The Middle West Corp.

In the Matter of THE MIDDLE WEST CORPORATION, KENTUCKY UTILI- TIES COMPANY, KENTUCKY POWER & LIGHT COMPANY, and INTER- NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFFILIATED WITH THE A. F. OF L. Cases Nos. C-1661 and C-1662.-Decided December 13, 1940 Jurisdiction : electric utility industry. Unfair Labor Practices In General: responsibility of employer for acts of supervisory employees. Where two subsidiaries of a parent holding company operate as a single closely integrated enterprise under a common management and with com- mon supervision and control of their labor policies, both occupy the status of an employer with respect to the employees of each. Holding Company, however, not a proper party as it neither controlled or was responsible for labor policy and had committed no unfair labor practice. Interference, Restraint, and Coercion: anti-union statements; threats to dis- charge employees joining or belonging to union ; permitting and endorsing circulation of anti-union letter and petition. Discrimination: discharges for union membership and activities. Remedial Orders : reinstatement and back pay. Deduction 'made from amount of back pay awarded discriminatorily discharged employees for the period from the date upon. which each was discharged to the date upon which charges were filed where a lapse of 7 to 12 months had occurred before charges were filed. Mr. W. J. Perricelli, for the Board. Stoll, Muir, Townsend c& Park, by M. R. Stoll, of Lexington, Ky., and Gordon, Laurent, Ogden c& Galphin, by Mr. Squire R. Ogden, of Louisville, Ky., for the respondents. Mr. W. H. Wilson, of Cuyahoga Falls, Ohio, and Mr. Ira Braswell, of Winchester, Ky., for the Union. Mr. Raymond J. Compton, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, herein called the Union, the National Labor Relations Board, herein called the Board, by. the Regional Director 28 N. L. R. B., No. 84. 540 - THE MIDDLE WEST CORPORATION 541 for the Ninth Region (Cincinnati, Ohio), issued its complaint in Case No. C-1661, dated March 9, 1940, and its complaint in Case No. C-1662, dated March 26, 1940, against The Middle West Corpora- tion, Kentucky Utilities Company,, and Kentucky Power & Light Company, hereinafter called the respondents, alleging in each case that the respondents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the National Labor Re- lations Act, 49, Stat. 449, herein called the Act. ' On March 26, 1940, the Board, acting pursuant to Artice II, Section 36 (b), of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered that the cases thus instituted be consolidated for the purpose of hearing.- Copies of the complaints, accompanied by notice of hearing thereon, were duly served upon the respondents and the Union. The complaints alleged in substance that the respondents (1), discharged and thereafter refused to reinstate James B. Crawford, Ira Braswell, Ellis Edwards, and Robert J. Lindsay, for the reason that they joined and assisted the Union and engaged in concerted activities for the purposes of collective bargaining and other mutual aid and protection; and (2) by the afore-mentioned acts, by seiz- ing records of the Union, by making statements hostile to the Union and tending to discourage membership of its employees therein, by threatening employees with discharge for their activities in the Union, by questioning employees with respect to their membership in the Union, by circulating anti-union petitions and an "executive policy letter" designed to impede union organization, and by other acts, interfered with, restrained, and coerced its employees in the exercise of the rights guranteed in Section 7 of the Act.2 On March 27, 1940, and on April 4, 1940, the respondents filed separate answers in Cases Nos. 0-1661 and C-1662, respectively, denying that they had engaged in or were engaging in the unfair labor practices as alleged in the complaint. The Middle West Cor- poration denied in its answer that it, "either through a wholly owned subsidiary, Middle West Service Company, or at all, super- vises, controls or influences, either Kentucky Utilities Company or Kentucky Power & Light Company' with respect to employing or discharging persons who may be or are working for either of said companies." The answers of Kentucky Utilities Company and of Kentucky Power & Light Company asserted the defense of lathes in, the filing of the complaints, in that the complaints 1 An amended order of consolidation was issued by the Board on March 30, 1940. 2 The complaints are identical save that the discharge of Crawford, Braswell, and Edwards is alleged in Case No . C-1661, and that of Lindsay in Case No . C-1662. , 542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD were not issued within a reasonable time after the discharges of the persons named therein. At the same time, the ' respondents filed with the Regional Director motions to dismiss the respec- tive complaints : The Middle West Corporation, on the ground that it was not an employer within the meaning of the Act and that the employees named in the complaint were not employed by it; Kentucky Utilities Company and Kentucky Power and Light Com- pany, inter alia, on, the ground that they were not engaged in "com- merce" or in a business "affecting commerce" as defined in the Act, and that the acts complained of did not lead or tend to lead to labor disputes burdening or obstructing commerce. The respondents also filed a joint motion in each, case that the Board elect which of the respondents it would proceed against and dismiss the complaint as to the other two, and a motion to make paragraph 7 of the com- plaint more specific by amendment thereof to state the names of the persons who as officers, agents, and employees, of the respondents are therein alleged to have interfered with, restrained, and coerced the respondents' employees in the exercise of the rights guaranteed in Section 7 of the Act, and to name the employees who were thus subjected to interference, restraint, and coercion. The Regional Director made no ruling on these motions. Pursuant to notice, and notices of postponement, a hearing wag held at Lexington, Kentucky, from April 8 to 11 and April '16 to 19, 1940, inclusive, before Mortimer Riemer, the Trial Examiner duly designated by the Board. The Board and the respondents were represented by counsel, and the Union by its International and dis- trict representatives; all participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and-to introduce evidence bearing upon the issues was afforded all parties. At the conclusion of the Board's case, the Trial Examiner adjourned the- hearing for 4 days pursuant to a request by the respondents for time to prepare their defense. During the course of the hearing, the Trial Examiner -sustained an objection by counsel for the Board to the introduction in evidence by the respondents of copies of charges and amended charges filed by the Union -prior to the amended charges upon which the complaints were issued. This ruling is hereby reversed and the charges offered by the respondents are hereby made a part of the record.3 At the commencement of the hearing, counsel for the Board offered in evi- dence all motions previously filed by the respondents with the Re- gional Director, and at the conclusion of the Board's case and at the conclusion of the hearing, the respondents renewed the motions for 3 The exhibits in question appear in the record of the hearing as "Respondents Refused Exhibits Nos. 13, 13a , 13b, 13c, and 13d." THE MIDDLE WEST CORPORATION 543 severance,of the parties and for dismissal of the complaints. At the conclusion of the hearing, the Trial Examiner denied all of the fore- going motions with the exception of that made by The Middle West Corporation to dismiss the complaint as to it, which he granted in his Intermediate Report filed thereafter. The Trial Examiner also reserved ruling on a motion by counsel for the Board to admit in evidence the affidavit of Roland M. Tillman, a Board witness, which he denied in his Intermediate Report. At the close of the hearing, the parties stipulated that the pleadings be conformed- to the proof with respect to matters of form only. During the course of the hear- ing, the Trial Examiner ruled upon other motions and upon objec- tions to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. Except as indicated above, the rulings are hereby affirmed. After the close of the hearing, the respondents filed a brief with the Trial Examiner. The Trial Examiner thereafter filed his Intermediate Report, dated August 19, 1940, copies of which were duly served upon the - parties. He found that Kentucky Utilities Company and Kentucky Power & Light Company had engaged in and were engaging in un- fair labor practices within the meaning of Section 8 (1) and (3) and' Section 2 (6) and (7) of the act by approving and ratifying the circulation of an anti-union petition, by endorsing and permitting the circulation of an anti-union letter, by surveillance of a union meeting, by warning and persuading their employees, through supervisory officials, to refrain from joining or remaining members of the Union, and by discriminating in regard to the hire and tenure of employ- ment of James B. Crawford, Ira Braswell, Ellis Edwards, and Robert J. Lindsay. He accordingly recommended that these respondents cease'and desist from the unfair labor practices found and, affirma- tively, reinstate with back pay the four employees found to have been discriminatorily discharged. He found further that The Middle West Corporation had not engaged in the unfair labor practices al- leged in the complaints and recommended that the complaint against it be dismissed. Thereafter the respondents filed exceptions to the Intermediate Report and requested that the Board consider the brief filed with the Trial Examiner. The Board has considered the brief and the exceptions to the Intermediate Report and, in so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. 544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon the entire record in,the case, the Board makes the following: FINDINGS OF FAVr 1. THE RESPONDENTS A. The business of the respondents Kentucky Utilities Company and Kentucky Power & Light Com- pany are corporations organized and existing under the laws of the State of Kentucky. Kentucky Utilities Company is principally en- gaged in the generation, purchase, transmission, distribution and sale of electric energy for light, power, and other purposes in 69 counties in Kentucky and 3 counties in Tennessee. It also owns and operates gas distribution systems in 4 communities, distributes and sells water in 12 communities, manufactures and sells ice, and provides` Paducah, Kentucky, with bus transportation. Kentucky Power & Light Com- pany is similarly engaged in the purchase, transmission, distribution, and sale of electric energy, and in 1939 purchased substantially all of the electric energy sold by it-from Kentucky Utilities Company. Kentucky Utilities Company and Kentucky Power & Light Com- pany are subsidiaries of The Middle West Corporation, a holding com- pany incorporated under the laws of the State of Illinois, which through its subsidiaries furnishes one or more utility services to 15 States in the United States and 2 Canadian Provinces. The Middle West Corporation owns all the common stock in Kentucky, Utilities Company and more than 50 per cent of the stock in United Public Service Corporation which in turn owns all issued shares of stock in Kentucky Power & Light Company. Middle West Service ^ Company, a wholly owned subsidiary of The Middle West Corporation, fur- nishes supervisory services.under a management contract to both Kentucky Utilities Company and Kentucky Power,& Light Company. R. M. Watt, president and director of Kentucky Utilities Company and of Kentucky Power & Light Company, directs labor relations of both companies. The operating territory of the two companies is divided into five geographical divisions within the State of Kentucky, with the principal supervisory, accounting, and engineering office at Lexington. Each division has a division manager and other division officials who act on behalf of either company and are directly responsi-, ble to the Lexington office. The facilities and business of Kentucky Power & Light Company are under the direct supervision of the divi- sion manager of Kentucky Utilities Company for the Northern Divi- sion at Maysville, Kentucky. Each division is divided' into districts, which are in charge of a district manager who directs the properties of both companies within the district and is responsible to the division THE MIDDLE WEST CORPORATION 545 manager. In addition to district managers, each division has its divi- sion engineer, accountant, commercial manager, safety director, audi- tor, production superintendent, and meter superintendent, all of whom are responsible, to the division manager. Construction and mainte- nance crews perform planned work within each division under the general supervision of the engineering division working with the division manager. The greater portion of electric energy sold and distributed by both companies is generated in Kentucky by Kentucky Utilities Company. The transmission system of Kentucky Utilities Com- pany extends from Louisville, Kentucky, through its Dix Dam and Pineville generating stations to the State line between Kentucky and Virginia, where it connects with the transmission system of Old Dominion Power Company, its wholly owned subsidiary, south of Pocket, Virginia, and at other points on the Kentucky-Virginia State line; and across the Kentucky-Tennessee State line through Mid- dlesboro, Kentucky, and Cumberland Gap, Tennessee, and again through Fulton, Kentucky, and South Fulton, Tennessee, where it connects with the lines of two small Tennessee subsidiaries of Ken- tucky Utilities Company which obtain all the electric energy sup- plied to eight communities in Tennessee from it. The transmission system of Kentucky Utilities Company also connects with, that of Kentucky Power & Light Company in northern Kentucky, at which points of connection Kentucky Power & Light Company obtains sub- stantially all of its electric supply from Kentucky Utilities Company. Kentucky Utilities Company sells electric energy to unaffiliated light and power companies in Kentucky, Tennessee, and Illinois. Both Companies supply, electric energy to manufacturing concerns in Ken- tucky whose products have a national market, and to four interstate railroads in Kentucky. They also furnish electric energy to West- ern Union 'Telegraph Company, Postal Telegraph-Cable Company, and Southern Bell Telephone and Telegraph Company, to a radio station, newspapers, and airports, and for navigation lights and the operation of locks and dams on the Kentucky and Ohio Rivers. The gross operating revenues of Kentucky Utilities Company for the year 1939 from the sale of electric energy, gas, water, ice, , and bus transportation was in excess of $9,250,000. In 1939 the total sales of electric energy for Kentucky Utilities Company, its wholly owned subsidiaries, and Kentucky Power & Light Company, was in excess of 460,416,139 kilowatt hours. For the same period, Kentucky-Utili- ties Company delivered 52,801,557 kilowatt hours outside Kentucky and received from without the State 51,374,100 kilowatt hours. All purchases of electric energy by Kentucky Power & Light Company from Kentucky Utilities Company were consummated in Kentucky. 546 DECISJONS OFNATIONAL LABOR RELATIONS BOARD In 1939 Kentucky -Utilities Company and Kentucky Power. & Light Company expended approximately $65,000 for the purchase of cop- per wire and cables from outside Kentucky and approximately $49,- 800 for the purchase of poles, of which approximately 60 per cent were shipped from other States. During the same year, approxi- mately 35 per cent of the electric appliances sold by them, the sale of which amounted to approximately $383,600, were shipped from outside the State of Kentucky. B. The employer status of the respondents The Board has fully considered the relationship existing between Kentucky Utilities Company and Kentucky Power & Light Com- pany with regard to the contention of the respondents that Kentucky Power & Light Company was not the employer of certain employees involved herein. Since, as outlined above,' both companies operate as a single closely integrated enterprise under a common manage- ment and ' with centralized 'supervision and control of their labor policies, it cannot be said that either company is absolved from re- sponsibility for unfair labor practices engaged in by the other. - We accordingly find that at all times herein material Kentucky Utilities Company and Kentucky Power & Light Company, and each of them, occupied the status of an employer with-respect to the employees involved herein. - We are in accord, however, with the contention of the respondents that The Middle West Corporation is not a proper party to the in- stant proceedings. We find, as did the Trial Examiner, that there is no evidence that The Middle West Corporation controlled or was responsible for the labor policy of Kentucky Utilities Company or Kentucky Power & Light Company, or that through its officials it had committed any of the alleged unfair labor practices. There are no officers or directors common to The Middle West Corporation and the other two companies. Evidence of control by The Middle West Corporation is confined to its 100 per cent ownership of the common stock of Kentucky Utilities and to ownership of 50 per cent but less than 53 per cent of the common stock of United Public Service Cor- poration, which owns all of the issued shares of stock of Kentucky Power & Light Company. Although Middle West Service Com- pany, a wholly owned subsidiary of The Middle West Corporation, has a management contract with Kentucky Utilities Company and Kentucky Power & Light Company whereby services are rendered in connection with "management, rate, engineering, purchasing, com- mercial, merchandising, accounting, income tax, insurance and safety, and other matters," there is no showing that, this, contract included control or direction of any labor policy. We shall accordingly dis- c1 THE MIDDLE WEST ' CORPORATION 547 miss the complaint insofar as it alleges that The Middle West Cor- poration engaged in unfair labor practices 4 II. THE ORGANIZATION INVOLVED International Brotherhood of Electrical Workers is a labor, organi- zation affiliated with the American Federation of Labor, admitting to its membership all employees of the respondents in the gas, water, electric, and ice departments, excluding supervisors, foremen, clerical forces, janitors, janitresses, salesmen, office employees, and others having authority to hire and discharge. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Union commenced organizing the respondents' employees in April 1937. Shortly thereafter locals of the Union were established in three of the four then operating divisions of the respondents. In June 1937 James Thompson, a clerk at the K. U. Park Power Sta- tion, circulated among the respondents' employees a document 5 read- ing as follows : We, the undersigned employees of the Mountain Division of the Kentucky Utilities Company, at K. U. Park Station, [Power Company, Old Dominion Ice Corporation, Dixie Light and Power Company,] desire to go on record with reference to an Article that appeared in the current copy of the Electrical World, dated June 12th, 1937, quoted as follows : Organize Electrical Workers ^ Organization of a local unit of union electrical workers em- bracing employees of the Kentucky Utilities Company, except the office force, and electricians engaged in the building industry, has been perfected. W. H. Wilson, Kentucky organizer of the International Brotherhood of Electrical Workers_ and (sic) A. F. of L. affiliate, said that negotiations would be undertaken in the near future for a working agreement for higher wages and better working conditions. We desire to state that this article is unfair and not true, that we, as individuals or collectively are not affiliated ^ with any Union organization [or do we desire, to become so affiliated and that our working conditions as to hours and wages are absolutely satisfactory.] 'Hereinafter our reference to the respondents will include only Kentucky Utilities Company and Kentucky Power & Light Company. 5 Designated in the record , and hereinafter referred to, as the Thompson petition, 413597-42-vol. 28-36 548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD [We desire to enjoy this freedom without any interference] and we want to pledge the company our loyal support and thank it for the policy that it has established and maintained toward its employees e Thompson testified that the circulation of the petition was sug- gested by one Creech, the owner of a hardware store in Pineville patronized by the respondents, and that he and Creech had the Above petition prepared in the office of a Pineville insurance agent. Thomp- son further testified that he circulated the petition because he "didn't want the organization torn up like it had been all over the country ... You could hardly pick up a paper but what you would see riots and destruction of property and killing and shooting and people out of work on account of union organizers." Thompson admitted that six other copies, substantially the same in content, were pre- pared by stenographers in one or more of the respondents' offices. Thompson secured from his superior, G. J. Williams, superintend- ent of production for the Mountain Division who also signed the petition, permission to take time off and spent 4 or 5 consecutive days openly circulating the petition among employees during working hours at K. U. Park Power Station, Pineville, Harlan, Middleburg, London, and Somerset. At least 11 supervisory employees signed one or another of the petitions, including J. H. Bailey, division manager,'' M. E. Graybeal, then division accountant at Pineville; . H. B. Asher, division engineer, J. D. Graybeal, commercial manager, H. S. Edwards, division meter superintendent, and W. C. Farley, division superintendent of construction and maintenance.8 In Lon- don the petition was circulated with the acquiescense of W. C. Stin- Thompson testified that the words bracketed above were blocked out because "there was some few employees-quite a few signed it and some few objected to certain clauses in it, and I said, 'I will be very glad to mark that out if you object to that.' " I Indicative of the animus Bailey bore the Union Is the testimony of George Tate, a former deputy sheriff, who testified that in the fall of 1937 he attended Bailey who was undergoing treatment for alcoholism at the Hotel Beecher in Somerset - According to Tate, Bailey said that he did not believe in unions , that he did not like organized labor, and that he did not want any of his men organized -into unions if he could help it. Bailey denied making these statements , but admitted that Tate had attended him in December 1935 when he was being treated for alcoholism at the Hotel Beecher. Although the testi- mony is in conflict as to the exact time of the incident , we credit Tate's testimony and find, as did the Trial Examiner, that Bailey made the statements substantially as attributed to him. B Further light-is shed as to Farley's attitude toward the Union by the testimony of Joe Wheeler ' Snavely, formerly employed by the respondents as a line foreman. He testified that in the latter part of 1937 or early in 1938 Farley asked him if any of the men on his crew belonged to the Union ; that he replied that he had no knowledge of their union affiliation ; and that Farley then stated that lie was "very much against the union," and could see no reason why men should want to loin a union and pay out money to work "for a company when they could work and keep their money." At the hearing Farley denied that he inquired of Snavely whether or not the, members of his crew belonged to the Union, but admitted that he had discussed unions with Snavely. The Trial Examiner credited the testimony of Snavely we find that Farley made the statements as testified to above. THE MIDDLE WEST CORPORATION 549 son, district manager, who was present when Thompson asked em- ployees to sign it. J. P. Todd, district manager, testified that _he read the petition, "liked the looks of it," signed it, and gave Thomp- son permission to circulate it among the employees at Somerset. When Thompson had completed circulation of the petitions he gave them to Bailey, division manager, who after reading them returned them to Thompson. Williams, Thompson's superior, testified that after Thompson had circulated the petitions he told Williams that "he had done a big job" and would appreciate,it if he could be reim- bursed for the expenses incurred in the circulation. Williams con- sulted Bailey and upon his approval reimbursed Thompson. The obvious interference with the self-organization of the respond- ents' employees effected by the circulation of the above petitions needs little comment. It was clearly designed to impede the then current organizing efforts of the Union, and the permission given Thompson to circulate the petition for several days among employees in the various plants and offices of the respondents without loss of pay and with reimbursement for the expenses he incurred in so doing, coupled with the fact that divisional supervisory employees not only expressly permitted the circulation of petitions but themselves signed them, was tantamount to open sponsorship by the respondents. By such acts of their supervisory employees the respondents made clear to their employees that the respondents considered affiliation with the Union to be inconsistent with "loyal support" of the respondents, and disapproved of such affiliation. The respondents thereby inter- fered with, restrained, and coerced their employees in the exercise of their rights as guaranteed in Section 7 of the Act. During 1937 when the Union was organizing the respondents' employees, and continuing thereafter into 1938, various supervisory employees of the respondents made threatening and coercive anti- union statements to employees. James Jessup, an employee at the Graham power plant, testified that in 1937 shortly after entering the respondents' employ he asked L. F. Dempsey, power plants super- intendent in charge of the electric generating operations at Paducah, Earlington, and Graham, what he` thought about the Union and that Dempsey replied that sooner or later all employees would be or- ganized. • Jessup testified that he thereafter joined the Union and that about 3 weeks later, he again talked to Dempsey, who told-him that he had met Wilson, the union representative, and had found out that "it was all a mess and we were getting a dirty deal and he wanted to advise us to drop the-thing." Jessup stated that on this same occasion Dempsey also said: "Sooner or later you will be fired, and they may not get nothing on you now, but later you will be black- balled from whole western Kentucky." In August 1-938 Jessup 550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD sought a transfer from Earlingtoi to Graham. According to Jessup, Dempsey told him that the transfer would be made only on condition that Jessup would "stay away from the local." Although Jessup expressed his reluctance to be transferred under such a condition, he was granted the transfer a few days later. Dempsey denied making the statements as testified to by Jessup, but admitted having dis- cussed union matters with him. L. C. Bennett, also employed at Graham, and a charter member of the Union, testified, that in 1937 or 1938 Dempsey told him, "Les, you are getting old; if you don't get • out of the union I can't take care of you." Dempsey denied making this statement but admitted that he had expressed his opinion to Bennett concerning the Union and that on one occasion he had said to Bennett, "I don't think much of it." Robert Rich, an-employee at the Earlington plant, testified that while working in July 1938 Dempsey said to him that "about fifty percent of the men in the union" at Earlington and Graham plant were dropping out'' and said : "I advise you to get out rather than remain and hold the bag." Demp- sey denied advising Rich to resign from the Union, but admitted that he had discussed the Union with Rich on "various occasions." Hugh P. Lansden, an operating engineer at Earlington, testified that in the summer of 1938 Dempsey told him that-he was going to "break this thing up," referring to the Union, and that he already- had "two of the best men out' and we will' get more." Roland L. Tillman, also employed at Earlington, testified that in the sipring of 1937, Dempsey told him that the employees "would be better off if we didn't bother with this union and kind of promoted a union of our own." Dempsey testified that all of the foregoing employees were "very close" to him and that on numerous occasions they had asked his advice with respect to union affairs. He stated that he avoided discussing these matters with the employees, but that "when they asked me I had to give them a personal answer in some way." We find, as did the Trial Examiner, that Dempsey made substantially the statements above attributed to him, by Jessup, Bennett, Rich, Lansden, and Tillman: Walter Killion, an employee at Lancaster, testified that A. S. Britt, the local manager, in the fall of 1937 asked Killion what it cost to belong to the Union and, upon Killion's reply, stated that it "was right smart money to give up." Britt admitted that he had a "num- ber of conversations" with Killion concerning union activities but could not remember snaking any particular statements to him. John Buzzard, a lineman, testified without contradiction that in November 1937, upon complaining to Frank Noe, his foreman, concerning the amount of work he had, Noe replied, "If you don't like your job get 'off of it, and to hell with the Union." We credit, as did the Trial THE MIDDLE WEST CORPORATION 551, Examiner, the testimony of Killion and Buzzard. We find that Britt and Noe made the statements as set forth above. Robert Coldiron, a line-crew employee, testified that- in August 1938 John Brattan, his foreman, told him "to stay out of the union," that it would not do him "any good," and that it would keep the men from getting vacations. Brattan denied making the foregoing statements to Coldiron "after his employment" but stated that previ- ous to Coldiron's employment on the crew they had discussed the Union. In giving credence to Coldiron's testimony, the Trial Ex- aminer characterized it as clear, concise, and positive. We find that Brattan made the statements substantially as testified to by Coldiron. Brattan admitted on cross-examination that he had sat in his car near the union hall for a period of 30 minutes while a union meet- ing was in progress, but explained that he had been at a drug store nearby and had then decided to sit in his car. He denied that he had any intention of spying upon the meeting of the Union. Upon a consideration of the evidence pertaining. to this incident we are un- able to agree with the finding of the Trial Examiner that Brattan had engaged in unlawful conduct on this occasion, and find that the respondents did not maintain surveillance of the union meeting being held at that time. Cyril Miller, a maintenance employee at Earlington, testified that J. L. Walker, assistant manager of the Western Division, asked him "on the ground of friendship to get out of the union" and during an ensuing argument told Miller, "If you don't get out I don't expect I will be able to keep you very long." Walker did not testify. The Trial Examiner found Miller to be a reliable witness and gave full credence to his testimony. We find that Walker made substantially the statements attributed to him by Miller. On December 13, 1938, the Board ordered an election among the respondents' employees to determine whether or not- they desired to be represented by the Union for the purposes of collective bargain- ing. An election was held from January 16 to January 21, 1939, and the Union lost. The petition filed by the Union for an investigation and certification was accordingly dismissed. Shortly after the elec- tion, Carroll Hoyt Teague, an operator at the Earlington power plant who relinquished his membership in the Union subsequent to the election, circulated among the employees for their signature a letter addressed to Watt, the respondents' president, reading as follows : Regarding the outcome of the recent vote taken by employees of the Kentucky Utilities Co., we, the employees of the Earling- ton and Graham power stations, consider the election a fair and final- settlement of the question voted on. We feel that any further attempt to establish the I. B. E. W. as bargaining agent 552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the employees of Kentucky Utilities Company; will be detri- mental to the interest of both the employees and the Company. We are aware of the misunderstandings and ill feelings that arose from this controversy preceding the election, and sincerely regret that such happenings occurred. We are confident that you, as president of our company, will see that no employees are discredited because of previous activ- ities pertaining to labor organizations. With this in mind, we are severing all relations with the I. B. E. W., and sincerely hope and believe that all K. U. employees share our view on this matter. Teague obtained permission from Dempsey, power plants super- intendent, to circulate the letter among employees at Earlington, Graham, Clay, and Sturgis. Teague claimed to have circulated the letter on his own time. It was circulated with Dempsey's approval, however, and was presented for signature to employees at the Earling- ton and Graham plants while they were at work. Thereafter, copies of the letter signed by employees were sent to L. P. Hite, manager of the Western Division, Walker, assistant division manager, and Hicks, production superintendent. Subsequently, Walker and Dempsey told _ Teague that it was a "nice letter" and expressed the opinion to him that "it would be appreciated." All signatories received from Watt the following reply : The contents of your January 27th. letter afford me a great deal of pleasure. Your expression assures me of your confidence in our employee welfare policy. My keenest interest has been towards the improvement- of employee working conditions and wages. Many conflicts and interferences have retarded my efforts from time to time. The full cooperation of every employee is the only means of overcoming this difficulty, and the only means of maintaining such a policy once put into effect. You may be assured that I have only the kindest and most sym- pathetic feeling towards all employees of every class, irrespective of any thoughts or actions on the part of some who may have been inclined to the judgment that their interests could have been bet- ter served by other methods. - , Thank you for the thoughtful expression of your letter, and good wishes for your health and happiness. By permitting and later endorsing the circulation of the above letter, and by Watt's reply thereto, the respondents conveyed to their em- ployees, as in the case of the petition circulated by Thompson, the re- spondents' preference that they refrain from or relinquish membership and activity in the Union. We find that the respondents' conduct THE MIDDLE WEST CORPORATION 553 constituted an unlawful interference with the rights of self-organiza- tion guaranteed to their employees in the Act. The respondents contend that they are not responsible for the activi- ties of their supervisory employees because Watt, president of the respondents, at a meeting held shortly after the passage of the Act, instructed division managers and the heads of various departments "to comply with the provisions of the Act in going about their busi ness." The evidence does not show, however, that the respondents pro- mulgated among their supervisory personnel a clear-cut policy of non- interference with the union interests and activities of their employees or that they in any way attempted to disavow the widespread activities of supervisory employees in opposition to the Union. The respondents are not relieved of responsibility for the activities of their supervisory staff merely by refraining from actual participation therein 9 We also find no merit in the respondents further contention that the evi- dence does not show that any of their employees were actually inter- fered with, restrained, or coerced by the activities complained of. In Matter of Montgomery Ward and Company, we answered a similar contention as follows : - It is sufficient that the conduct which constitutes the gravamen of the unfair labor practice normally results in interference, restraint, and coercion ; it is immaterial that the proscribed conduct does not produce the desired result. The respondent's invasion of the field of union activity which the Act reserves as a matter of right to the employees is in itself an unfair labor practice.'° We find that by the activities of their supervisory employees de- scribed above in disparaging the, Union, and in warning, threaten- ing, and questioning employees with respect to their affiliation with 9In Swift & Company V. National Labor Relations Board, 106 F. (2d) 87 (C. C. A. 10), enforcing as modified Matter of Swift & Company, a Corporation, and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 641, at at., 7 N. L. R. B. 269, the court disposed of a similar defense, stating : While the evidence showed that Middaugh, the plant manager , and Young, the plant superintendent, repeatedly warned against violations of the National Labor Relations Act and solicitation of union membership on petitioner 's premises during working hours, they took no effective means to stop repeated violations of the Act. Furthermore, with . respect to the acts of the supervisory foremen, the doctrine of respondeat superior applies and petitioner is responsible for the actions of its supervisory foremen, even though it had no actual participation therein. I See also National Labor Relations Board v. The A S. Abell Co.. 97 F. (2d) 951 (C. C. A. 4), enforcing as modified Matter of The A. S Abell Company, a Corporation and Inter- national Printing and Pressmen's Union, Baltimore Branch, Baltimore Web Pressmen's Union No. 31, 5 N. L. R. B. 644; Titan Metal Manufacturing, et al. v. N. L. It. B , 106 F. (2d) 254 (C.' C. A. 3), enforcing Matter of Titan Metal Manufacturing Company and Federal Labor Union No. 19981, 5 N L R. B 577. w Matter of Montgomery Ward and Company and Warehouse Employees' Union No 20, 297 affiliated with the A . F. of L., 17 N. L. R. B. 191. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Union, and by permitting, endorsing, and participating in the circulation of the Thompson petition and the, Teague letter, the 're- spondents have interfered with, restrained, and coerced ' their em- ployees in the exercise of the rights guaranteed in Section 7 of the Act. It was also alleged in the complaints that the respondents had i seized union records from the locker of a union employee and had distributed an executive policy letter designed to impede union or- ganization. As to the first allegation we find, as did the Trial Ex- aminer, that it is not supported by credible evidence. Inasmuch as no exceptions were filed to such finding of the Trial Examiner we will not here review the evidence. In support of the second alle- gation, it was contended that paragraph 8 of an executive policy letter mailed by the respondents to all of their employees in Sep- tember 1937 effected an interference with the organizing efforts of the Union. This paragraph reads as follows : The "Company" will recognize for collective bargaining any group of employees duly authorized to represent a majority of employees in any such division. The term "division" shall be defined as the territory or area now covered' by each of the four operating divisions as now established.- Although the above statement is susceptible of interpretation as an attempt by the respondents to dictate the form of employee self- organization by unilaterally defining the scope of the bargaining unit, under the circumstances we find, as did the Trial Examiner, that the circulation of the policy letter by the respondents was not an act of interference with the rights of their employees to self-organization within the meaning of the Act. We shall dismiss both of the above allegations of the complaints. B. The discriminatory discharges James B. Crawford was intermittently employed by the respond- ents from 1924 to July 6, 1937, the date of his discharge. His last period of continuous employment; during which he worked as a first-class lineman at London in the Mountain Division, began in April 1936. Late in June 1937 Crawford signed and circulated among a line crew at London, an application for a union charter. Between June 15 and July 6, 1937, he also solicited members in the Union by distributing membership applications among the employees for their signature. "A second policy letter necessitated by the enactment of the Fair Labor Standards Act was sent to all employees on October 31, 1938. Other than the adjustment in wages and hours set forth therein, it was similar to the first letter issued in September 1937 and contains a statement identical with that quoted above THE MIDDLE WEST CORPORATION 555 In the latter part of June 1937 Crawford refused in the presence of Stinson, the district manager, and several other employees in the dis- trict office at London, to sign the Thompson petition. Stinson testified that when Thompson came into the office and asked him for permis- sion to circulate the petition, he read the petition, told Thompson : "Go ahead, help yourself,"' and stated that all the men were there or that they would all be in there in a few minutes. Phelps, Crawford's foreman, was also present and signed the petition at Thompson's request. Crawford testified that shortly after he refused to sign the Thompson petition, Farley, superintendent of construction, asked him if there had been any union organizers around London, to which Craw- ford-replied that he had not seen any, but would be glad if they came there. When Crawford added that a man could not be discharged for union activities because of the Act, according to Crawford, Farley stated that the respondents "didn't have to fire a man, that they had ways of getting around that for union activities." Farley testified that he did not remember having had a conversation of this nature with Crawford. The Trial Examiner credited the testimony of Craw- ford and in view, among other things, of Farley's demonstrated atti tude of opposition toward the Union 12 we find that Farley made the statements substantially as attributed to him above. On July 6, 1937, Stinson told Crawford, "I have some bad news for you, Jim." Crawford replied, "I bet I can guess what it is. I guess the old yellow dog has got me, because I refused to sign the yellow dog petition." Stinson then said, "Well, I have orders to let you go," but asserted that it was only to reduce expenses and not because of, Crawford's union activities, or his refusal to sigh the Thompson peti- tion. Stinson testified that he had received instructions to discharge Crawford from Bailey '13 the division manager. B. F. Cross, a lineman, testified that after Crawford's discharge H. L. Williams, line foreman, said to him and other members of the line crew, "You had better be careful what papers you sign. Jim Crawford is an example." Williams admitted talking to members of his crew about the Union "right after" Thompson had circulated the petition and testified that "about the same time" the men had talked among themselves about Crawford's discharge, but denied making the statement attributed to him by Cross. We find, as did the Trial Examiner, that Williams made the statement as testified above. About 2 weeks after his discharge, Crawford sought the assistance of Watt, the respondents' president, in securing reinstatement. Watt agreed to do what he could to help Crawford in getting back his job, and afterwards talked to Bailey concerning Crawford's reemploy- See footnote 8, supra. '- See footnote 7, supra. 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment. A day or so later, • Crawford saw Bailey who, according to Crawford, told him that he could return to work" just as soon as I can place Air. Brown somewhere else." 14 Crawford testified that Bailey also told him that he would have had his job back sooner if he' "hadn't threatened to sue in front of the Labor Board." Bailey denied that he made this latter statement to Crawford. We find, however, as did the Trial Examiner, that he made the statement to Crawford as quoted above. Crawford also testified that when lie approached Howard Asher, division engineer, and asked him to help in getting back his job, Asher told him, "Jim, your threatening attitude is the only cause of your not getting back, threatening to sue the company," and further remarked, "This union activity, you ought to have- had more sense than to fool with a thing like that." Asher denied making the foregoing statements to Crawford, but admitted that he had sev- eral conversations with Crawford and had said he would do what he could to help him. We credit, as did the Trial Examiner, Crawford's testimony as to the statements made by Asher. - - Shortly after Crawford's conversation with' Bailey; Farley, con- struction superintendent, offered Crawford a job as lineman at Pine- ville. Farley testified that Bailey had' called him and told him to offer Crawford the job. Crawford, who had a home and his wife and 85-year old mother in London, refused, stating that Bailey had promised to reemploy him at London and asked Farley if he would assist in "rushing it up." Thereafter, Crawford again talked to Bailey. Bailey asked him why he did not- take the job offered by Farley, and when Crawford replied that he was waiting for the job in London which Bailey had promised-him, Bailey retorted, "You know we don't allow our men to pick their jobs." Crawford protested that he only wanted the job he had been discharged from, and a heated argument ensued, during which Bailey ordered Crawford from the office. Crawford left and did not again apply to Bailey for rein- statement. The respondents contend that Crawford was discharged solely to reduce expenses and thereby to offset losses occasioned by the Ohio Valley flood early in 1937. The evidence shows, however, that two linemen were reemployed a month or so after Crawford's discharge, and a third on January 7, 1938. Moreover, whether or not it may have been expedient for the respondents to reduce their personnel at that time, we are convinced that in selecting Crawford for dismissal the respondents were motivated by his activity in the Union and by his -adherence thereto as manifested in his refusal to sign the Thomp- 14 Brown , a second-class lineman who Williams, line foreman . admitted was not as experienced or as good a lineman as Crawford , had been transferred to London to do work which had theretofore been performed in part by Crawford THE MIDDLE WEST CORPORATION 557, son petition. Nor did the, respondents remedy their discriminatory discharge of Crawford by tendering him employment at Pineville. The evidence concerning the respondents' discriminatory transfer of Ellis Edwards, discussed below, suggests that by the transfer of Crawford the respondents sought to suppress Crawford's charges of discrimination and at the same time obstruct and discourage his sup- port of the Union by giving him reemployment away from London. In any event, the position offered to Crawford at, Pineville was not, under the circumstances, substantially equivalent to that from which Crawford was discharged. We find that the respondents discharged James B. Crawford on July 6, 1937, and thereafter refused to reuistate him to his former or a substantially equivalent position because he had assisted the Union and refused to sign the anti-union Thompson petition, and that they thereby discriminated in regard to his hire and tenure of employ- ment, discouraged membership in the Union, and interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in Section 7 of the Act. Ellis Edwards was first employed by the respondents in 1932 as a clerk in the Somerset office of the Mountain Division. In' June 1935 he was given a job as a meter tester and reader in connection with the initiation of a special meter-testing program.15 Edwards joined the Union in June 1937, circulated the application for charter which, as hereinbefore stated, he gave-to James Crawford for circu- lation at London, solicited memberships, and was otherwise active in the Union in and around Somerset. In June 1937 he refused, as did Crawford, to sign the Thompson petition, objecting to that por- tion of the petition which stated that employees had no desire to join a union in the future.18. Edwards, however, signed a second pe- tition, later presented to him by Thompson, from which the objec- tionable material had been removed. In the latter part of November 1937 M. E. Graybeal,. who had recently been promoted to district manager at Somerset, informed Edwards that he was to be transferred to Pineville. Edwards testi- fied that he asked Graybeal if he was not being transferred because of his union activities, and that Graybeal replied in the affirmative and added that he had warned Edwards on a previous occasion when checking his time tickets. According to Edwards, Graybeal, who had, on the occasion in question, been division accountant at 25 In April 1935, pursuant to then recently promulgated rules of the Kentucky Public Service Commission , the respondents embarked upon a special program of meter testing. By agreement with the Commission, the respondents were to test all of their meters within a period of 21/2 years , and by the end of 1938 the meter program was practically completed. is See footnote 6, supra. 558 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD Pineville, had checked Edwards' time tickets and asked him to "what account number" he was charging his union activities, fur- ther questioning, him as to which employees `were members of the Union. Graybeal denied having thus questioned Edwards or ever having discussed the Union with him. He testified that when the transfer occurred , he needed a man at Somerset who could supervise outside work, that the meter-testing program upon which Edwards had been working, at Somerset was completed ; that he therefore recommended to Bailey, the division manager, that Edwards be transferred to Pineville, and that Claude Hill, then in the meter department at Pineville, was transferred to Somerset to fill the posi- tion Graybeal "wanted taken care of." There was, however, no satisfactory evidence showing that Edwards was unable to do the work for which Hill was transferred to Somerset . In view of Graybeal's anti-union attitude, as evidenced by his signing of the Thompson petition, and his inadequate and evasive explanation of why Edwards was transferred to Pineville, we find, as did the Trial Examiner, that Graybeal made the statements attributed to him by Edwards. In the latter part of November 1937 James Edwards, father of Ellis Edwards, asked Bailey, the division manager , in Graybeal's office, why Ellis had been transferred to Pineville. ' Edwards testi- fied that Bailey replied , "Ellis is too active in the union business with my men here in Somerset and I think it is better for our organi- zation to send him to Pineville ." Cressel Edwards, a brother of Ellis Edwards, testified that he was present when his father spoke to Bailey, and corroborated the conversation as testified to by James Edwards. Bailey denied the above version of the conversation, and testified that Cressel Edwards was not present and that Graybeal was the only other person in the office . Graybeal testified that he overheard "the principal and important part" of the conversation be- tween Edwards and Bailey and that Bailey did not make the state- ment testified to by Edwards. He admitted , however, that he was called from the office before Edwards and Bailey had finished talk- ing. Graybeal did not testify as to whether or not Cressel Edwards was present . The Trial Examiner found both James and Cressel Edwards to be credible witnesses. We find that Bailey made the statement attributed to him by James Edwards. We further find, in view of the foregoing, that Ellis Edwards was discriminatorily transferred to Pineville because of his membership and activities in the Union. 1, Following his transfer to Pineville, Edwards not only engaged in union activities there but on week ends returned to Somerset where he manifested an active interest in the affairs of the Union. On THE MIDDLE WEST CORPORATION , 559 December 24, 1937, H. S. Edwards, superintendent of the meter de- partment, informed Edwards that he was discharged. Edwards testified that on that occasion H. S. Edwards said that he had "just had a talk with Mr. Bailey and Mr. Bailey said that [Edwards] would have to go." Further, according to Edwards' testimony, H. S. Edwards expressed reluctance to discharge him,, stating that his work had been satisfactory and that more men were needed, but that the matter of discharge was "out of his control." Edwards further testified that he asked H. S. Edwards whether his union activities had anything to do with the discharge and that Edwards replied, "They, did, and the Company is not, going to tolerate any union." H. S. Edwards testified that the discharge was occasioned by Bailey's recoi'nmendation that personnel be reduced because the meter-testing program was nearing completion. He admitted telling Edwards that he "hated" to discharge him, but denied making any statements con- cerning the Union or Edwards' union activities. The Trial Examiner accorded full credence to the testimony of Ellis Edwards. We find that H. S. Edwards informed Edwards, as stated above, that his union activities were responsible for his discharge. Sam Farrell, Jr., who worked on a construction crew under John Brattan, a foreman hereinbefore referred to, also testified that early in 1938, following Edwards' reemployment, discussed below, in the Central Division, he overheard a conversation between Brattan and Frank McGiboney, superintendent of the meter department, during which the latter told Brattan that Edwards had been "fired out of the Mountain Division" for his union activities and that the same thing would happen to him in the Central Division "if he did not watch himself." Brattan and McGiboney denied this testimony. We find, as did the Trial Examiner, that McGiboney made the statement at- tributed to him by Farrell. In view of Bailey's evident efforts to suppress the organizing efforts of the Union, discriminatory transfer of Edwards from Somerset to Pineville, the continuation of his union activities both at Pineville and Somerset, and the statements made by H. S. Edwards and McGiboney, we find that Edwards was discriminatorily discharged at Pineville because of his membership and activity in the Union. On February 1, 1938, Edwards was rehired as a meter tester at Danville in Central Division, without loss of pay from December 24, 1937, and with full restoration of seniority rights and other privi- leges. Edwards testified that he had obtained permanent employ- ment elsewhere after his discharge at Pineville, and that when offered employment by McGiboney, meter superintendent of the Cen- tral Division, he told McGiboney that he would not return to the respondents' employ unless full restitution was made for his discrim- l 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD inatory dismissal, with which demand McGiboney complied. The evidence shows that in response to an inquiry relative to Edwards, 11. -S. Edwards, meter superintendent at Pineville, wrote a letter to McGiboney, dated January 9, 1938, in which he praised Edwards, made no mention of his union activities, and recommended his employment. Edwards continued his union activities at Danville, circulating an application for a charter in an effort to establish a new local to replace one previously disbanded, solicited membership, and was generally active in. behalf of the Union. Edwards presented the charter application to George Kerlin, brother-in-law of McGiboney and substation foreman at Danville, and when circulating it at Eliza- bethtown, to Ralph Peltzer, a brother-in-law of Niemeyer, district manager at Elizabethtown, and asked them to sign. Edwards was discharged by McGiboney on November 1, 1938. He testified'that when he asked McGiboney whether his union activities were responsible for the discharge, McGiboney replied that union leaders were being silenced and discredited by discharge "as fast as we know who they are." McGiboney denied any mention of union activities to Edwards, and testified that the discharge was occasioned by the completion of the meter-testing program in the Central Divi- sion. The Trial Examiner credited the testimony of Edwards con- cerning the foregoing conversation. We find that McGiboney made the statement attributed to him by Edwards. In discharging Edwards on November 1, 1938, the respondents did not adhere to the seniority policy contained in.the policy letters issued by them in September 1937 and October 1938, wherein they stated that in decreasing their personnel they would give "due consideration to seniority in service in cases where talent and ability are equal among employees to be discharged.", Whereas Edwards had been in the respondents' employ since 1932 and worked on the meter -testing program since June 1935, Hoskins, who was employed as a meter tester, in November 1935, was retained. H. S. Edwards testified that Hoskins was retained to work on water meters on which Edwards had no experience. Edwards admitted, however, that Hoskins likewise had no experience on water meters. Moreover, Brown, the respond- ents' vice president, testified that two men hired expressly for the meter-testing program also were retained on completion of the proj- ect. The respondents did not 'contend that the ability of these men was superior to that of Edwards. Shortly after his discharge, Edwards saw Charles B. Hanna, divi- sion manager, and complained that he had left a permanent job upon the understanding that his employment in the Central Division was also to be permanent. 'Hanna told Edwards,that,he would see what THE MIDDLE WEST CORPORATION 561 he could do for him and thereafter contacted George A. Irvine, dis- trict manager at Danville, with respect to 'Edwards' reemployment. Several weeks after his conversation with Hanna, Edwards heard of an opening for a meter reader and service man and went to see Irvine. He testified that Irvine asked him if he was a member of the Union, and that he replied in the affirmative. Irvine then asked Edwards about his qualifications and finally said "You fill the bill," and stated that he would send in a pay-roll authorization to the Lex- ington office. Irvine admitted that he "might have" said to Edwards "You fill the bill," but tdenied stating that he would send a pay-roll authorization to the Lexington office or questioning Edwards as to his union membership. We credit, as did the Trial Examiner, Ed- wards' version of his conversation with Irvine. Edwards did not get the job, and a new employee by the name of Thrackmorton was hired instead. E. W. Brown, vice president of the respondents, testified that he did not know whether Thrackmorton was hired as a meter tester or not, but that his "previou"s experience would not qualify him for a meter tester any more than it would qualify him for gas dis- tribution." He also stated that Clyde Bate, an old employee, had been selected to fill the vacancy then existing in the Danville district. Irvine testified, however, that he hired Thrackmorton in December 1938 because he needed a man for service work on both electric and gas meters, meter reading, and clerical work, and that Bate was not employed until ' after Thraackmorton left in April 1939. Irvine of- fered no explanation for his failure to reemploy Edwards, and, as stated above, admitted that he was qualified to fill the position then available. In view of the fact that Edwards was discriminatorily transferred from Somerset in November 1937 and discriminatorily discharged at Pineville in December 1937, and in consideration of all the findings heretofore made with respect to Edwards, we conclude that lie was again discharged on November 1, 1938, and refused employment thereafter because of his membership and continued activity in the Union. We find- that the respondents, on November 1, 1938, discharged, and thereafter refused to'reinstate Ellis Edwards to his former or a substantially equivalent position because 'of his membership and activities in the Union, and that they thereby discriminated in regard to his hire and tenure of employment, discouraged membership in the Union, and interfered with, restrained, and coerced their em- ployees' in the exercise of the rights guaranteed in Section 7 of the Act. Ira Braswell was first regularly employed by the respondents in March 1925 as an apprentice in the meter department' at Win- 562 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD chester in the Northern Division. He later became a first-class meter man and from March 1935 until his discharge on June 1, 1938, was engaged in meter work in connection with the respondents' meter- testing program. At the time the program was inaugurated, Bras- well was the only, experienced man on the meter program in the Northern Division 17 He was a charter member of the Winchester local of the Union, becoming its treasurer, business manager, and a member of the executive board. • He arranged for meetings of the Union, secured speakers, and later served on, the committee chosen to negotiate a contract with the respondents. As one, of the most active union members in the Northern Division, his union activities were well known to the respondents."' On June 1, 1938, Hugh Hemphill, superintendent of the meter department, handed Braswell a letter reading as follows : Tt is now necessary for economic reasons to return to a normal schedule and to concentrate all meter shop work at Maysville. We, therefore, find it necessary to dispense with your services as of this date. In doing this full consideration has been given to the amount of work accomplished, workmanship, and the time in service. Braswell went to Lexington that afternoon to seek Watt's help in securing reinstatement. According to Braswell, Watt told him that there was nothing he could do for him. Watt testified that he told Braswell he would do what he could to help him, but that the fol- lowing day Braswell filed charges with the Board and thereafter Watt made no effort towards securing his reemployment. Braswell saw Watt for a second time in the latter part of June, and testified that on that occasion. Watt made disparaging remarks concerning the Board and the Union and asked, him to cooperate with the re- spondents by furnishing the names of active union members in their employ. Watt denied Braswell's version of their conversation and testified that he merely told, Braswell that he would approve any arrangement for reemployment that Braswell could work out with W. P. Hackett, district manager at Winchester. We are in agree- ment with the conclusion of the Trial Examiner that Braswell over- stated and exaggerated the substance of Watt's remarks to him and find that Watt did not make the statements attributed to him by Braswell. 17 Prior to June 1, 1938, Braswell, Charles Bate, Eveiett Estill , and Thomas Bond, were the only men engaged in testing and repairing meters in the Northern Division : Braswell having had longer continuous service with the respondents than any of the otbbr three men 1s In the latter part of April 1938 Braswell told Curtis. district manager at Mt. Sterling, about a meeting which he had arranged to be held at Mt - Sterling . Curtis said, "John L. Lewis has got to have another meeting , has he?" Biaswell then replied , "Yes, we are having a union meeting, but it is not John L Lewis," to which Curtis responded, "It is Bill Green, then." THE MIDDLE WEST CORPORATION 563 Robert Coldiron, an employee whose testimony is hereinbefore referred to, testified that on the day following Braswell's discharge, he and a group of other employees were gathered in a room in the Elizabethtown office, as was customary before reporting to work, when Zack Lusby, the district manager, entered and told them that Braswell had been fired the day before for his union activities and that it "should be a warning to the rest of us to stay out of it." Ellis Edwards, who was also present on this occasion, corroborated Coldiron's testimony as to the incident. Lusby denied ever having made such a statement. The Trial Examiner found Coldiron to be a credible witness and attached no credence to Lusby's denial: We find that Lusby made the statement as testified to by Coldiron and Edwards. The respondents 'contend that Braswell was discharged because of the completion of the meter-testing program and because he was less efficient than Bate and Estill, who were retained.la Brown, vice- president of the respondents, testified that he decided Braswell was inefficient in 1925 "the first time I ever saw him," and that he "didn't want him in -the Mountain Division." Hemphill, meter superin- tendent, testified that he selected Braswell for dismissal in pref- erence to Bate and Estill on the basis of his "idea of what each man was doing" and cited in support of his action the following work record allegedly showing the comparative efficiency of the four men doing meter testing work for the period between May 25, 1935 to June' 4, 1938: Type of test Bate Estill Braswell Bond Complaint_______________________ _______________ 72 17 411 56 New meters______________________ ______________________ 459 282 1088 445 Old meters_______________________________________________ 5983 4965 3457 3461 Total___________________________________ 6514 5164 4956 3962 Percent of total __________________________________________ 31 6 25 2- 24 0 19 2 Hemphill admitted that he had not compiled the above work record prior to discharging Braswell, and it is impossible to believe that his asserted ability to estimate the amount of work performed by the four men over a period of 3 years would reveal that Estill had tested 1.2 per cent more meters than Braswell. Moreover, Braswell's ap- 19 Bond was discharged at the same time as Braswell , but was rehired in October 1'038 as a member of the inventory crew Bond , who had joined the Union, testified that he "dropped out" prior to his discharge because he "Just lost interest ." Bate and Estill likewise resigned from the Union Bate testified that he could not remember the date he resigned, but that it was before Braswell iias discharged , and that his decision to do so was founded on the "general welfare of the employees . we were not making any progress " Estill, who had been secretary of the local , also testified that he did not remember exactly when he gave up his membership , but that it was motivated by a "lack of interest." 413597-42-voh, 28-37 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD - parent deficiency in the number of old meters above shown to have been tested by him is more than compensated for by his completion of almost three times as many complaint tests as were made by all of the other three men combined, which latter type of test Hemphill admitted took more time because it was "often necessary to travel a considerable distance to make 'that -test." Braswell was paid be- tween $15 and $20 per month more than any other man in the meter department, and as late as October 1, 1937,-his salary was increased from $127.50 to $135 a month. It is impossible to reconcile this action by the respondents toward the end of a 3-year period during which, as contended in their brief, Braswell's efficiency had decreased 66 per cent. Furthermore, nothing was said to Braswell either before or at the time of his discharge to the effect that his work was in any way unsatisfactory. In fact during the spring of 1938 when Bras= well had an opportunity to secure another position and asked Wester, the respondents' personnel director, what his future employment status would be on completion of the meter-testing program, Wester told him that his work was satisfactory and that if he wanted to continue with the respondents there was no reason why he should not do so. In view of the foregoing, we find no merit in the respondents' contention that Braswell was inefficient. Nor do we find support in the record for the respondents' further contention that Bate and Estill were retained also because of their versatility in performing various types of work in the meter department. The evidence fails to show that there existed or that Braswell was unable to perform any work in the meter department which allegedly necessitated the retention of Bate and Estill. Notwithstanding our finding that Bras- well had given an inaccurate account of his conversation with ,Watt, Braswell's known leadership in the activities of the Union in and around Winchester, the respondents' efforts, as hereinbefore found, to discredit and discourage membership in the Union, the failure of the respondents to sustain their contention that Braswell was inefficient and incapable of performing work other than that involved in the meter-testing program, and the respondents' violation of their announced labor policy in disregarding Braswell's extensive expe- rience and length of service in their employ, all lead us to the con- clusion, reached also by the Trial Examiner, that Braswell was dis- charged because of his membership and activity in the Union. We find that the respondents, on June 1, 1938, discharged, and thereafter refused to reinstate Ira Braswell to his former or a sub- stantially equivalent position because of his membership and activi- ties in the Union, and that they thereby discriminated in regard to his hire and tenure of employment, discouraged membership in the THE MIDDLE WEST CORPORATION 565 Union, and interfered with, restrained, and coerced their employees in the exercise of the rights guaranteed in' Section 7 of the Act. Robert J. Lindsay was first employed by the respondents on Feb- ruary 22, 1926, as a mechanic's helper. He was later promoted to the position of plant operator at Paducah, where except for - a brief period in' 1937, he worked for over 9 years until his discharge on June 22, 1938. Lindsay joined the Union in May 1937, became an officer of the Paducah local, was its representative at a union con- ference held in Lexington, and was otherwise known to be active in union affairs. In the latter part of May 1937, shortly after L. F. Dempsey, power plants superintendent, was put in charge of the Paducah plant, Dempsey'questioned J. V. McGregor, chief engineer at Paducah, con- cerning the various employees and particularly Lindsay. McGregor outlined- the nature of Lindsay's duties and was thereupon instructed by. Dempsey to transfer Lindsay to repair work at a lower rate of, pay. Lindsay complained of his demotion to W. H. Wilson, international representative of the Union, who thereafter discussed Lindsay's griev- ance with Dempsey and Watt. On July 7, 1937, Lindsay was returned to his former position as operator and thereafter was granted several pay increases which raised his former salary of $120 to $140 a month.' Dempsey testified that he ordered Lindsay's demotion because of his inefficiency, but that Lindsay was restored, to his former job as plant operator due to an increase in plant operation and because "we gave preference to those older men." McGregor testified that Lindsay failed to perform small repair jobs normally assigned to operators when the plant was not in operation and that "he usually always had some excuse he didn't have time, or something like that." S. F. Brown, also a plant operator at Paducah and a witness for the re- spondents, testified that he found unfinished work when he went on duty following Lindsay's shift, but that he "couldn't say whether he (Lindsay) could have gotten it all done before I got there or not." Brown admitted on cross-examination that Lindsay "seemed to be" a "pretty good plant operator." Lindsay was never informed by the respondents that his demotion was due to unsatisfactory work, and it is not reasonable to assume that the respondents would have accorded him preference in ordering his reinstatement as an operator and sub- sequently increasing his pay if in fact he was inefficient. We are con- vinced that neither was Lindsay inefficient nor was his alleged ineffi- ciency the cause of his demotion. Indicative of the true motive for his demotion is Lindsay's testimony that the day before he was reinstated as an operator, E. R. McBride, foreman of the repair crew to which Lindsay had been assigned, told him that another operator was to be put on the Paducah plant and that he thought Lindsay would get the job if 566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD he dropped out of the Union and "let the union go to Hell." McBride denied mentioning the Union in his conversation with Lindsay, but admitted telling him that another operator was to be put on and that he discussed the possibility of Lindsay's obtaining the job. He also testified that McGregor had asked him if he thought Lindsay had "straightened out" and would make a good operator. We credit, as did the Trial Examiner, Lindsay's version of the foregoing conversa- tion and find that McBride made the statements as testified to by Lind- say. We have already found that Dempsey, who ordered Lindsay's transfer, was hostile to the Union, and in view of Lindsay's known union activities and all the other circumstances surrounding the inci- dent of his transfer, we find, in accordance with the conclusion of the Trial Examiner, that the real reason for Lindsay's demotion was his activity in the Union. On the night of June 22, 1938, a 2,300-volt cable exploded in the Paducah plant, causing an interruption in service which lasted from 11: 30 p. in. to 12: 10 a. in. Lindsay, who was on duty at the time, sent an employee of another company, who happened to be present, to summon McGregor from his home to the plant. When McGregor arrived, he endeavored to locate the trouble and, following a second explosion, decided that the quickest way to restore service would he to throw the disconnecting switches located outside the plant., With the assistance of Lindsay and Stice, a night service man who had just arrived at the plant, McGregor threw the switches and service was restored. On July 1, 1938, Lindsay was discharged by McGregor acting under orders from Dempsey, allegedly because of his prior inefficiency and his failure promptly to restore service after the breakdown on June 22. McGregor testified that service was restored 10 minutes after he arrived at the plant, and that Lindsay himself could have disconnected the outside switches in 5 minutes. Lindsay, however, testified that it took approximately 20 minutes to restore service after McGregor's arrival. Whatever time was taken to rectify the trouble, it is evident that Lindsay did not act unreasonably in sum- moning McGregor to the plant rather than attempt to restore service by himself. Lindsay's conduct under the circumstances was con- sistent with a rule of the respondents which provided that "where employees are called upon to do work which they consider hazardous and which in their judgment is not provided with sufficient safeguards they are expected to bring the matter to the attention of the foreman before commencing such work." S. F. Brown, a plant operator here- inbefore referred to, testified that on one occasion when a breakdown occurred while he was on duty he telephoned to the power plants' superintendent who came to the plant from his home; and that, ap= THE MIDDLE WEST CORPORATION -567 proximately 25 minutes elapsed before they had been able to restore service. Brown, vice president of the respondents, testified that the re- spondents would not customarily discharge an operator for making a single mistake if his record was good, but maintained that Lindsay's efficiency prior to June 22 also was taken into consideration. We have previously found, however, that the evidence does not sustain the respondents' contention that Lindsay was inefficient, and even assum- ing that he was derelict in the performance of minor duties, the increase in Lindsay's salary, the last of which was granted shortly before his discharge, belie any assertion by the respondents that such omissions were regarded as serious. It is also significant that the discriminatory demotion and subsequent discharge of Lindsay were both effected by Dempsey, it nowhere appearing that McGregor, who as Lindsay's immediate superior logically would be the one to urge disciplinary measures for inefficiency, ever suggested that Lindsay be either demoted or discharged. A consideration of all the evi- dence impels us to conclude that Dempsey, in furtherance of his previously expressed opposition to the Union, availed himself of the breakdown incident as a pretext to discharge Lindsay because of his membership and activity in the Union. We find that the respondents discharged Robert J. Lindsay on July 1, 1938, and thereafter refused to reinstate him to his former or a substantially equivalent position because of his membership and activity in the Union; and that they thereby discriminated in regard to his-hire and tenure of employment and discouraged membership in the Union, and interfered with, restrained, and coerced their 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 We find that the activities of the respondents set forth in Section III, A and B above, occurring in connection with the operations of the respondents described in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondents have engaged in certain unfair labor practices, we shall order that they cease and desist from such practices and, to effectuate the purposes of the Act, we shall order the respondents to post notices stating that they will not engage in the 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conduct from which they are ordered to cease and desist. The re- spondents' employees will thus be assured that they may exercise the rights guaranteed by the Act without fear of interference, restraint,, or coercion. As a further means of removing and avoiding the consequences of the respondents' unfair labor practices, we shall order the respondents to take certain affirmative action more particularly described below. Having found that the respondents discriminated in regard to the hire and tenure of employment of James B. Crawford, Ellis Edwards, Ira Braswell, and Robert J. Lindsay, we shall order the respondents to offer each of said persons full reinstatement to his former position, and to make each whole for any loss in pay he may have suffered by reason of such discrimination, subject to the follow- ing qualification. The charges herein were first filed with respect to Crawford on June 27, 1938, Edwards on May 20, 1939, Braswell on June 2, 1938, and Lindsay on August 23, 1938. The respondents con- tend in their answer that the delay of the complainants and the Union "in obtaining the issuance of the complaint" is a bar both to reinstate- nient and to the payment of back pay. We find merit in the re- spondents' contention only in so far as it pertains to the effect of the delay in the filing of charges upon the period for which we will order the payment of back pay. Since charges were first filed ap- proximately 1 year after Crawford's discharge and almost 7 months after Edwards', we shall order the respondents to make them whole, only for the period from the date of the filing of charges to the date of the respondents' offer of reinstatement by payment to each of them of a sum equal to that which he normally would have earned as wages during said period, less his net earnings during said period.22 Since there was no appreciable delay in the filing of charges with respect to Braswell aiid Lindsay, we shall follow our usual practice and order the respondent to make them whole by payment to each of them of a sum of money equal to that which he normally would have earned as wages from the date of his discharge to the date of the offer of reinstatement, less his net earnings during said,period. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Board makes the following : 22 By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent, which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R B . 440. Monies received for work performed upon Federal , State, county, municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B., decided by United States Supreme Court, November 12, 1940. THE MIDDLE WEST CORPORATION 569 CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, affiliated with the A.-F. of L., is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By discriminating in 'regard to the hire and tenure of, employ- ment of James B. Crawford, Ellis Edwards, Ira Braswell, and Rob- ert J. Lindsay, thereby discouraging membership in International Brotherhood of Electrical Workers, affiliated with the A. F. of L., the respondents have engaged in and are engaging in unfair labor practices, within the meaning of Section 8 (3) of the Act. 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the. respondents have engaged in and are engaging in unfair labor prac- tices within the meaning of Section 8 (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. 5. The respondent has not, by the circulation of an executive policy letter or by the seizing of union records from the locker of a union employee, engaged in unfair labor practices, within the mean- ing of Section 8 (1) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respond- ents, Kentucky Utilities Company and Kentucky Power & Light Company, Lexington, Kentucky, and their officers, agents, succes- sors, and assigns, shall: 1. Cease and desist from : (a) Discouraging membership in International Brotherhood of Electrical Workers, affiliated with the A. F. of L., or any other labor, organization of their employees, by discharging or refusing to rein- state any of their employees or in any other manner discriminating in regard to their hire or tenure of employment or any term or condi- tion of employment; (b) In any other manner interfering with, restraining, and co- ercing their employees, in the exercise of their right to self-organi- zation, to form, loin, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to en- gage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD e 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Offer to James B. Crawford, -Ellis Edwards, Ira Braswell, and Robert J. Lindsay, immediate and full reinstatement to their 'former positions or to substantially equivalent positions, without prej- udice to their seniority and other rights and privileges; (b) Make whole they said James B. Crawford for any loss he may have suffered by reason of the respondents' discrimination against him by payment to him of a sum of money equal to that which he normally would have earned as wages during the period from June ,27, 1938, the date on which a. charge was first filed as to him, to the -date of the respondents' offer of reinstatement, less his net earnings during that period; (c) Make whole the said Ellis Edwards for any loss of pay he may have suffered by reasons of the respondents' discrimination against him by payment to him of a sum of money equal to that which, he normally would have earned as wages during the period from May 20, 1939, the date on which a charge was first filed as to him, to the date of the respondents' offer of reinstatement, less his net earnings during that period; (d) Make whole the said Ira Braswell and Robert J. Lindsay for any loss of pay they may have suffered by reason of the respondent's discrimination against them by payment to each of them of a sum of money equal to that which he normally would have earned as wages during the period from the date of his discharge to the date of the respondents' offer of reinstatement, less his net earnings during said period ; (e) Post immediately in conspicuous places on the respondents' premises, and maintain for a period of at least sixty (60), consecu- tive days from the date of posting, notices to their employees, stat- ing: (1) that the respondents will not engage in the conduct from which they are, ordered to cease and desist in paragraphs 1 (a) and (b). of this Order; (2) that the respondents will take the affirmative action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order; and (3) that the respondents' employees are free to become or remain members of International Brotherhood of Electrical Workers, affili- ated with the A. F. of L., and that the respondent will not discrimi- nate against any employee because-of membership or activity in said -labor organization; (f) Notify the Regional Director for the Ninth Region in writing within ten (10) days from the date of this Order what steps the respondents have taken to comply therewith. IT IS FURTHER ORDERED that the complaints, in so far as they allege that the respondents, by circulating an executive policy letter-and,by THE MIDDLE WEST CORPORATION 571 seizing union records from the locker of a union employee, have engaged in unfair labor practices within the meaning of Section 8 (1) of the Act, We, and they hereby are, dismissed. AND IT IS FURTHER ORDERED that the complaints against The Middle West Corporation, Chicago, Illinois, be, and they hereby are, dismissed. - CHAIRMAN HARRY A. MILLIS took no part in the consideration' of the above Decision and Order.