCamey to aid in organizing employees. With reference to this trip Hollowell later asked Wills whether he was leaving the Company's employ in order to go into the business of organizing unions. Following the transfer to McCamey of Quinlan'62 who had been elected president of the Local, the active leadership of the Union devolved upon Wills, its vice president. Early in De- cember Hollowell told Wills ,that, regardless of whatever claims the UniQu's, organizers might, be„mat ig, it„had nct,:lnelnber in Quanah or Abilene. Wills indicated that this information would not "change ,,him) any." When these conversations failed to discourage Wills from continuing his union activity, the respondent attempted to attain that end by transferring Wills to a job which the respondent's officials i new he did not want to fill. In view of Wills' extraordinary prominence in the Union and of the repeated endeavors made by the respondent to cause him to abandon his affiliatipn with that organization, we are strongly disposed to believe that he was discharged because of his union activity. The fact that on January 13, in speaking to Wills, Campbell mentioned the charge against the respondent which named Wills and told him however, for even in his testimony at the compensation trial, Wills declared that in then, conversation of January 13, Campbell had accused him of filing a charge with the Board. The fact that subsequently Schroeder, one of the respondent's chief executives, sug- ested to Quinlan and Thompson that they withdraw charges filed by them with the Boal'd (see snfra), supports the conclusion that Campbell was expressing to Wills the respondent's displeasure at Wills' acquiescence or participation In the filing of charges, and we so find. "Huss testified that on about January 13 he had decided to "drop" Wills because he had not reported back to work and because the respondent's physician (who died before she hearing took place), to whom Huss spoke at that time, reported that his examination r f Wills did not, disclose any signs of an accident but indicated rather that Wills' ill health eras due to a tubercular condition. UI The respondent customarily gives 2 weeks' salary, to persons leaving its employ. "Tins transfer, which is alleged in the complaint as an instance of discrimination, is discussed infra. WEST TEXAS UTILITIES COMPANY 553 that he had the "wrong attitude" and that he was "fighting the com- pany" corroborates and confirms this view 83 We are further impelled to this conclusion by consideration of the anti-union animus which characterized the respondent's behavior from the first signs of the Union's organizing efforts. In its, answer, to the,,amended' complaint the respondent. says : . . . the reason W. H. Wills ceased to work for it was because he claimed to have suffered an accident and' to be totally inca- pacitated for work and respondent further shows that at the time it notified the said W. H. Wills that his services would be needed no further he then was claiming to be totally and permanently incapacitated for the performance of any labor . . 64 We do not find the contention persuasive. Shortly before Wills sus- tained the injury which occasioned his claim, the respondent had trans- ferred him to a new and less desirable position because of his union activities. From the episode of January 13, when Campbell and Hollowell called on Wills, we infer that the respondent's antipathy to Wills' union affiliation had not abated. It was not necessary to dis- miss Wills from the respondent's employ in order to place some one at work in his stead; the respondent, in fact, had already filled his post at the switchboard and it does not appear that there was any lack of men to substitute for him on the maintenance and repair gang-6° While Wills' disability afforded an apparent excuse for his discharge, we are convinced that he would not have been discharged but for his union membership and activity. We conclude that the respondent discharged Wills because of his union membership and activity, that it thereby discriminated in regard to his tenure of em- ployment to discourage membership and activity in the Union, and that, it thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. Volney, R. Qurinalan, was employed by the respondent as mainte- nance electrician at the San Angelo power plant from April' 1928 to November 1937, and as appliance serviceman at McCamey from then until. July .1938. Having started,.to work at $125..-a month, he later received an individual raise of $5. Subsequently wage cuts during the depression reduced Quinlan's earnings to $120, but at the time 03 We find that, in mentioning the charge filed with the Board , Campbell intended to discourage Wills from pressing it and to induce him to withdraw it, and that by seeking to induce Wills to forego recourse to the means which the law affords employees for the protection'of their rights under the Act the respondent interfered with , restrained, and coerced Wills in the exercise of those rights. 64 It should be noted , however, that Wills' compensation claim was not filed until January 17, whereas-according to Huss-the decision to discharge Wills was made about January 13. See supra. 65 Cf our discussion of the maintenance and repair gang, is fra. 554 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD that his employment was terminated his compensation had risen to $140 a month.66 When Ingram, international vice president of the Union, first came to San Angelo he gave Quinlan some membership application blanks and Quinlan was one of the first and most active employees in the organization of the Union. Since October 5, 1937, Quinlan has been president of Local 898 and until November 22, 1937, when he was transferred to MeCamey, he took part in all union meetings in San Angelo. On many occasions in September Hollowell spoke to Quinlan about the Union, telling him, among other things, that the organizers were nothing more than "dues-collecting gentlemen that were going around and taking ... money for nothing" and that the respondent did not consider itself within the jurisdiction of the Board. On September 14 Huss asked Quinlan what he knew about the Union that was being organized and what he had to do with it; he said, "I want to tell you right now that we don't-I don't want any God damn union, and I am not going to have any God damn union," and warned Quinlan, moreover, that if he had anything to do with the Union he would discharge him. About September 20 Huss told Elder, another em- ployee, that he believed Quinlan was , the ringleader in the union campaign` and intimated that Quinlan would be discharged if he discovered that his belief was well founded. On November 22, 1937, Hollowell informed Quinlan that he would be transferred to McCamey. When Quinlan asked him the reason for the transfer, Hollowell said that Quinlan had not been "getting along." 87 Quinlan challenged Hollowell to say that the Union was the cause of the transfer, to which Hollowell responded by saying, "Well, you wouldn't want me to commit myself, would you?" The transfer was undesirable from Quinlan's point of view, because his family, consisting of his wife and two children, resides in San Angelo, because McCamey is a smaller city than San Angelo, and because its housing facilities are poor. Quinlan's position was filled by a non-union man and at McCamey Quinlan replaced Stanley, who had been detailed to San Angelo.- Hollowell'h-testifi6d that because ofrthe dissension and unrest at San Angelo he "borrowed" Stanley from the McCamey district in order "to have somebody available" ; in answer to a question as to what affirmative steps he had taken to eliminate the dissension, he said, 66 While there was a general raise of $10 at the San Angelo power station in October 1937 (see supra), it does not appear whether the wage cuts and the other increases were general or individual. 67 See infra. 69 See supra. WEST TEXAS UTILITIES COMPANY 555 "The only steps I took were to remove or transfer Mr. Quinlan and Mr. Grounds." 69 Upon Wills' being assigned to the maintenance and repair gang he was replaced as switchboard operator by Stan- ley.70 Thus the respondent, by three transfers, sent one active union man to a remote location, assigned another to undesirable work, and brought an outstanding non-union man into the San Angelo plant, which was the center of the Union's activity. In its answer to the amended complaint the respondent alleges that, as an. employee, Quinlan was subject to transfer,at any time. The evidence reveals that workers were not infrequently transferred from one point to another in the company's system. There was, moreover, at McCamey a vacancy which Quinlan was qualified to fill. The facts we have previously related, however, point strongly to the conclusion that the reason why Quinlan was selected to fill the va- cancy was that he had been conspicuously active in the Union. The testimony of the respondent's witnesses does not persuade us to the contrary. Hollowell testified that, in the fall of 1937, Quinlan had on several occasions told him that he could not "get along with" or "believe" Huss and that he had therefore thought it well to place Quinlan where he could work under more pleasant conditions. There is no evidence, however, that Quinlan's performance of his duties was affected in any way by the antipathy for Huss which he is said to have voiced to Hollowell. Indeed, until Hollowell told him of his conversation with Quinlan, Huss was unaware of Quinlan's asserted feeling toward him. Although in September a similar animosity towards Huss had been expressed by Wills to Stein, Wills was not transferred to a position out of Huss' jurisdiction. The record does not disclose that Quinlan asked to be transferred to McCamey and we infer that he did not.71 We are of the opinion, on the entire record, that Quinlan's asserted declaration to Hollowell that he could not get along with Huss was not the cause of his transfer to McCamey. In October 1937, prior to Quinlan's transfer, Pittman, manager of District H, told Schroeder, the vice president and general super- intendent, that he :needed a motor repairman. at McCamey. -Stariley- was hired and filled the job for a short period. As we have seen, however, Hollowell soon brought Stanley to San Angelo so that he 09 Grounds , who was financial secretary of the local union , was named in the original charge filed in this case but that charge was dismissed as to him on April 9 , 1938, by an order of the Regional Director. -0 Subsequently Stanley took a leading part in organization of the Committee and the Association See infra 71 Huss testified that at the time that lie learned of Quinlan's reported animosity, and sclely because of it, lie requested Hollowell to transfer Quinlan to another post 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD might familiarize himself with the work.72 As a consequence of Stanley's transfer another man was needed for the post of motor repairman at McCamey and Quinlan was given that post. In the previous paragraph we have discussed the asserted lack of harmony between Huss and Quinlan. No reason for Quinlan's transfer other than' this claimed friction was assigned or shown; the respondent-did not attempt to prove that Quinlan was better qualified than other men for the job at McCamey, nor that his work at the San Angelo plant was such that he could more easily be spared than other em- ployees. Upon the entire record we conclude that Quinlan was selected to fill the McCamey vacancy because he was the leader of the Union.73 We find that by the transfer of Quinlan from the San Angelo plant to McCamey, the respondent discriminated in regard to a condition of his employment to discourage membership in the Union, and that by this conduct the respondent interfered with, restrained, and co- erced its employees in the exercise of the rights guaranteed in Sec- tion 7 of the Act. On. December 16, 1937, a charge was filed with the Board' alleging the discriminatory transfer of Quinlan.74 In February or March 1938, Schroeder called Quinlan into the office of Pittman, manager of District H, who was present, and asked him what he intended to do about the charges which he had filed with the Board. After Quinlan said that he would allow them to follow the regular course, Schroeder asked Quinlan whether he knew what Duck Walker had done. Quinlan answered that he knew that Walker had written to the Board to request that he be permitted to withdraw the charge which had been filed in his behalf; Schroeder told Quinlan "that the Board . . . could force him to send (Quinlan) back to Angelo, but that (he) would never get along there"; and Quinlan responded that under these circumstances he did not care to go back to San Angelo until "changes had been made that would justify (his) going back." On July 15, 1938, Quinlan asked Pittman whether he could go on a vacation, and, -after some discussion, Pittman said that, Quinlan could take 7 days and traveling time. Pittman testified that he had instructed Quinlan to make arrangements with his foreman, W. M. ,2 Cf. supra 12 The Union was seeking to organize employees at McCamey as well as at San Angelo. It had its greatest concentration of strength at the San Angelo power station. Union meetings seem to have been held in San Angelo rather than in McCamey . The plant at San Anglo, moreover , is the principal source of energy for the respondent 's system. By transferring Quinlan to McCamey the respondent not only removed an active union man- ihe president of the Local-from the place where organization was most advanced, but also gave employees an illustration of the treatment that they might expect if they joined or became active in the Union. 74 See supra. WEST TEXAS UTILITIES COMPANY 557 Edwards, concerning the date of his leave.' Quinlan, on the other hand, testified that he had received no such instructions and that he had informed Pittman of his intention to begin his vacation the following week end. Without notifying Edwards that he was going to commence his vacation , Quinlan left McCamey after work on Saturday, July 16, and went to San Angelo , taking with him his personal effects and some tools which he ordinarily kept in his "bunk house" at Mc- Camey. Sunday was Quinlan's day off but, when on Monday he-did not appear for work, Pittman and Edwards ascertained that he had taken with lint the articles which he customarily kept at McCamey. Edwards temporarily substituted for Quinlan first a clerk and sub- sequently W. A. Hale, a lineman ,"' while Pittman asked Dan Whitaker, the meter superintendent , to send a permanent replace- ment from Abilene. Hardin, the substitute, arrived about Friday. On Saturday , July 23, Quinlan , having heard rumors , that he had been discharged , returned to McCamey and asked Pittman "what it was all about." Pittman told Quinlan that it had been necessary to send to Abilene to get a replacement for him . Quinlan there- upon asked whether he was discharged . According to Quinlan's testimony , Pittman said that he was ; but Pittman testified that he told Quinlan that lie "didn 't fire him, that he had quit." In its supplemental answer 77 the respondent makes the following assertions with reference to Quinlan 's discharge : Respondent denies each and every allegation to the effect that it did discharge Volney Quinlan on or about July 23, 1938. Re- spondent says that if the employment of Quinlan with the Respondent ceased on or about that date, the same was the result 75 While Pittman testified that on previous occasions Quinlan had failed to consult Edwards when he took leave of a day or two, his testimony does not clearly indicate that there was more than one such incident. Quinlan admitted that he had once gone to San Angelo without making ariangements with Edwards, but it appears that upon his return he explained to Edwards' satisfaction why he had not consulted him before leaving 'Although Edwards, the line foreman, testified that Quinlan's departure left him short- handed because two men weie on vacation and one was attending a funeral, W. A. Hale, the lineman who temporarily replaced Quinlan, testified that while he was working at Quinlan's job he was not busy. Hale, moreover, was permitted to take a vacation which commenced on Thursday afternoon, July 21 ' The amended complaint, dated December 12, 1938, alleged that Quinlan was dis- criminatorily transferred about November 28, 1937. On December 19, 1938, the amended complaint was amended without objection to include the further allegation that Quinlan was discriminatorily discharged about July 23, 1938. The respondent filed no answer to this supplemental allegation A substantially identical allegation, however, bad been added to the original complaint on July 25, 1938, during the first hearing and on August 6, 1938, the respondent had filed a supplemental answer containing the assertions quoted in the text. For the reason set forth in note 54, supra, we shall treat the allegations of the supple- mental answer of August 6, concerning Quinlan as if they had been expressly renewed after the amended complaint was amended on December 19, 1938. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the voluntary act of the said Quinlan and it shows in particu- lar that it did not cause such employment to cease because of any activity of the said Quinlan in connection with any labor union or in connection with the organization of any labor union. While thus, in effect, the respondent alleges that Quinlan quit, and while Pittman claims to have told Quinlan on July 23' that he had quit, we believe that the termination of Quinlan's employment can- not be so explained. Quinlan had been employed by the respondent for 10 years and, in so far as the record discloses, had never spoken of leaving the respondent's employ. Pittman, moreover, had given Quinlan permission to take a vacation and therefore had reason to suspect the actual cause of Quinlan's absence. Under the circum- stances, it would have been so unreasonable to have reached the con- clusion that Quinlan had quit that we are satisfied that neither Pittman nor Edwards drew that inference. We conclude that Quin- lan was discharged. Quinlan testified that on July 23, when questioned about his failure to consult Edwards, he told Pittman that he had the latter's per- mission to start his vacation on Monday, July 18.78 He expressed the belief, moreover, that his disagreement with Pittman as to whether he should have spoken to Edwards was due to an "honest misunderstanding" 79 which had arisen from their conversation of July 15. Pittman and R. E. Ruble, chief clerk of District H, testi- fied, however, that on July 23 Quinlan said that he had not talked to Edwards because he knew that the "son of a bitch" would not give him permission to go on his leave. Since Quinlan failed to rebut this testimony of Pittman and Ruble, we find that he made the remark; and from this and other facts we conclude that he should have spoken to Edwards before going on his vacation. The evidence does not demonstrate, however, that his failure to do so was the cause of the termination of his employment. Despite the fact that Quinlan had been employed by the respondent for 10 years, the respondent upon his absence from work made haste to secure a permanent replacement for him-although, since Hale was not busy during the period that he temporarily replaced Quinlan, it appears that there was little work for such a person. On July 23 Quinlan asked Pittman whether he could go back to work on the following Monday. Pittman replied that he "had a Ivan in his place, and . . . didn't want to make any more changes." Pittman denied that in refusing to continue Quinlan's employment he had given any consideration to his union activities. We are of the opinion, how-! 73 July 18 was the first working day that Quinlan was absent. " In its exceptions the respondent urged that "honest misunderstanding" referred to the entire discharge, but we do not so construe the testimony. WEST TEXAS UTILITIES COMPANY 559 ever, that although Quinlan was remiss in failing to make arrange- ments with Edwards for his vacation, a less severe penalty than discharge would have been meted out to him had he not been a mem- ber of and active in the Union."" We cannot lose sight of the fact that the respondent had repeatedly ende'avvoied to cause Quinlan to abandon his union activities. In the fall of 1937 Hollowell and Huss had expressed to him disapproval of the Union and Huss had made it known that Quinlan would be discharged if it appeared that he was the "ringleader" of the organ- izing campaign. When these tactics were unsuccessful the respondent attempted to render Quinlan's organizing efforts ineffective by trans- ferring him from San Angelo to McCamey. Subsequently, after the Union had filed a charge with the Board alleging that this transfer was discriminatory, the respondent had tried to make Quinlan with- draw the charge. Bearing in mind the numerous ways in which, ever since September 1937, the respondent had expressed its bitter hostility towards the Union, we conclude that Quinlan was dis- charged because of his membership and activity in that organization on an occasion when his failure to make proper arrangements for his vacation afforded an apparent justification for it. Upon the entire record we find that by discharging Quinlan the respondent discriminated in regard to his tenure of employment in order to discourage membership and activity in the Union and thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. G. L. Yarbrough worked for the respondent as a ground man on a line crew from October 1929 until the latter part of 1932, when lie was laid off because of lack of work; he again worked for the respondent, serving as an operator in the waterworks, for several months in 1933; and from 1935 until November 1937 he served as a ground man on the distribution crew. Yarbrough joined the Union on October 5, 1937, and attended meetings regularly. In November 1937, Yarbrough was transferred to the "cut-off list" 81 by Ferguson, the District K distribution superintendent, who told him that Guy Rutherford, district chief clerk at San Angelo, wanted to borrow him for a time. He remained at that work until about February 11, 1938, when Ferguson laid hun off, telling him that work was slack. Yarbrough inquired whether he was being laid off because of the Union and Ferguson replied, "Let's don't talk about the union" ; and when Ferguson pointed out that two new 80 Although Quinlan's name was not removed from the pay roll until July 23, we find that he had in effect been discharged earlier, for Hardin had arrived about July 22 to replace him permanently. ° bi Men working on the "cut-off 'list" attempt to collect delinquent accounts and, where unsuccessful, disconnect the customers ' service - 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ground men were being retained, Ferguson said he had a right to select the men who were to work for him. Neither of those men was a member of the Union. Yarbrough's work was satisfactory and he had received no complaints about it. The respondent contends that Yarbrough was hired as an extra man and was laid off because there was insufficient work to warrant keeping him. Batjer stated that Yarbrough would have been laid off in November but for the fact that another employee, who was to have been assigned to the "cut-off list," had been disabled by an infected hand and that Yarbrough was willing to use his own car for the work. When this employee was again able to work, Yar- brough was replaced by him. At about this time the respondent had reason to suspect that one of its employees had given some information to an attorney who was prosecuting a claim against it for the wrongful death of a man who had been electrocuted on its power lines. On February 18 or 19 the respondent learned that Yarbrough had recently asked Ray, an employee, what attorney represented the plaintiff in the electrocu- tion matter. A day or so later Yarbrough admitted to Ferguson that he had conferred with the attorney because he thought "the company had done him wrong, and he wanted to get even," but said that he was `-`sorry" he had done s0.112 Ferguson testified that prior to February 18 or 19 no opportunity to reengage Yarbrough had arisen. Batjei stated that, because of the disloyalty manifested by Yarbrough in offering information to the attorney, the respondent was not disposed to rehire him, although it retained his name on a list of persons eligible for reemployment. Yarbrough's union activity, in so far as the record discloses, was not such as to render him especially conspicuous. His employment had been irregular and, while two men with less seniority were retained on the ground crew at the time that Yarbrough was laid off, the respondent did not purport to observe a seniority system. We deem it credible that it was because of Yarbrough's offer of informa- tion to a party adverse in interest to the respondent that the re- spondent did not reinstate him.83 We find that Yarbrough's union -membersliip and activities were not the cause of his lay-off- or of the respondent's failure- to reinstate him. R. S. Elder was employed by the respondent from February 9, 1928 to April 19, 1938. After working several weeks as an oiler, he was assigned to maintenance work, in which capacity he remained until his discharge. Initially he received 40 cents an hour, but "' At the hearing Yarbrough admitted that he had hoped to receive "a little money" for the information which he had offered to communicate to the attorney. 13 In so far as the record discloses , Coward--who is discussed infra-was the only man hired after Yarbrough 's lay-off to do work which Yarbrough was qualified to perform. WEST TEXAS UTILITIES COMPANY 561 before the end of 1928 he was placed on a monthly salary of $115 and in 1938 he was earning $150.84 Elder joined the Union on October 5, 1937, and was a member of its executive board. On September 20, 1937, Huss asked Elder whether he had heard the talk about a union and said, "They sure will be in dutch with the company, there will be plenty of trouble, and if they get it there will be a lot of faces missing around here ." 85 On September 20 Hollo- well said to Elder, "Roland, I want you to know I appreciate the attitude you have taken in this trouble we are having ... I under- stand you are not for it, if I have been rightly informed"; and, when Elder replied that he had promised to join when he was shown that it majority of the plant employees favored the Union , Hollo- well replied , "Well, you don't have to join." On October 4 Huss, in handing Elder his check , said that it included it $10 raise, that he wanted him to understand that the Union "did not have a damn thing to do with it," that he did not appreciate the way Elder had been talking around the plant, and that he thought that Elder was "undermining " him. When Elder expressed the hope that he would he successful in organizing the Union and asked Huss how that would injure him, Huss responded that he had been working at the plant for a long time and that if there were a union he would have to do some things that the men would not like. The respondent permitted its employees to take for personal use waste gasoline which had served to clean machinery but did not per- mit them to take fl esh gasoline for such use. In January 1938, ac- cording to their testimony, Stanley se and R. E. Long,"' employees hostile to the Union, observed Elder taking some gasoline which one of them declared to be clean and unused ."" Long made a written re- port of this to Huss. Moreover, Stanley,. Chief Engineer Huss, As- sistant Chief Engineer Thames, and Morgan Jett, another employee, testified that they had observed similar occurrences from April 4 to April 11.89 84 Employees at the San Angelo power station received an increase of $10 on October 4, 1937, but the record does not reveal whether the other increases were individual or general. I-, See also Huss' remark to Elder about Quinlan, supra. 88 See supra. 81 Long was subsequently active in the formation of the Committee . See snfra 84Although Long claimed that he had never before seen a fellow employee taking gasoline for personal use, he said that this was the first time in his 17 years of emplo}went with the respondent that he had made an "affidavit " about a fellow employee ^ Stanley asserted that he had seen Elder take gasoline on Apnl 4 , 6, 8, and 10 , Huss and Jett that they had seen Elder do so on April 10 and 11 , and Thanes that he had witnessed such an occurrence on April 10 Elder admitted that about Februaiy 1938 , after finishing sonie work at the low-lift pump house-to which he had driven in his car-and because by using his car he had saved time for the respondent, lie had poured into his car about i/2 gallon of gasoline which remained from the supply he had taken with him in order to work on the pumps Since the pump house is situated about a mile from the power plant, it is clear that this incident was not one of those referred to by Stanley, Long. Huss, Thames, or Jett 562 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD On April 14 or 15, as we have found, the respondent conducted an election among the employees at the San Angelo power plant for the ostensible purpose of determining whether they wanted to be repre- sented by a union in their dealings with the respondent. A few min- utes after the balloting terminated Hollowell approached Elder and said, "Roland, I noticed several of you talking over there after this ballot was going on. I wonder if you were talking about this ballot?" When Elder replied affirmatively, Hollowell declared that such a con- versation might prevent the respondent from getting a true expres- sion of its employees' desires, adding, "Of course, you boys can do some things we can't, the company couldn't do." This colloquy, af fords a clear indication that in April the respondent was aware of Elder's continuing interest in the Union. On April 19 Huss summoned Elder to his office and told him that it was reported that he had been taking gasoline which belonged to the respondent. Hollowell, who was present, told Elder that it would be better to resign than to be discharged and that he would like to be in a position to give Elder a reference in case he applied for a job elsewhere. Elder, having requested time to consider what action to take, returned after several hours and refused to resign, where- upon he was discharged. In relating these occurrences, Elder did not, upon direct examina- tion, clearly testify that he had at either conference on April 19 de- nied the charge made against-him, although subsequently, at the end of his cross-examination, he declared that he had. Huss and Hol- lowell testified that Elder made no denial to them. Moreover, Elder admittedly did not ask for the source of the report. We are of the opinion that Elder was observed taking small quantities of gasoline. We believe, however, that this was not the cause of his discharge. The respondent's continually expressed opposition to the Union constitutes the background against which the evidence relating spe- cifically to Elder must be evaluated. From that evidence we-have found that in September 1937 Huss and Hollowell made clear to. Elder the respondent's opposition to the Union and, sought to per- suade him not to participate in its activities. In October Huss at- tempted to discourage Elder from talking in favor of the Union to other employees. When the Union received its charter Elder be- came a member and at that time or later was elected to its executive board. In April Elder was still an officer of the Union and, we have found, the respondent was aware of his continuing interest in that organization. Elder had been employed by the respondent for 10 years and had received increases in pay. No complaint was made as to his work. The first information concerning his misconduct came from persons with a strong antipathy for the Union. That the respond- WEST TEXAS UTILITIES COMPANY 563 ent did not accord to an employee of 10 years' standing a warning when it first obtained knowledge of his conduct but instead took pains to obtain written proof that Elder was engaged in a minor peculation, causes us to believe, despite denials by Huss and Hollo- well, that the respondent utilized Elder's misbehavior as a pretext for discharging an active union employee.- We find that by dis- charging Elder the respondent discriminated against him in regard to his tenure of employment to discourage membership in the Union and that it thereby interfered with, restrained, and coerced its em- ployees in the exercise of rights guaranteed in the Act. J. T. Joyner was employed by the respondent "off and on" from 1928 to October 1938. In the summer of 1937 he was working with a line crew; he was laid off in November because of lack of work but in December he was given a few days' work putting up Christmas stringers; and at the end of December 1937 he was employed to work with the meter gang, being told at that time by Guthrie that the work was temporary and might last a day, a week, or a year. The last employment was in connection with a special project of removing meters from locations inside customers' buildings to more accessible outside locations, for which project the respondent had allotted limited funds. Joyner became a member of the Union on October 5, 1937, and was subsequently active in it ; although he attended no meetings during the first 7 months of 1938, he subsequently went to them and was a member at the time of the third hearing. We have previously made findings concerning anti-union statements made to Joyner by Batjer, the district manager, and Guthrie, the meter foreman, and concerning the assurance which he gave them, upon their suggestion, that he had withdrawn from the Union.91 On August 27, 1938, Batjer informed Joyner that since the funds for the meter project were exhausted, and that since an employee mimed Jones- was coming back-to San Angelo from Dalhart, the re- spondent would have to lay Joyner off more or less permanently. when, Jones returned. At that time Guthrie told Joyner that he would let him know if any opportunities for employment arose following his lay-off. Following several unfulfilled predictions of Jones' arrival, he returned to-work with the meter gang in San Angelo in October and Joyner was laid off. Jones, who was not a member of the Union, had worked for the respondent for 8 years. In 1935 he was transferred from San Angelo to Dalhart to become chief meter man for District D. In April or 90 See Matter of Titmns Optical Company and Optical Workers Union, Local No 20682, 9 N L R . B 1026 , 1036; Marathon Rubber Products Co. and Frank Reindl, et a] , 10 N. L R B 704, 714; Hearst Consolidated Publications , Inc. and Baltimore Newspaper Guild, 10 N L R. B 1299, 1314. 91 Supra, III, A, 1. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD May 1938, Batjer learned from Whitaker, the meter superintendent, that the Dalhart climate was injurious to the health of one of Jones' children and a decision was reached to bring Jones back to San Angelo about the time that school would open. Whereas Joyner was qualified only to install meters, Jones had the additional capacity to test and repair them.°2 Following Joyner's lay-off all outside meter work was performed by two members of the meter gang, Van Zandt and Good- win. Van Zandt had been in the respondent's employ for 15 or 20 years and in the meter gang for 3 or 4; Goodwin had worked for the respondent prior to 1928 and since 1935 and had spent 2 years on the meter crew. The respondent.had no need for an additional "outside" meter man and Jones spent the major portion of his time repairing and testing meters. In November and December 1938, Wayne Coward, a non-union man, received 12 or more days' employment as an extra ground man in the distribution department. It is not clear from the record whether he had previously worked for the respondent in San Angelo or at any other, place but, in any event, it appears that for several years he had not been in the respondent's employ. Joyner was qualified to do the work for which Coward was hired. The complaint alleges that the respondent discharged and refused to reinstate Joyner because of his union membership and activities and because he testified during the first hearing in August 1938.°3 In De- cember 1937, however, when Joyner was hired, he was told that he was being engaged for special work of uncertain duration. His em- ployment was not terminated until 2 months had elapsed from the day that he originally testified in these proceedings. Significant, too, is the fact that when Joyner was hired in December 1937, he was told that he was being engaged for specialized work of a temporary nature. Jones, moreover, who returned to the meter gang at the same time that Joyner was laid off, was required and able to do certain work for which Joyner was not qualified. Finally, while Joyner could have performed the work for which Coward was engaged, Coward was hired to work ila the distribution department under the supervision of Ferguson rather than in the meter gang under Guthrie. Thus, al- though in August Guthrie had told Joyner that he would inform him following his prospective lay-off if there was any work, the need for a man arose in a section distinct from Guthrie's. We find that by lay- ing off and by not reinstating Joyner the respondent has not discrimi- !-Flom Itecember 1987 to Tune 1938 the repairing and testing of meters was done by the "peilodic testing ci ew ," which was operating in the San Angelo district during those months; from .June until Jones ' arrival this work was performed by Guthrie ' , Jovuei's testimony related to several anti -onion statements made to him by Batjer ;nod Guthrie, to Batter's suggestion that it would be helpful to Joyner in his attempt to :set woi k if lie would give the respondent a iN ritten statement that he had withdrawn from the Union , and to Guthi ie s request for information about the place where union meetings wide held WEST TEXAS UTILITIES COMPANY - - 565 nated in regard to his hire or tenure of employment to discourage, membership and activity in a labor organization or because he had given testimony under the Act. C. The Committee aiul the Utilities Workers Protective Association We have hereinabove found that, from the time that the respondent's employees began to evince in in the Union, vigorous repressive, measures were taken to, prevent them from belonging to that organi- zation. Managerial and supervisory employees exercised surveillance over union activities. They disparaged the Union, advised workers not to.belong to it, and threatened them with discharge if they became members-threats which were not idle, for in pursuance of them Wills and Quinlan were transferred and subsequently they, as well as Elder, were discharged .94 The inevitable effect of the respondent's persistent and open opposi- tion to the Union w-as to deprive its employees of the right to select an outside labor organization, and more particularly the Union, as a col- lective bargaining agency, and to restrict, their choice-if they cared , to. organize-to -some other form of collective representation.°' More- over, in October 1937, through an article in the house organ, "Electric- Tunes," the' respondent substantially suggested that its' employees form' , an unaffiliated union. In that article, while giving employee's` an in- complete statement of facts concerning the Act,96 the respondent pointed out that they could organize a shop committee or plant-limited union "in opposition to outside dues-collecting unions." 97 It was in this setting that the Committee was formed in July 1938, a week or 10 days before the opening of the first hearing iii this pro- ceeding.98 About July 13, a group of non-union employees at the San Angelo power plant and water works,99 including Clemon Scott, a shift engineer and supervisory employee,100 and R. H. Stanley, the switch- °; The respondent's other anti-union activities are set forth in our findings in Section A, supra. ,,^. °5 See Hatter of The Falk Corporation and Amalgamated Association of Iron, Steel and Tin Workers of North America, Lodge 1518, 6 N. L R B 654, enf'd, N L R. B v- Talk Corporation, 308 U S. 453, 60 S. Ct. 307 - 90 See supra = B7 Although this advice was published 9 months before the Committee was foinied as hereinafter discussed, we cannot assume that it failed to have its obviously intended effect especially since Stanley, one of the leading fignies in organizing the Committee, testified that as early as November 1937, when lie was transferred to San Angelo, and "tor months" prior to July 1938, non-union employees had been talking about banding together in some way to protect their jobs D8 About the time that the Committee was organised, a union membei at the powci plant stated that, after the beaming, "things would be quite it lot different" and that it was the Union's rule for everybody on the job to either get in or get out" b° The respondent on ns and operates the San Angelo water-supply system The ww atei works are situated 300 or 400 yards from the po«ei station 100 Schioedei, the iespondcnt's vice president and general superintendent, testified that the duties of a shift engineer are laigcly snpcivisory and that he is the toieman on his, shift Thee are at the San Angelo power plant 21 employees, exclusive of the chief engi= neei, the assistant chief engineer, 3 shift engineets, the plant clerk-chemist,'the main- 283033-41-vol. 22-37 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD board operator who had replaced Wills,l01 held informal discussions and selected six or seven of their number to consult James P. Farrell, an attorney who had been suggested by Stanley, concerning steps which they might take to make known their desire not to be represented by the Union. Farrell recommended that the Committee be formed to intervene in this case and, with the men's aid, drafted for circulation among the employees a petition containing an authorization for the Committee to act as a collective bargaining agency.102 Among the seven employees who were selected-without any formal election or meeting-to serve on the Committee were Scott and-Stanley, and they, moreover, were active with others in the solicitation of signatures to the petition 103 Scott also kept some or all of the financial records of the organization. On July 20 Stanley made a trip to McCamey 101 where he received the aid of Foreman J. M. Poe and utilized the com- pany's long-distance telephone system 105 in calling a meeting of em- ployees at which the Committee was explained and a copy of the petition circulated. On August 4, at a meeting of employees attended by 34 persons who had signed the petition,106 H. S. Guthrie, a foreman'107 was tenance and repair gang , the nightwatch inan , and it yardman Piesumably , therefore, each shift engineer supervises at least 7 employees 101 See supra 102 The petition not only contains this authorization but recites the benefits accorded to employees by the respondent ; declares that the Union has made misleading statements and that the respondent's employees do not want to be associated with it ; and cites the signa- tures on the petition , as well as the results of the election conducted by the ., respondent -in, April , as proof that the union members constitute it minority of the respondent 's employees in Districts H and K. 103 Some solicitation of signatures was carried on by employees on company property dur- ing working hours . While Chief Engineer Huss was nearby Shift Engineer Scott asked w A. Camfield to sign the petition ; moreover, one of the persons solicited on company time and property was Ray , a foreman who belonged to the Union. Other than this, how- ever, there is no evidence that solicitation on company time and property was observed by supervisory employees. 104 This trip was not made on company time 105 Hollowell, the production superintendent , testified that the telephone system "is not supposed to be used , except for the conduct of business " It does not appear , however,-that any supervisory employee observed Stanley's use of the telephone. 10 Included among the 90 persons whose names appear on the petition are Scott and It. A McMillan, shift engineers whom we have found to be supervisory employees,; and J. M. Poe and H S. Guthrie , both of whom 'are foremen . Moreover , three'ldcal,managers signed the petition : N. It. Kennedy of Eldorado , where the ,respondent also employs it cashier and a laborer-yardman ; Tom Onstott of Sterling City, where there is a cashier and a janitor-laborer , and W. R Parsons , of Sonora , where a cashier , a linenan-service- man, and a janitor-yardman are employed . District Manager Batjer testified that local managers "do the meter reading, account for the collections , make weekly or monthly reports, . . handle everything connected with the company 's business at their locations, which does not involve a question of policy . .."-and, subject to the advice of the district distribution superintendent , supervise the distribution line employees in their areas Since it is apparent from this testimony that the local managers are in charge of their local offices , we find that they are supervisory employees 107 Batier testified that Guthrie is it foreman Ile makes recommendations with respect to hiring and discharging employees , which Batjer follows in so far as possible ; it is-his duty, moreover , to report inefficiency or insubordination on the part of `the three men who work under his supervision regularly except for several days a month when two of them are "detached" to do meter reading N WEST TEXAS UTILITIES COMPANY 567 elected to preside. Five union members came to the meeting and were permitted to present arguments in favor of their organization. A. S. Ray,1011 one of the union members, asked leave to bring Wimberly, international representative of the Union, to address the meeting, but Stanley opposed Ray's request on the ground that Wimberly had been instrumental in bringing a charge against the respondent and for the. further reason, which was also voiced by Guthrie, that Wimberly was; an "outsider." Thereupon Guthrie called for persons in favor of- allowing Wimberly to talk, but no one responded. When someone suggested that a constitution and bylaws committee be appointed, Guthrie nominated Stanley as chairman and four other persons as members and the meeting confirmed the nominees without dissenting vote. In the latter part of August, Stanley was elected president and Guthrie vice president of the Committee. On October 11, 1938, fol- lowing a number of meetings held to consider a draft prepared by- Stanley's subcommittee, the organization adopted a constitution and thereby became the Association. Officers of the Committee continued to serve as officers of its successor, but they were supplemented by an elected executive board of five members, one of whom was Scott_ Stanley testified in December 1938 that meetings of the Association had been held at San Angelo and that a local had been established at McCamey.109 However, due to the pendency of these proceedings, no effort was made to bargain collectively with the respondent. We, pass to a review and evaluation of the respondent's conduct hereinabove,described. In the first place, the resporiderlt.by:its. out- spoken and persistent hostility to the Union effectively denied the employees the right to representation by an outside union, and induced and encouraged employee opposition to an organization of that type. Secondly, at a time when the Union had thus been proscribed, the' respondent indicated to its employees through its house organ, "Elec- tric Times," that they were free to form an inside union. Thirdly, the respondent,-through a number of supervisory employees-took part in the formation and administration of the Committee and its successor, the Association. As we have seen, Scott participated in the initial July discussions which led ' to designation of a committee to consult Farrell; became a member of the Committee; signed and' solicited signatures to the petition; kept the Committee's financial records; and subsequently was elected to the Association's executive board. Guthrie signed the petition ; presided at the meeting of August 108 Ray is a foreman Cf supra, footnote 32 109 Although employees in District G. as well as in Districts H and K, are eligible to join the Association, the record does not disclose that any effort has been made to solicit their membership. 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 4; in that capacity appointed a. subcommittee to draft a constitution, and, moreover, voiced opposition to permitting Wimberly to speak; and later became vice president of the Association. Poe helped assem- ble employees for the meeting at McCamey, and, furthermore, signed the petition, as did E. A. McMillan, a shift engineer"' at the San Angelo plant, and three local managers." We find that the respondent, through its opposition-on the one hand-to an outside union and its approval-on the other hand-of an inside organization, created a favorable situation for the forma- tion of the Committee and that it thereby interfered with and lent aid to the establishment of that organization. Similarly, through the participation of supervisory employees in the activities of the Com- mittee and the Association, the respondent dominated, interfered with, and supported the inside organization. The latter fact is brought into sharp relief by the respondent's conduct when employees of simi- lar status joined or displayed sympathy for the Union. In that con- nection we have seen that Transmission Superintendent Longley told A. S. Ray, a foreman with duties comparable to Poe's, that if he owned a business, he would discharge an employee who- joined a union. Similarly both Hollowell and Huss made it clear to C. J. Williams, a shift engineer'112 that they did not approve of his attitude toward the Union and Huss baldly told him, "If it ain't stopped, I am going to fire every damn man in here . . ." The respondent and the Association contend that the respondent is not responsible for the activity of Scott and Guthrie in relation to the Committee and the Association.111 In support of this contention it is argued, first, that Guthrie and Scott are themselves working em- ployees; second, that their supervisory authority, if any, extends to a limited group of employees; third, that they are not only eligible for membership in the Union but also entitled to act in their own behalf in the formation of a labor organization; and finally, that the desig- nation of Guthrie to preside at the meeting of August 4 and of Scott and Guthrie to serve as officers of the Committee and the Association was, in so far as the record discloses, the free choice of the members 110 See supra, footnote 100 111 It is clear that the respondent knew of the participation of supervisory employees in the activities of the Committee In the first place, on July 25 the seven members of the Committee , including Scott, filed a motion to intervene in this proceeding On July 30, moreover, the Committee introduced as an exhibit, the petition previously referred to. which bore the signatures of Scott , Guthrie, McMillan , Poe, and the three local managers Cf supra, footnote 106 112 Williams had the same supervisory status as Scott and Guthrie who were participants in the Association 113 McMillan, Poe, and the local managers were not mentioned in the Proposed Findings, but we assume that both the respondent and the Association would have raised analogous exceptions to our pi esept findings concerning them. Consequently the discussion in the text is intended to apply not only to Scott and Guthrie but to McMillan, Poe, and the local managers as well. WEST TEXAS UTILITIES COMPANY 569 of those organizations. These facts, however, do not relieve the re- spondent of accountability for the acts of Scott and Guthrie."' In the first place, as we have found, Scott and Guthrie are super- visory employees. That they are themselves engaged in actual pro- duction and distribution work is in no way inconsistent with their exercising supervisory authority. Secondly, the fact that their au- thority relates only to a limited group of employees is not controlling. With respect to his subordinates, a foreman constitutes the voice of the employer. The impact of his conduct is not restricted, however, to the employees actually under his charge, for in the eyes of others as well, his actions are those of the management. We turn to the third point raised by the exceptions-namely, the eligibility of Scott and Guthrie for membership in the Union and their right to participate in the formation of a labor organization on their own behalf. 'Initially it should be pointed out that we do not have to pass on the effect which these factors might have had on the respondent's accountability for the conduct of its supervisory em- ployees if it had maintained a neutral and impartial attitude toward rival labor organizations. That situation is not present here because the respondent, through its managerial and supervisory employees, was active and outspoken in its opposition to the Union and had ex- plicitly reprimanded two foremen, Williams and Ray, for their ap- parent sympathy with that organization. Under these circumstances the factors to which the respondent adverts are not determinative of the issue of its responsibility for the conduct of its supervisory em- -ployees. The contrast in the respondent's attitude toward the rival labor organizations makes plain to us, as it necessarily must have to its employees, that the respondent approved, of and consented to the 114 See International Association of Machinists, Tool and Die Makers Lodge No. 35, affiliated with the International Association of Machinists, et at v N L R B , 110 F. (2d) 29 (C A , D C ), enf'g Matter of The Se) rick Corporation and International Union, United Automobile Il7orhers of America, Local No. 459, 8 N L R. B 621, where the court said It may be permissible for an employer merely to express a preference between two unions otherwise contending freely for position as bargaining representative, although this has-obvious dangers and limitations and the final authority has not so held But he cannot go further and lend a hand, openly or covertly, to one of tie contestants The basic policy of the Act is "hands off" so far as he is concei tied The statute, we think purposely, does not define the particular methods or agents by vihich the employer may inteimeddle unlawfully Had it done so, easy escape would have been opened from the Act's provisions. Nothing in it re- qunes that such representation be limited to officials having any particular kind or degree of authority, such as "hiring and firing," "disciplinai y power" or even "supervisory capacity " These elidences of authority make more plain the connec- tion of the actor with the employer, but their absence does not pieclude the existence of such a connection what is requited is that substantial evidence show that the actor, whatever his official position, is acting in fact on behalf of the employer, not for himself or others only and that, by whatever methods or means, the employer brings pressure to bear upon his employees which deprives them of free and independent choice ,570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD activity of its supervisory employees in the Committee and the Association.115 We must likewise reject the final argument referred to above, because from the foregoing we conclude that Scott and Guthrie--in participating in the activities of the Committee and the Association- acted as agents of the respondent. Consequently it is immaterial whether or not they were designated as temporary and permanent 'officers of those organizations by means not in themselves improper.-' We conclude that, under the facts of this case, Scott, McMillan, Guthrie, Poe, and the local managers were acting in behalf of the re- spondent in the formation and administration of the Committee and the Association and that the respondent is responsible for their activity.117 Upon the basis of the foregoing we find that the respondent domi- nated and interfered with the formation and administration of the -Committee and of the Association and contributed support to them, and that it thereby interfered with, restrained, and coerced its em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondent set forth in Section III above, occurring in connection with. its operations described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and colhinerce among the several States and' tend to lead-to labor, dis- putes burdening and obstructing commerce aiid the free ' fldw-''of commerce. 115 See Matter of Humble Oil & Refining Company and Oil Workers International Union, Locals Nos 333 and 316, 16 N L. R B. 112 IID Cf N L R B v Brown Papci Mill Company . Inc, 108 F (2d) 867 (C C A 5 decided January 17 , 1940 ), enf'g Matter of Brown Paper Mill Company, Inc, Monroe, Louisiana and International Brotherhood of Paper Makers, affiliated with the American Federation of Labor, et al , 12 N. L R B 60 , N L R B V Newport News Shipbuilding & Dry Dock Company, 308 U S 241, 60 S Ct 208, enf 'g Matter of Newport News Shipbuilding and Dry Dock Company and Industrial Union of Marine and Shipbuilding Workers of America, 8 N L R B 866 117 See Swift & Company v N L R. B, 106 F (2d) 87 (C C A 10), rehearing denied, 106 F ( 2d) 94 (C C A 10), enf'g as mod. Matter of Swift & Company, a Corporation and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 6111 et at., 7 N L R B 269 ; International Association of Machinists, Tool and Die Makers Lodge No 35, affiliated with the International Association of Machinists , et at V N. L R B , 110 F (2d) 29 (C A, D C , decided Novembei 20, 1939 ), enf g Matter of The Seri ick Corporation and International Union, United Automobile Workers of America, Local No 4459, 8 N L R B 621 Cf also Matter of Ward Baking Company and Committee for Industrial Organization, 8 N L R B 558, 565 ; Matter of Tennessee Copper Company and A F of L Federal Union No 21164, 8 N. L R B 575 , 578; Matter of West Oregon Lumber Company and Sawmill Workers Local Union No. 3, International Woodworkers of America, 20 N. L. R B 1 WEST TEXAS UTILITIES COMPANY V. THE REMEDY 571 We have found that the respondent has engaged in certain unfair labor practices. It is essential, in order to effectuate the policies of the Act, that the respondent be ordered to cease and desist from those activities and practices, and to take certain affirmative action more particularly described below. Having found that Wills, Quinlan, and Elder were discharged, because of their membership and activity in the Union, we shall order the respondent to reinstate them to the positions which they formerly held."" Since, moreover, we have found that Wills was transferred from his post as switchboard operator to a less desirable position in the repair and maintenance gang, that Quinlan was trans- ferred from San Angelo to McCamey, and that these transfers were motivated by a desire to frustrate organizational activity of the Union, we shall direct that Wills and Quinlan, when rehired, be reinstated to the positions held by them before their transfer. We shall order the respondent, furthermore, to make whole Wills, Quinlan, and Elder for any loss of pay each of them may have suffered by reason of his discharge 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 "'As the result of the injury which he assertedly sustained on December 7, 1937 , wills, on January 17, 1938, filed a claim for compensation with the Texas Industrial Accident Board . Since physicians had not yet determined the nature of wills' indisposition, wills' attorney , as a matter of precaution , pleaded total and permanent disability . On April 27, 1938, after the Industrial Accident Board had ruled against wills' claim , he filed a petition in the District Court of Tom Green County , appealing from that - ruling and reiterating the allegation as to his total and permanent disability. The action was later removed to the Federal Court and ultimately was settled by payment to wills of $400 by the respondent's insurance carrier In testifying at the first hearing in this proceeding, wills stated that the allegations in his compensation claim were true, that he had been totally and permanently disabled , and that at the time of testifying lie still was so disabled when wills was iecalled to the stand several days later lie testified that he had conferred with his physician and had been informed that lie was able, and that he considered himself able, to perform the duties of switchboard operator. Wills , at the time of the third hearing, had filed against the respondent an action for slander asking damages of $25,000, and another action for damages of $2,200 The action for slander was based on the follow- ing alleged statement by 1-lass conceiving Wills- "There is nothing wiling with him; lie is just trying to put the big britches on the Company " The subject mattes of the other suit is not disclosed by the record The respondent contends that , because wills claimed in his compensation action to ha'e been totally and permanently disabled, neither should lie be heaid to seek reinstatement nor, because of the suits which lie has filed against the respondent since his discharge, should the respondent be compelled to reinstate him we are unwilling to apply a technical rule of estoppel , because it is not unreasonable that before the nature of his mjmy becomes known , a plaintiff in it workmens compensa- tion action , in order fully to protect himself and his rights , should assert the broadest possible claim while it is concenable that under ordinary circumstances the respondent would refuse to continue the employment of a woiker who had brought three legal actions against it , we ale of the opinion that , since the respondent violated the provisions of the Act in discharging wills , the purposes of the Act will best be effectuated if wills is rein- stated The fact that wills is a party adverse to the respondent in two pending actions at law is not a serious obstacle to the peifoimance of his duties in the respondents employ. 572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD date of the termination of--his employment to the date of reinstate- ment, less his net earnings 119 during that period.120 We have found that the respondent dominated and interfered with the formation and administration of the Committee and of the Asso- ciation and contributed support to them. The continued existence of the Association constitutes a continuing obstacle to the free exercise by its employees of their right to self-organization and to bargain collectively through representatives of their own choosing. In order .to make the cease and desist portion of our order effective and to remove this obstacle to the exercise of rights guaranteed by the Act, we will order the respondent not to recognize the Committee or the Association as collective bargaining representative of its employees. We shall, moreover, direct the respondent to post notices in con- spicuous places throughout its system stating that it will cease and ,desist from its unfair labor practices and that it will take the afrma- .tive action required by our Order; and to notify the Regional Director within ten (10) days of the steps which it has taken to comply with our Order. VI. TH E QUESTION CONCERNING REPRESENTATION On April 11, 1938, the Union attempted to open collective bargaining -negotiations with the respondent, claiming that certain employees in Districts H and K constituted an appropriate unit for the purposes of collective bargaining and that it represented a majority of the employees in the unit. Schroeder, vice president and general superin- tendent of the respondent, stated that he "did not believe" that the Union represented a majority. Although the Union suggested that an election be conducted by a "government official" to determine whether it had a majority, Schroeder rejected this plan for resolving the question and informed the Union that the respondent "would not enter into-any agreement" with the Union for the unit claimed to be "'BY "net earnings" is meant earnings less expenses , such as for teanspoitation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for the unlawful termination of his employment 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 workeis Union, Local 2590, S N. L R B 440. Monies received for work performed upon Federal , State, county , municipal , or other work-relief projects are not considered as earnings , but, as provided below in the Order, shall be deducted from the sum due the employee , and the amount thereof shall be paid over to the appropriate fiscal agency of the Federal , State, county , municipal , or other government or governments which supplied the funds for said work -relief projects 120 As we have previously noted , sups a, footnote 118, wills testified on July 27 , 1938, that he had been unable to work since the date of his claimed injury , December 7, 1937. On August 3, 1938 , he resumed the stand to testify , that lie had consulted his physician, that he had been pronounced fit to work as a switchboard operator , and that he was willing to do so we shall accordingly order that wills be reimbursed for his loss of pay for a period commencing August 4 , 1938 , rather than the date of his discharge WEST TEXAS UTILITIES COMPANY 573 appropriate, or for "any other division of the company." Schroeder declared, moreover, "that he would not meet with a group of his employees for the purpose of negotiating an agreement until ordered to do so by the . . . Board." We find that a question has arisen con- cerning representation of the employees of the respondent. VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the respondent, described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. VIII. THE APPROPRIATE UNIT In its amended petition the Union claims that the appropriate unit comprises "all persons . . . engaged in the generation, transmission and distribution of electric energy and power and in the installa- tion and servicing of the electrical equipment and appliances in .. . Districts H and K . . ." The Association takes a similar posi- tion, except that it desires the inclusion in the unit, while the Union desires the exclusion, of meter readers and of certain hourly paid maintenance and repair men.121 The respondent, in its answer to the amended petition, maintains that the unit should be coextensive with its entire system or, alternatively, with the entire system exclu- sive of District D, which is geographically separated from all the- others. The respondent has never -nlet with any committee representing a, group of its employees concerning wages, hours, or working condi- tions; has never had a contract with a labor organization; and has handled all matters of employment by dealing with individual em- ployees. No labor organization other than the Union and the Asso- ciation has attempted. to organize the respondent's employees. From Wimberly's activity in Quanah 122 in November 1937, which the re- spondent assiduously sought to discourage, and from the testimony, of Ingram and Wimberly, it appears that the Union desires ultimately to organize all the respondent's employees who are eligible for mem- bership in it. Under the circumstances, and especially in view of the obstacles which the respondent has interposed to self-organiza- 22i Since we have found the Association to be company dominated , we give no considera- tion to its contention concerning the unit The maintenance and repair men are discussed infra 122 Quanah , which is approximately 200 miles from San Angelo , is in District E 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lion of its employees, we are of the opinion that the employees in Districts H and K should not be compelled to await complete organi- zation of the respondent's system before being afforded the full enjoyment of the rights guaranteed in the Act.123 We find that a bargaining unit limited to Districts H and K is appropriate. We pass to a consideration of whether or not certain individuals and groups of individuals should be included within that unit. M. D. Nunnally, Jr. and W. A. Mosley divide their time equally between installation and delivery of appliances while L. V. W. Pied- ford is engaged in the repair of appliances and delivery of merchan- dise. Ingram testified that the Union had not "undertaken to repre- sent ... delivery men." Since these men are partially engaged in tasks requiring that they be qualified to do electrical work, they should be included in the unit. At the San Angelo plant there are 20-odd men who spend part or all of their time in maintenance and repair work. Of these approxi- mately a dozen 124 constitute the maintenance and repair gang and are engaged exclusively in work of that nature. They are paid on an hourly basis and do not have continuous employment, whereas the others receive monthly salaries and are regularly employed .125 The average wage of the gang members is 40 cents an hour, which is con- siderably less than the compensation of the employees engaged wholly or partially in maintenance and repair work, the lowest paid of whom receives $90 and the remainder from $120 to $155 per month.126 While several of the gang members may be skilled workmen'127 none need be an electrician 128 and few, if any, are qualified for operating positions at the station. The salaried men, on the other hand, are required to 129 See Matter of The Western Union Telegraph Company, Inc and The Commercial Teleg- raphers' Union, 11 N. L. R. B 1154; Matter of R. C. A. Communications, Inc. and American Radio Telegraphists' Association, 2 N L R. B. 1109 124 At the time of the hearing this gang consisted of 13 men From a stipulation intro- duced into the record subsequent to the hearing it appears that one of these men is now employed as an assistant engineer and another as assistant engineer and fireman 125 In many instances vacancies in salaried positions are filled by promotion of an hourly paid worker from the maintenance and repair gang 126 Employees work 8 hours a day, 6 days a week 121 Hollowell , the production manager, testified that a majority of the maintenance and repair men , including both salaried and hourly paid workers , were common laborers. At the time he testified, the salaried and hourly men together numbered 21, of whom 11 would constitute a majority. Since all but one of the salaried men receive compensation con- siderably in excess of that earned by the hourly men, we infer that they are not common laborers. Consequently the "majority" referred to by Hollowell, which consists of at least 11 common laborers , must be composed principally of hourly men This conclusion is corroborated by Brewer's testimony that all but one of the men in the maintenance and repair gang ate common laborers In the light of Hollowell's and Brewer 's testimony it is apparent that Huss, in stating that skilled men were required for a "majority" or for "some" of the maintenance and repair work, had reference to tasks performed by the salaried as well as by the hourly men That this is the import of Huss' testimony is further borne out by the fact that attorneys and witnesses alike used the phrase "main- tenance and repair" to refer not only to the gang of hourly workers but also to the entire group of both salaried and hourly workers. 128 The plant maintenance electrician is a salaried employee WEST TEXAS UTILITIES COMPANY 575 have sufficient skill to enable them to work at operating posts and at least half of them spend a substantial portion of their time at such posts. The Union contends that the hourly paid maintenance and repair men should be excluded from the unit. 129 While the Association takes a contrary position, we have found that organization to be company dominated. The Union is, therefore, the only bona fide labor organi- zation which has been chosen by employees of the respondent as a collective bargaining agency.130 The distinctions which exist between the salaried and hourly maintenance and repair workers sufficiently differentiate them to warrant the exclusion of the latter from the unit, upon the request of the single bona fide labor organization involved. We find, accordingly, that the hourly maintenance and repair workers should not be included in the unit. The respondent contends that clerical and sales employees should be included in the Unit. The Union, however, does not admit such persons to membership and we shall, therefore, exclude them. Similarly the respondent maintains that the unit should comprise supervisory employees. While at least two such employees are mem- bers of the Union, that organization did not at the hearing expressly indicate that it desired supervisory employees included in the unit and consequently in our Proposed Findings we declared that they would be excluded. Since the Union took no exception to the Pro- posed Findings in this respect, we infer that it does not want super- visory employees to be included within the unit. Under these cir- cumstances we shall follow our customary practice and exclude super- visory employees from the unit.lal There is no dispute between the parties other than those which we have discussed. Since the Union has not undertaken to represent janitors, night watchmen, yard clean-up men, chemists, full-time meter readers '112 or delivery men, and since no contention is made by any of the parties that employees in these classifications should be included in the unit, we shall exclude them from it. 129 Although one union member worked on the, maintenance and repair gang at the time that lie joined „ he had become a salaried worker about 4 months prior to the first hearing. '30 See Matter of Nekoosa-Edwards Paper Company and International Brotherhood of Paper Makers, Local No 59, 11 N L R. B. 447 iii See Matter of Vaal-Ballou Press, Inc. and Binghamton Printing Pressmen's and Assistants' Union, No 57, 1 P. P and A U., of Binghamton, N. Y, et al, 15 N. L. It. B. 378; Matter of Union Envelope Company and Envelope Workers Union No 893, et al, 10 N L R B 1147 The record discloses that all local managers in Districts I3 and K are in charge of one or more subordinate employees and we find, consequently, that they are supervisory employees . Cf supra, footnote 106. We have previously found, moreover, that shift engineers are supervisory employees See supra, footnote 100 182 Several employees spend pait of their time reading meters but are also occupied with repairing , installing , and testing meters. Since these men must have greater technical qualifications than are required of meter readers, we shall include them in the unit. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that employees of the respondent in Districts H and K engaged in the generation, transmission , and distribution of electrical energy and power, and in the installation and servicing of electrical equipment and appliances , excluding supervisory employees , clerical employees, sales employees , full-time meter readers , chemists , hourly paid maintenance and repair workers at the San Angelo power plant, night watchmen , janitors, yard clean-up men , and delivery men, but including employees at least partially engaged in the repair or installation of electric meters or appliances , constitute a unit appro- priate for the purposes of collective bargaining, and that this unit will insure to employees of the respondent the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. IX. THE DETERMINATION OF REPRESENTATIVES The Union made no effort at the hearing to introduce formal proof that it represented a majority of the employees in the appropriate unit, but requested that an election be held to determine the question concerning representation . We shall order the Regional Director to hold an election by secret ballot to determine whether or not em- ployees of the respondent in the appropriate unit desire to be rep- resented by the Union for the purposes of collective bargaining.133 .Since the respondent has, by engaging in various unfair labor prac- tices, interfered with the exercise by its employees of the rights guar- anteed them by the Act, we shall not now set the date for the election. We shall hold the election, however, upon receipt of information from the Regional Director that the circumstances permit a free choice of representatives unaffected by the respondent's unlawful acts. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, the Committee, and Utilities Workers Protective Association are labor organizations, within the meaning of Section 2 (5) of the Act. 2. The respondent, by discriminating in regard to the condition and tenure of employment of W. H. Wills and Volney R. Quinlan, and by discriminating in regard to the tenure of employment of R. S. Elder, 181 we make no provision for inclusion on the ballot of the Association since we have found that the respondent dominated and interfered with and contributed support to it in its formation and administration. NEST TEXAS UTILITIES COMPANY 577 to discourage membership in the Union, has engaged in and is engag- ing in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. The respondent, by dominating and interfering with the forma- tion and administration of Utilities Workers Protective Association and its predecessor, the Committee, and by contributing support to them, has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (2), of the Act. 4. The respondent, by interfering with, restraining, and coercing its, employees in the exercise of the rights guaranteed in Section 7 of the At, 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. 6. A question affecting commerce has arisen concerning the repre- sentation of employees of the respondent, within the meaning of Sec- tion 9 (c) and Section 2 (6) and (7) of the Act. 7. The following employees of the respondent constitute a unit appropriate for the purposes of collective bargaining : employees in Districts H and K engaged in the generation, transmission, and dis- tribution of electrical energy and power and in the installation and servicing of electrical equipment and appliances, excluding supervisory employees, clerical employees, sales employees, full-time meter readers, chemists, hourly paid maintenance and repair men at the San Angelo power plant, night watchmen, janitors, yard clean-up men, and de- livery men, but including employees at least partially engaged in the repair or installation of electric meters or appliances. 8. The respondent by discharging or laying off G. L. Yarbrough and J. T. Joyner has not engaged in any unfair labor practice, within the meaning of Section 8 (1) or (3) 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 Act, the Board hereby orders that the respondent, West Texas Utilities Company, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Electrical Workers or any other labor organization by discharging, transferring, or refusing to reinstate any of its employees because of membership in such organization, or by discriminating in any other manner in regard to their hire and tenure of employment or any 578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD term or condition of employment because of membership in said Union or in any other labor organization; (b) Dominating or interfering with the formation and administra- tion of the Utilities Workers Protective Association, the Committee, or any other labor organization of its employees , or from contribut- ing support to the Utilities Workers Protective Association, the -Committee, or any other labor organization of its employees; ^c) In any other manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist labor organizations , to bargain collectively through representatives of their own choosing , and to engage in concerted activities for the purposes of collective bargaining or ,other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action , which the Board finds will effectuate the policies of the Act : (a) Refuse to recognize the Utilities Workers Protective Associa- tion or the Committee as the representative of any of its employees -for the purpose of dealing with the respondent concerning griev- ances , labor disputes, wages, rates of pay, hours of employment, or other conditions of work; (b) Offer to W. H. Wills, Volney R. Quinlan , and R . S. Elder immediate and full reinstatement to the positions held by each of them prior to December 5, 1937, November 22, 1937, and April 19, 1938, respectively, without prejudice to their seniority or other rights and privileges; (c) Make whole Volney R. Quinlan and R . S. Elder for any loss of pay each of them has suffered by reason of his . discharge, by pay- ment to him of a sum of money equal to that which he normally would have earned as wages during the period from the date of his discharge to the date of such offer of reinstatement , less his net earnings during that period; and make whole W. H. Wills for any loss of pay he has suffered by reason of his discharge by payment to him of a sum of money equal to that which he normally would have earned as wages from August 4 , 1938, to the date of such offer of reinstatement, less his net earnings during that period ; deducting, however, from the amount otherwise due to each of these persons monies earned by him during the designated period for work per- formed upon Federal, State, county, municipal, or other work-relief projects, and pay over the- amount so deducted to the appropriate fiscal agency of the Federal , State, county , municipal, or other government or governments which supplied the funds for those work-relief projects; (d) Post immediately in conspicuous places throughout its system, and maintain for a period of at least sixty (60) consecutive days, notices WEST TEXAS UTILITIES COMPANY 579 to its employees stating that the respondent will cease and desist as provided in 1 (a), (b), and (c), and will take the affirmative action described in 2 (a), (b), and (c) of this Order, and that the respondent's employees are free to become or remain members of International Brotherhood of Electrical Workers and that the respondent will not discriminate against any employee because of membership or activity in that organization ; (e) Notify the Regional Director in writing within ten (T0) days from the date of this Order what steps the respondent has taken to comply therewith. IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis- missed in so far as it alleges that G. L. Yarbrough was discharged because of his membership and activities in the Union and that J. T. Joyner was discharged because of his membership and activities in the Union and because lie gave testimony under the Act. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with the respondent, West Texas Utilities Company, San Angelo, Texas, an election by secret ballot shall be conducted at such time as the Board shall hereafter direct under the supervision of the Regional Director, acting in this matter as agent for the Board, and subject to Article III, Section 9, of said Rules and Regulations, among the re- spondent's employees in Districts H and K engaged in the generation, transmission, and distribution of electrical energy and power and in the installation and servicing of electrical equipment and appliances, excluding supervisory employees, clerical employees, sales employees, full-time meter readers, chemists, hourly paid maintenance and repair workers at the San Angelo power plant, night watchmen, janitors, yard clean-up men, and delivery men, but including employees at least partially engaged in the repair or installation of electric meters or appliances, who shall be employed by the respondent during a pay-roll period hereafter to be designated by us to determine whether or not they desire to be represented by Local 898, International Brother- hood of Electrical Workers, affiliated with the American Federation of Labor, for the purposes of collective bargaining.