Arkansas-Missouri Power Corp.

National Labor Relations Board - Board Decisions

Jun 21, 1946

68 N.L.R.B. 805 (N.L.R.B. 1946)

In the Matter of ARKANSAS-MISSOURI POWER CORPORATION and UTILITY
WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH CONGRESS OF
INDUSTRIAL ORGANIZATIONS
In the Matter of ARKANSAS-MISSOURI POWER CORPORATION and UTILITY
WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH CONGRESS OF
INDUSTRIAL ORGANIZATIONS
Cases Nos. 15-R-1138 and 15-C-1000, respectively.-
Decided June 21, 1946
DECISION
AND
ORDER
On December 27, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain af-
firmative action, as set forth in the copy of the Intermediate Report
attached hereto. The Trial Examiner further found that the respondent
had interfered with the election conducted by the Board among the
respondent's employees for the purpose of determining a collective bar-
gaining representative, and recommended that the election be set aside.
Thereafter, the respondent filed exceptions to the Intermediate Report
and a supporting brief. On May 16, 1946, the Board at Washington,
D. C., heard oral orgument, in which the respondent and the Union
participated.
The Board has considered the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rulings
are hereby affirmed. The Board has considered the Intermediate Report,
the respondent's exceptions and brief, and the entire record in the case,
and to the extent consistent with the Decision and Order herein, hereby
adopts the findings and conclusions of the Trial Examiner, and finds
merit in the respondent's exceptions.
We do not agree with the following findings of the Trial Examiner:
(1) That the respondent's transfer of Thomas M. Reagan to the
maintenance crew was discriminatory within the meaning of Section 8
68 N. L. R. B., No. 109.
805
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(3) of the Act. Van Winkle testified without contradiction that after
Reagan had failed on two separate occasions to prime a centrifugal
pump, a very simple operation, and had offered a scientifically incorrect
explanation for these failures, he became convinced that Reagan could
not be trusted as an operator and asked his superior Greenwell to be
relieved of further responsibility for using Reagan as such. Greenwell
thereupon transferred Reagan to the maintenance crew. The Trial Ex-
aminer found that Reagan's errors were no more than a pretext seized
upon by Van Winkle and Greenwell to justify Reagan's transfer and
thus furnish an effective object lesson before the election, intended to
discourage union activity. We do not believe that the evidence in the
record justifies this finding.
The Trial Examiner rests his pretext argument in part on the con-
tention that Reagan was an acceptable employee until his prominence
in union activity, of which the respondent had full knowledge, caused a
reversal of attitude. The record does not show that Reagan was promi-
nent in union activity, much less that his prominence increased before
his transfer. The only evidence of Reagan's participation in union affairs
before his transfer was his membership in the Union which he joined
in December 1943, about 9 months prior to his transfer, at a meeting
held in his home. The Trial Examiner has also stated that Reagan's
transfer was in exact accord with the prediction made by Van Winkle
in June 1943. As to this point, Van Winkle's prediction was that if the
petitioning union won the election then pending, the respondent would
have means of separating union from non-union men and of making it
so hard for the union men they would resign. In the present instance,
Reagan was transferred before and not after the election and when he
announced his intention to quit, his foreman, Abernethy, tried to dis-
suade him from taking that step. It is apparent, therefore, that Reagan's
transfer was not in exact accord with Van Winkle's prediction made
15 months previously. In addition, the respondent's conduct toward
Reagan before and after the latter's transfer casts further serious doubt
on the pretext argument. Thus, despite his knowledge of Reagan's activi-
ties in behalf of the IBEW, Van Winkle within a month following
his June 1943 prediction to Reagan promoted the latter to the position
of plant operator and increased his salary. Again, within 2 weeks of his
conversation with Lee Reagan, Van Winkle raised the complainant
Reagan's salary. Following his transfer to the maintenance crew,
Reagan's child became ill. On two separate occasions in October 1944,
Greenwell readily gave Reagan permission to leave the crew at the
place where it was working to return home for the purpose of caring
for his sick child. Reagan was paid for his time off which aggregated
about 10 days. On the evening of one of these leave days, Reagan
drove union officials to nearby towns on union business. Apparently, the
ARKANSAS-MISSOURI POWER CORPORATION 807
respondent knew of this trip by Reagan within a few hours after it
occurred but made no attempt at disciplinary action. Finally, as stated
previously, when Reagan announced his intention to quit, his foreman
Abernethy tried to persuade him to remain. This evidence, in our opin-
ion negatives the Trial Examiner 's conclusion that the ostensible expla-
nation for Reagan's transfer was a pretext and that the real reason
was the latter's union membership and activity.
Accordingly, we find that the evidence fails to establish (a) that
Reagan was transferred to the maintenance crew because of his union
membership and activities , and (b ) that Reagan 's quitting of his em-
ployment was a direct consequence of his discriminatory transfer to a
less desirable job on the maintenance crew.
(2) That the respondent's refusal to rehire Reagan was discrimina-
tory. Since we have found that Reagan 's transfer was not violative of
the Act and that his quitting was not a direct consequence of his dis-
criminatory transfer, we also find that the independent evidence con-
nected with Reagan's application for reemployment fails to establish that
the respondent refused to rehire Reagan because of the latter's union
membership and activities.
(3) That as the result of the questioning of and statements made to
subordinates by supervisors Van Winkle, Greenwell, Abernethy and
Oates, the respondent interfered with, restrained, and coerced its em-
ployees in violation of Section 8 (1) of the Act. On August 1, 1944,
the respondent's president sent a letter to all managers and plant oper-
ators stating, inter alia : "You are all aware of my attitude in this matter.
Our employees always have had the right to join, or refuse to join, any
organization they wish and I will not.try to influence any of them. I
have stated to you many times that none of our supervisory employees
are to express an opinion for or against any labor organization, or
indeed, any other organization, and I am writing you this letter to repeat
these instructions-that none of you are to try to coerce or influence
any of our employees for or against any union." This letter, in ac-
cordance with instructions from the president, was posted on all of the
respondent's bulletin boards which were accessible to the rank and file
employees. On September 1, 1944, respondent's president sent the super-
visors a second letter which was likewise posted on the bulletin boards.
This letter assured the employees that, regardless of the outcome of the
election, the management would continue and, where conditions per-
mitted, increase the benefits then enjoyed by the employees and reiter-
ated the respondent's position of neutrality.
In our opinion, the respondent by these letters of its president ade-
quately brought home to the employees its neutral position so that the
employees had no just cause to believe that the supervisors who had
engaged in anti-union activity either before or after the posting of the
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
letters were acting in behalf of the respondent.' Because of this, and
in the absence of any evidence that the respondent authorized or rati-
fied their activities, we find that the respondent is not responsible for
the anti-union conduct of supervisors Van Winkle, Greenwell, Aber-
nethy, and Oates.
(4) That the respondent's publication and distribution of the various
documents and letters set out in the Intermediate Report is an integral
part of the respondent's illegal conduct and are violative of Section 8
(1) of the Act. We have found above that the respondent did not en-
gage in unlawful conduct. These writings must therefore be considered
within their own framework rather than against a broader background
of illegal conduct, as the Trial Examiner has construed them. Standing
by themselves, the writings cannot fairly be construed to transcend the
limits of free expression? Accordingly, we find that the publication
and distribution of the various letters and documents described in the
Intermediate Report were not acts of illegal interference within the
meaning of Section 8 (1) of the Act.
(5) That the election held by the Board on November 8 and 9, 1944,
did not fairly reflect the untrammeled wishes of the respondent's em-
ployees. The Trial Examiner derives this finding from the various acts
of the respondent which he found to be illegal. Inasmuch as we have
reversed all of the Trial Examiner's unfair labor practice findings, we
shall, in addition to dismissing the complaint, overrule the Union's ob-
jections to the election and dismiss its petition for investigation and
certification of representatives.
ORDER
Upon the basis of the foregoing findings of fact and the entire record
in the case, and pursuant to Sections 9 (c) and 10 (c) of the National
Labor Relations Act, and pursuant to Article III, Sections 9 and 10,
of the Board's Rules and Regulations-Series 3, as amended,
IT IS HEREBY ORDERED that the complaint against the respondent
Arkansas-Missouri Power Corporation, Blytheville, Arkansas, be, and
it hereby is, dismissed; and
IT IS HEREBY FURTHER ORDERED that the petition for investigation
and certification of representatives of employees of Arkansas-Missouri
Power Corporation, Blytheville, Arkansas, filed by Utility Workers
I See Matter of Houston Shipbuilding Corporation, 56 N. L. R. B. 1684.
2 Contrary to our dissenting colleague, we find nothing in these documents which reflects
any intimation of economic reprisal against employees for the exercise of their statutory rights.
This is particularly manifest when these documents are considered in the light of the re-
spondent's previous assurance , mentioned above, that regardless of the outcome of the election,
the management would continue and, where conditions permitted , increase the benefits then
enjoyed by the employees.
ARKANSAS-MISSOURI POWER CORPORATION 809
Organizing Committee, affiliated with Congress of Industrial Organiza-
tions, be, and it hereby is, dismissed.
R. JOHN M. HOUSTON, dissenting in part:
I consider that the respondent violated Section 8 (1) of the Act by
its conduct in publishing and distributing to its employees the petition
and newspaper editorial concerning the anti-union sentiments of a group
of employees at a nearby plant, and in advertising and distributing to
its civilian employees its letter of October 17, 1944, addressed to those
of its employees then in the armed services.
The use of the anti-union petition and the newspaper editorial can
find reasonable explanation only in an attempt by the respondent to
achieve indirectly what the Act prohibits an employer from doing di-
rectly. The petition and the newspaper editorial disclose that a number
of employees at another plant in the community in which the respon-
dent's plant is located had expressed a desire against collective bargain-
ing. The respondent, involved, by its own admission, in a contest against
the petitioning union in the instant case, sought to induce acceptance
by its own employees of this inclination on the part of individuals some-
what similarly situated. Its motive was to produce like action on the
part of its own employees. Had it suggested such an attack on the union
directly to its employees, I have no doubt that its conduct would have
been held by this Board to be an unfair labor practice. There appears
to be no valid distinction in principle merely because of a difference in
method utilized to reach the same illegal objective.
In addressing its employees then in the armed forces, the respondent
was careful to point out that the approaching election was viewed in
its mind as a contest between the petitioning union and itself. It also
emphasized that although only those employees in the armed services
who presented themselves at the polls would be allowed to vote, never-
theless it would constitute itself the protector of the absent servicemen.
In my judgment the effect of this gratuitous assurance to the servicemen
was to engender doubt in the minds of civilian employees as to the effect
upon their economic status of the return of the servicemen. It is ap-
parent that the respondent sought to utilize the potential economic dis-
location caused by the return of servicemen as a restraint upon the
exercise of the right of its civilian employees to choose a representative
for collective bargaining. The foregoing considerations convince me
that the respondent coerced its employees so as to make impossible a
free election, and I therefore dissent from the action of my colleagues
in dismissing this portion of the complaint and in refusing to set aside
the election.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
Mr. Lewis Moore, for the Board.
Buck & Sudbury, by Messrs C M Buck and J. G. Sudbury, of Blytheville,
Ark., for the Respondent.
Mr. William R. Henderson, of Little Rock, Ark., and Mr. Rufus L. Simpson of
Blytheville, Ark., for the Union.
STATEMENT OF THE CASE
On May 4, 1944, Utility Workers Organizing Committee, affiliated with Congress
of Industrial Organizations, herein called the Union, filed with the Regional
Director for the Fifteenth Region (New Orleans, La.), of the National Labor
Relations Board, herein called the Board, a petition alleging that a question
affecting commerce had arisen concerning the representation of employees of
Arkansas-Missouri Power Corporation, herein called the Respondent, at its plants
in various places in the State of Arkansas and Missouri and requesting an investi-
gation and certification of representatives pursuant to Section 9 (c) of the National
Labor Relations Act, Stat. 449, herein called the Act. Pursuant to notice of
hearing, duly served on the parties, a hearing was held on September 1, 1944, at
Blytheville, Arkansas. Thereafter on October 9, 1944, the Board issued its Decision
and Direction of Elections providing for an election by secret ballot "among all
plant operators, plant helpers, linemen, linemen's helpers, servicemen, maintenance
men and helpers, motor testers and repairmen, and storekeepers and store clerks
of [the Respondent] excluding chief plant operators, line foremen, maintenance
foremen, and combination local managers and servicemen, and all other supervisory
employees with authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such action." This
election was held on November 8 and 9, 1944 At its close, observers for the Re-
spondent, the Union and the Board signed a Tally of Ballots certifying that of
approximately 88 voters 34 had voted for and 49 against the Union while one
ballot cast was challenged and one adjudged void. On November 14, 1944, the Union
filed objections to the conduct of the election requesting "that the result of said
election be set aside because of intimidation and coercion by the agents and/or
officers" of the Respondent. On June 5, 1945, the Regional Director issued a
Report on Objections finding "that the objections do raise substantial and material
issues with respect to the election" and recommending "that the Board sustain the
objections and set aside the results of the election." Thereafter on June 19, 1945, the
Respondent filed with the Board its exceptions to the Regional Director's report,
and on June 27, 1945, an extended supplement thereto. The latter document was
signed by James Hill, Jr., president of the Respondent, and sworn to before a
Notary Public. It states Respondent's position on each of the issues raised and
suggests that the petition of the Union and the report of the Regional Director
be dismissed by the Board. On July 2, 1945, the Board issued an order directing
that a hearing be held on the objections to the conduct of the election.
On November 16, 1944, the Union filed a charge with the Board, and on October
19, 1945, an amended charge. On October 19, 1945, the Board through its Regional
Director for the Fifteenth Region, issued its complaint against the Respondent
alleging that it had engaged in and was engaging in unfair labor practices within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of the Act
On October 17, 1945, the Board issued an order directing that the representation
' In Case No 15-R -1138 , 58 N L . R B. 842
ARKANSAS-MISSOURI POWER CORPORATION 811
proceeding be consolidated with the unfair labor practice proceeding pursuant to
Article II, Section 36 (b) and Article III, Section 13 (c) (2) of its Rules and
Regulations-Series 3, as amended. A copy of the complaint accompanied by notice
of hearing in the consolidated cases was duly served on the Respondent and the
Union.
With respect to the unfair labor practices the complaint alleges in substance,
that (1) the Respondent on or about September 23, 1944, demoted and transferred
T. M Reagan from a position in its Blytheville power plant to a job in a con-
struction crew and has since failed and refused to reinstate him to his former
position "because of his membership and activities in the Union and because he
engaged in concerted activities with other employees of the Respondent for the
purposes of collective bargaining and other mutual aid and protection"; (2) that
such demotion and discharge "did force and compel" Reagan to resign on or about
November 9, 1944, since which date the Respondent has refused and failed to
reinstate him, and (3) the Respondent's named officers and agents by specified acts
interfered with, restrained, and coerced its employees in the exercise of their
rights guaranteed in Section 7 of the Act.
On October 29, 1945; the Respondent filed its answer which admits the
allegations of the complaint as to its corporate organization, the nature and extent
of its business and that the Union is a labor organization within the meaning of
the Act. The answer denies that the Respondent has committed any unfair labor
practices and states affirmatively that "the membership of said Reagan in the
Union and his union activities had nothing whatever to do with his transfer" and
that "Reagan voluntarily resigned from the employ of the Respondent."
Pursuant to notice, a hearing was held on November 19 and 20, 1945, at Blythe-
ville, Arkansas, before the undersigned, Charles E. Persons, the Trial Examiner
duly designated by the Chief Trial Examiner The Board and the Respondent were
represented by counsel and the Union by two of its officials. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence was
afforded all parties At the beginning of the hearing the Board moved that the
Respondent's answer be made more definite as to the reason for the transfer of
employee T. M Reagan This motion was denied. At the conclusion of the presenta-
tion of testimony, all parties waived oral argument before the undersigned. The
parties were duly advised that they had the privilege of presenting briefs for the
consideration of the Trial Examiner. No briefs have been received.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT2
Arkansas-Missouri Power Corporation is a Delaware corporation, having its
principal office in Blytheville, Arkansas, and power plants and other installations
at various places in northeast Arkansas and southeast Missouri. The corporation
operates a system for the distribution of electric power and incidentally operates
7 ice plants. It generates or purchases about 87 percent of its power in Arkansas,
and about 13 percent in Missouri. It distributes approximately 60 percent in Arkan-
2 These findings are based on allegations in the complaint admitted by the respondent in its
answer and on a stipulation of the parties executed at the hearing. The data herein stated are
substantially the same as those set forth in the Board's decision and order in the representation
proceeding At the hearing, counsel for the respondent stated that these data had not mate-
rially changed during the intervening year.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sas and approximately 40 percent in Missouri. During 1943, its purchases amounted
to $639,184, and its sales amounted to approximately $1,973,262. The Respondent
sells electricity to numerous manufacturing plants which are engaged in interstate
commerce.
The Respondent admits that it is engaged in commerce within the meaning of the
Act.
II THE ORGANIZATION INVOLVED
Utility Workers Organizing Committee, affiliated with the Congress of Industrial
Organizations, is a labor organization which admits to membership employees of
the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
In the spring of 1943 the International Brotherhood of Electrical Workers,
affiliated with the American Federation of Labor, herein called I B. E W, in-
formed the Respondent that it had membership among the employees. Thereafter,
under advice of a Board agent, I. B. E. W. and the Respondent entered into a
consent election agreement on May 24, 1943. The appropriate unit was defined as :
All employees of the Company including linemen, helpers, foremen, trouble
shooters, meter readers, ice plant employees ; excluding Superintendents, District
Managers, Local Managers, and Clerical Employees, and all employees at
the Poplar Bluff and Osceola ice plants.
In an election held on June 9 and 10, 1943, I. B. E. W. was defeated by a large
majority and thereafter the I. B. E. W. ceased its efforts to organize the employees
In the fall of 1943 the Union began an organizational campaign among the
Respondent's employees.3 On April 3, 1944, William R. Henderson, sub-regional
director of the Union and its representative of record in the instant proceeding,
wrote a letter to the Respondent claiming to represent a majority of the employees.
Efforts, under the Board's auspices, to arrange a consent election agreement failed
Thereafter, as stated above, the Board held a hearing on September 1, 1944, and
conducted an election on November 8 and 9, 1944, in which the Union was
defeated.
B. Objections to the Election
1. Documents sent to its employees
by the Respondent
It is contended that the election should be set aside because of (a) the acts
of the Respondent in sending certain documents to its employees and (b) the
transfer and demotion of Thomas Martin Reagan 4 On September 19, 1944, an
editorial appeared in a Blytheville newspaper relating to a petition by numerous
employees of a local plant in which they had expressed their opinion that "there
have always been a majority of the regular employees opposed to the unionization
of our factory" and called on the C. I. O. Union concerned to "leave Blytheville
and cease their efforts to stir up strife and discontent among peaceful, satisfied
3 The membership card of Rufus L. Simpson, president of the Union was dated in Sep-
tember 1943.
* Reagan as a witness gave his name as Martin Reagan. He was so known in the plant.
Respondent 's records carried his name as stated here . In the Board's complaint he is errone-
ously referred to as M . T. Reagan.
ARKANSAS-MISSOURI POWER CORPORATION 813
workers." The editorial, copies of which the Respondent admittedly sent by mail
to each of its employees, concludes :
We sincerely believe most of the Blytheville garment workers are satisfied
with working conditions at the local plant, and that the majority would be
perfectly willing to continue with things as they are without the union people
taking a hand in their affairs. We also recognize and respect the rights of the
pro-Union group.
But we hold that the question of union membership is for the workers
themselves to decide. Apparently, 165 of them already have made up their
minds. They say they do not want the union. Since the NLRB did not carry
out its scheduled election and permit the workers to say it with ballots, the
NLRB should give all consideration to the plea of this group.
It seems to us a fair and reasonable request.
The petition was published as a full page advertisement in the local paper
together with the names of 168 purported signers. Copies of this advertisement
were admittedly distributed to its employees by the Respondent. Copies were also
posted on the Respondent's bulletin boards. In explaining its action the Respondent
said, in [its] letter of June 27 sent to the Regional Director in protesting his
report on the Union's objections to the election:
Letters concerning the * * * dispute, which had existed for some months,
were sent to the employees to answer some of the questions they had asked
regarding the status of this dispute between the C. I. O. and the [local com-
pany's employees,] It is rather difficult for those who have always lived in
urban territory to appreciate the interest manifested in a trade territory in
some matter affecting a small proportion of the people in one town There
is hardly a citizen in this part of the country who does not know something
of the dispute which has existed between the C. I. O. and [the local com-
pany] and this company was informed that several of its employees felt that
such dispute might affect their welfare For this reason the company felt
that it should inform its employees, as it has always done about any other
matter affecting the trade territory of the status of this dispute and for that
purpose sent them reprints [of the editorial and of the petition as published].
The employees who were members of the C I. O. union concerned published an
answer to the petition of the non-union employees covering in question and answer
form the issues therein It is agreed that this document was not distributed to the
employees by the Rcspondent.s
Under date of October 17, 1944, the Respondent addressed a letter to its em-
ployees in the armed services Shortly thereafter it inserted a full page advertise-
merit in a Blytheville newspaper stating, inter alia, three reasons for opposition to
the Board order directing an election and incorporating its letters to the employees
absent on military duty. Copies of this advertisement were also posted on the bulle-
tin boards in Respondent's plants The advertisement reads as follows :
THE FOLLOWING STATEMENT IS BEING PUBLISHED FOR THE INFORMATION
OF ALL MEMBERS OF OUR ORGANIZATION AND THE PUBLIC
To All Ark-Mo Power Employees:
The National Labor Relations Board has directed that an election be held
November 8 and 9 to determine whether or not the Utility Workers Organ-
5 Reagan was in error in testifying that the respondent distributed it among the employees.
Chief Engineer Pollock testified that he did not recall whether it was so distributed.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
izing Committee, C. I. 0., shall represent many of you in dealing with the
management of the Company in all matters affecting working conditions, wages,
etc. This election will be held according to the order.
We objected to this action for the following reasons:
1. There is no dispute between the employees and the management of
this Company.
2. The National Labor Relations Board refuses to allow our working
foremen and working combination local managers-servicemen to vote in
this election.
3. The National Labor Relations Board denies the Company' s request
that eligible employees on leave of absence to the Armed Forces be allowed
to vote by mail, but provides in its order that only those persons in the
Armed Forces who are present at a polling place on the date of the
election will be allowed to vote.
SO IN EFFECT, THIS ACTION DENIES EMPLOYEES OF OURS IN THE ARMED FORCES ANY
VOICE IN DECIDING WHETHER OR NOT THEY WILL BE REPRESENTED BY THE C. I. O.
ARKANSAS-MISSOURI POWER CORPORATION,
GENERAL OFFICE,
Blytheville, Arkansas, October 17, 1944
To Our Employees in the Armed Services:
The National Labor Relations Board has ordered an election to be held
sometime before November 8 to determine whether certain employees of this
company shall be represented by the Utility Workers Organizing Committee,
C. I. 0., in all dealings with the management affecting working conditions and
wages, or whether such employees shall continue as they have in the past to
deal directly with the management. This is the outgrowth of the hearing held
in Blytheville on September 1, which has already been reported to you
Your company does not agree with the provisions of this order. At the
hearing we made a strong appeal that you men be allowed to vote, and brought
out the fact that you have been promised and will receive your jobs with the
company when you have been discharged from the armed services. We argued
that you should have some voice in determining whether or not you wish to be
represented by an outside labor organization or whether you wish to deal
with the management direct. Your company asked that men in the armed
services be allowed to vote by mail, and that sufficient time be allowed to
elapse so that every employee in the armed services could return his ballot and
have it counted in the election
This request was ignored and the order as issued stated that if you happened
to be in any of our towns on the date of the election (which election will be
held sometime between now and November 8), you will be allowed to vote ;
but if you are not at home on leave, there is no way you can vote.
We are indeed sorry that we have no recourse against this ruling. However,
should you be at home at the time the election is held, we hope you will avail
yourself of the opportunity to cast your ballot in this election.
We are again protesting to the National Labor Relations Board against its
action, but we have no hopes that it will be rescended (sic) We are protesting
against this unfair discrimination and reserving the right to object to the
result of any election which does not provide a practical manner for you men
to have a vote.
We do want to assure you that whatever the results of this election are, you
will have your job, or a better one, with our company as soon as you are
ARKANSAS-MISSOURI POWER CORPORATION 815
discharged from the armed services, and that the rights and privileges which
you enjoy as an employee of this company, such as our annuity plan, health
and accident plan, group life insurance plan, and other benefits, will be con-
tinued to you no matter how the election turns out.
We realize that you have a great deal more on your mind than the matter
of an election between the C. I. O. Union and this company, but we assure
you that we will at all times protect your interests as we have done in the
past, even though the National Labor Relations Board has virtually refused
you any voice in this matter.
With my very best wishes.
Sincerely yours,
(s) JAS. HILL, JR.
This is a reprint of a letter recently mailed all of the Ark-Mo employees
who are now in the Armed Forces.
In its letter of June 27, 1945, adverted to above, the Respondent, after accept-
ing responsibility for this advertisement and for the letter to employees in the
armed services, contended that these documents "are legitimate expressions of the
company's attitude in this matter which the public, as customers, is entitled to know,
and about which its employees should know."
On November 6; 1944, the Respondent prepared and mailed to each of the
employees6 a letter containing advice bearing on the election to be held on Novem-
ber 8 and 9, 1944, in form and content as follows:
ARKANSAS-MISSOURI POWER CORPORATION,
Blytheville, Arkansas, November 6, 1944.
To All Employees Participating in the Election
To Be Held November 8 and 9, 1944:
DEAR [employee's name]: This week will bring the answer to a question
that has been of great interest to all of us for more than a year. On the 8th
or 9th of November, depending upon your location, you will have the oppor-
tunity to vote in an election to determine whether you will have for your
exclusive bargaining agent the Congress of Industrial Organizations (C. I. O )
with the sole right to represent you in discussions with your Company in
matters vitally concerning your personal welfare ; or whether you want to
continue as you have in the past, to be at liberty to personally discuss and iron
out your own problems as individuals, directly with me or other officials of the
Company. In other words, you will be voting on whether or not you want a
third party to always be between you and your Company and to make all
decisions for you.
You should give serious thought on how you should vote as it bears directly
on your welfare and the welfare of those dependent upon you. The responsi-
bility is placed squarely upon you and your decision should follow the dictates
of your conscience. Why not go off to yourself and reason this thing out to
your own satisfaction and peace of mind, asking yourself such questions as-
To what kind of leadership will I be entrusting my future with my Company-
Is that leadership unselfish and looking only toward my interest and individual
welfare, or is there a self-seeking motive behind it-Would I really and truly
be improving my position now and in the future. No one but you can answer
these questions.
6 It was Reagan's credited testimony that he received a copy on the day before the Board
election
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The election will be by secret ballot and no one will know your decision.
You may record your vote as to how you feel today, regardless of any
preference you may have expressed in the past. Your vote should be in
accordance with your present desires, regardless of whether or not you now
belong to any group, or whether or not you have signed an application card,
authorization, or any other document.
To sum up the situation briefly, it means just this, that the decision rests
entirely with you and you should make your decision without feeling you are
being influenced or intimidated by anyone and feel perfectly free to vote as you
think best. I will make this request of you-that you do vote so that the
results of the election will show your actual wishes I would like to point out
that if you do not vote you will be letting someone else decide your future
representation. You owe it to yourself, your family, and your Company to vote
JHJR MT JAs. HILL, JR.
C The transfer and demotion of
T M. Reagan
Reagan joined the I. B. E. W. in February or March, 1943, during its organiza-
tional campaign. He was active in soliciting memberships and passed out mem-
bership cards On December 12, 1943, when, the Union was actively organizing
the employees, a union meeting was held at Reagan's house. On that date Reagan
signed a membership card and he was thereafter active in behalf of the Union.
While in Blytheville because of his daughter's post-operative care in October 1944,
Reagan transported employee Rufus L. Simpson, president of Local 306, in his
car to Kennett and Caruthersville, Missouri, in order that Simpson might transact
union business with members at those points.
The record is clear that these various union activities of Reagan were known to
the Respondent. Reagan gave credited testimony relative to a conversation with
Supervisor A. H. Van Winkle, chief operator of the Blytheville plant, which
occurred just prior to or just after the first Board election on June 9 and 10, 1943
Reagan's testimony was recorded as follows :
We were talking about labor and the Unions in general , and Mr. Van Winkle
remarked that if the Union won the election and became the bargaining agent
with the Company, that the Company would have a way to separate the
Union men-or in other words, to make it so hard on the Union men until
they would quit, and, in other words, he showed me or was attempting to show
me, even though the Union won the election, we would still have Union men and
non-union men working in'the plant, and would not have a closed shop. There
would be union and non-union , and that the company would have a way to
reduce the volume of the union, so to speak, by making it so hard on the
union men that they would resign. I reminded the man-1 reminded Mr. Van
Winkle that the Union had laws that protected the men in cases like that. He
said the company always had ways to give them the undesirable things and
jobs to do and force them to resign, and it would not follow out right. That
is about the trend of our conversation as I remember it.
Van Winkle admitted that in the very earliest days "when the I. B. E. W. was
started, that probably he [Reagan] and I talked about what we thought about the
union." However, he denied stating to Reagan that he or any other employee would
be penalized for union activities. The undersigned finds Reagan to be a trustworthy
witness. His specific and detailed testimony as to this conversation is credited. Van
Winkle's testimony in this instance and in others of similar character quoted below
ARKANSAS-MISSOURI POWER CORPORATION 817
lacked specificity. He had frequent lapses of memory. His denial as to this con-
versation is rejected.
The undersigned notes that Van Winkle was an eligible voter in this first Board
election and imputes no fault to him or to the Respondent for free discussion of
the union issues at that time 7 This testimony is quoted as showing knowledge by
Respondent's foreman of Reagan's union activity at the time and for its signifi-
cance in connection with Reagan's later transfer to the maintenance crew.
On the morning after the meeting at Reagan's house in December 1943, as
Simpson testified, Plant Superintendent Paul R. Greenwell, who was Van Winkle's
immediate superior, questioned Simpson about the Union. Simpson's pertinent testi-
mony reads:
Well, the next morning when I came to work Mr. Greenwell asked me some-
thing about the meeting and who attended, and how it went, and he asked
me if I thought I was doing the right thing, and I told him several of the
boys thought they were, and he said that he thought we would be sorry of it.
In response to a further question Simpson testified that Greenwell said: "You boys
are making a mistake and will be sorry for it" Greenwell was called as a witness
b, the Respondent. However, he was not questioned as to this testimony by Simp-
son Simpson's uncontroverted testimony is credited by the undersigned.
Reagan's brother, Lee Reagan, was employed by the Respondent from some-
time in January 1943 to November 30, 1944. He testified that about February 15,
1944, Van Winkle came to him and "started a conversation about labor." His
further testimony reads :
He came to me and started a conversation about labor. He said that Labor
thought the world owed them something, and I told him we had started a
campaign with the C. I. O. He said the C. I. O. was nothing but a bunch
of Communists and Reds I said, "Well, I am with the C I. O. and I am going
to stay with them, unless they make it so difficult I will have to leave, and
I am going to fight for my rights." He thought me and Martin, my brother,
were doing the wrong thing.
Q. Did he say that you might be sorry for it?
A. He said that we might be sorry of it.
W C. Reagan, father of T M and Lee Reagan, testified as a witness for the
Board that on two occasions Van Winkle had spoken to him about his sons' ac-
tivities in the Union In the first of these conversations in April 1944, Reagan Sr.,
testified that in the course of a friendly game of pool Van Winkle asked him if he
had any influence with his sons and suggested that if he did he "should influence
them in the way they were going to go in the C. I. O. election." Van Winkle
further stated, as Reagan Sr, testified, that "he [Van Winkle] thought it would be
best that they did not go that way, because it meant their jobs if they went that
way" Reagan Sr. replied that he would see what he could do. In the latter part
of August, 1944, Van Winkle saw Reagan, Sr., and again asked about his sons'
union activities It was Reagan, Sr.'s testimony that Van Winkle said, "it looked
like they were going to do something they ought not to do and lose their jobs"
Reagan, Sr. testified that he was offended by Van Winkle's warning and "did not
talk to him long."
Van Winkle testified that if he had a conversation with Lee Reagan of the char-
acter set forth above, he did not recall it. He positively denied saying the Union
7 Moreover, the complaint makes no allegations of unfair labor practices of this character
prior to December 1943 and the Board's counsel at the hearing specifically disclaimed any
intention to reopen such charges previously made.
818 i)E( ISIONS OF N ATIONAT, LABOR RELATIONS BOARD
I
was a "bunch of Communists and Reds" or that the Company would make it
unpleasant for or penalize members of a labor organization As to the testimony
of Reagan, Sr., Van Winkle admitted frequent meetings with him at the pool hall.
He testified, as had Reagan, Sr., that their association was on a friendly basis.
Van Winkle's testimony in point here is recorded as follows :
I met Reagan on lots of occasions in the places designated, in Bill's Pool Room,
but I don't recall positively what I said, or if I said all that about the C. I. 0
I don't believe the C. I. O. Union was ever mentioned.
Q. Did you in any conversation with him suggest to him that his sons would
be penalized , or their positions made less desirable with the Arkansas-Missouri
Power Corporation if they associated themselves with the labor union?
A. No, sir, I don't think I did.
Q. In that conversation, would you have had any authority to make any
such statement as that?
A. No, sir, only my own.
In resolving these conflicts of testimony the undersigned is influenced by the
similarity of the warnings ascribed to Van Winkle by Lee Reagan and Reagan, Sr.
to that of June 1943, testified to by T. M. Reagan The three Reagans were
forthright and careful witnesses whose mutually corroborative statements were not
shaken in cross-examination. The undersigned finds them to be trustworthy and
credits the statements quoted as substantially correct The partial denials of Van
Winkle are rejected.
On November 9, 1944, Reagan's foreman "Shorty" Abernethy, in an effort to
dissuade Reagan from resigning , disclosed to him that he had been fully informed
within three hours of what occurred in October, 1944, when Reagan transported
Simpson to Kennett and Caruthersville, Missouri, on union business. Abernethy did
not disclose the source of his information but convinced Reagan of the truth of
his assertion.8
Reagan's first work for the Respondent began on February 8, 1943, as a helper
in the Blytheville plant at $95.00 per month This amount was paid for a base week
of 40 hours. On April 4, 1943, Reagan began working 42 hours which entitled him
to receive two hours' overtime weekly compensated at time and a half On July 16,
1943, he was promoted to plant operator and his base salary was increased to
$110.00 per month. The period of 5/ months between Reagan's hiring and his
assignment to duty as a plant operator was unusually short. Van Winkle testified
that this early promotion was due to wartime scarcity of labor and to his own
preference for Reagan. On March 1, 1944, Reagan's base pay was raised to $120.00
monthly. On March 19 his hours were increased to 46 hours weekly which gave
him 4 additional hours paid at time and a half. Reagan had been hired by, and
received instructions in plant operation from, Van Winkle who testified that he was
wholly responsible "for Reagan's instruction in plant operations " However, Reagan
also came under the instruction of the other plant operators. As he testified:
I worked with the other operators in training and then was given a respon-
sible shift. Different ones had taken me on their time and showed me and
trained me up. I considered the training period up to three months.
Reagan's first assignment as plant operator was on the midnight to 8 a. in shift.
This is regarded as the least difficult and responsible of the three shifts since in
these hours power demands are lightest and dispatching problems are fewest. On
a Abernethy had left his employment with the respondent and was not called as a witness.
Reagan's testimony is uncontroverted and is credited by the undersigned.
ARKANSAS-MISSOURI POWER CORPORATION 819
August 12, 1944, Reagan was assigned by Van Winkle to the relief or swing
shift. It was his duty to relieve each of the three regular shift men on a weekly
day off Hence, in the course of each week he "worked round the clock" and
met all the problems occurring on the three shifts. Van Winkle agreed that this
assignment, which involved changing hours frequently, was a tougher job than
that of operators on a fixed shift. Van Winkle also spoke favorably of Reagan's
responsibility in meeting his new hours 9 It should be noted that Van Winkle, as
chief operator, was normally present in the plant for most of the 8 a. m. to
4 p. in. shift and that Reagan's work on the swing shift assignment came under
his direct observation during two shifts each week.
On September 24, 1944, Reagan was transferred to the maintenance crew. This
transfer involved no change in his salary. The new assignment required him to
be absent from Blytheville much of the time since the maintenance crew was
responsible for the building and rcpair of all installations, except power lines,
in the entire area served by the Respondent. As described by George D. Pollock,
chief engineer for the Respondent, the system extends for 175 miles west and
northwest and for approximately 50 miles north and south. During the period
from his transfer to his resignation on November 9, 1944, the maintenance crew
was chiefly engaged in repairing a dam at Mammoth Springs, Arkansas. This is
about 150 miles from Blytheville from which city the maintenance crew operated.
Pollock estimated that the crew members would on the average spend 65 percent
of each year in Blytheville. In order to have a longer period at home the crew was
accustomed to work a full two weeks period of 10 days aggregating 92 hours
without days off. Thereafter they had the balance of the two calendar weeks free
The Respondent paid all expenses for meals, lodging and transportation while the
crew was absent from Blytheville
During his service in the maintenance crew Reagan was absent with the Respon-
dent's permission from October 9 to 18, 1944, on an occasion when his oldest daugh-
ter underwent a tonsillectomy operation Later his family obligations necessitated
another three days' absence. The Respondent readily gave assent to Reagan's request
for leave on both occasions and he incurred no reduction in pay. This procedure
was in accordance with the Respondent's regular practice where salaried employees
were concerned. On Reagan's own initiative he worked 3 days in the Blytheville
store room as partial coverage of this absence
The change involved from duty as a plant operator to pick and shovel labor
was a drastic one. It was vividly expressed by Reagan in answering the question
whether he considered the transfer a demotion. Reagan's testimony in part reads :
Well, if you want to know the way I looked at it, taking me out of a good,
clean job, where I was doing the best I could, and putting me in mud up to
my knees, with a pick and shovel, bursting rock and shoveling it out, and
wallowing around in the red clay, yes, sir, I would call it a demotion.
Stiles, who replaced Reagan as plant operator had worked for 2 weeks on the
Mammoth Springs job immediately before the transfer was effected. He testified
9 Van Winkle was asked • "Did you consider Reagan, since you put him on that shift, as
reliable, and answered, "Yes sir." Further in response to the question, "He was there, when
his turn came round?" Van Winkle replied, "Yes sir, and if I asked him to be there a week,
he could have been there."
Reagan gave uncontroverted testimony, credited by the undersigned, reading:
Mr. Greenwell [General Plant Superintendent] told it at the time that the change was
made that he wanted to give Reagan the swing shift because it would mean a promotion
and more experience, or a chance to gain valuable experience, by operating all the way
around the clock.
696966-46-53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as to his new assignment, "It was out of the weather and more agreeable and I
preferred it." He agreed further that "for the same money it was a better job."
Testimony of Van Winkle and of Reagan as to what occurred when Van Winkle
told Reagan of his transfer is in close agreement . Reagan testified that this
notification on September 23, 1944, came as a complete surprise to him. Van Winkle
assumed full responsibility for the decision. Reagan's testimony contains the fol-
lowing circumstantial account of Van Winkle's notification of the transfer:
I was up on the ice tank, checking the ice tank for the temperature and
storage, and it was right at the noon hour when the men were to go. He [Van
Winkle] always went home for lunch. He came up on the ice tank and came
to me and said, "Reagan, we want you to go home this evening and take off."
I was supposed to have remained until four o'clock. He said, "I want you to
take off and go home and come back Monday morning and report to Mr.
Greenwell. I guess you know we were making some changes?" I said, "No,
that is news to me. What do you mean that you are making some changes?"
He said, "I guess you knew that Wilde Stiles was back working for the Com-
pany?" I knew that he had gone to Mammoth Springs and spent the past
two years He went on to say that due to the fact that the load was going up,
which it always does-I mean the demand on the power system that occurs
about that time of the year, caused by the ginning season and extra things, that
due to the fact the load was going up, he had decided to make some changes.
I asked him if it was going to be permanent or temporary. I wanted to
know if that was the only reason. I knew the load would not stay up long,
and if that was the only reason, then I felt that I would get my place back,
and when I asked him he said that he would not be in a position to say. I said,
"You remember when you hired me, I was hired to be an operator, and I have
worked two years, and I feel that I have done my best to learn and have
been given responsibilities. I don't know whether I am willing to accept the
transfer or not. I would like to think it over. It is so sudden." He did not
ask me if I would like to be transferred, but just presented it to me in that
way, that I was being transferred. I told him I would like to talk to Mr.
Greenwell. He said all right, that he was in his office.
Van Winkle's version of this interview, as given in his testimony, reads as
follows :
The procedure that happened when I transferred him was that I went upon
the ice tank where he was, he was on the ice tank and I just walked up to
him and told him, "Martin, due to conditions and the operation of the plant as
the peak load is on, we will have to have somebody that can operate the plant
and you have failed, and I have myself decided, if it suits you, to transfer
you out to some other job as I can not use you any longer as an operator and
be responsible for you." Van Winkle further testified that he told Reagan "the
transfer was definite."
It will be noted that these accounts differ on but two material points: Van Winkle
stated that he definitely told Reagan he had failed as an operator and that his
transfer was permanent. After consideration of these conflicts in the setting of the
entire record the undersigned credits the version of Reagan.
Immediately after his interview with Van Winkle, Reagan made inquiry of
Greenwell who told Reagan that he was to report to "Shorty" Abernethy, fore-
man of the maintenance crew Greenwell pressed Reagan for an immediate decision.
However, Reagan declined to commit himself and Greenwell assented to his pro-
ARKANSAS -MISSOURI POWER CORPORATION 821
posal to think the matter over and report his decision later in the evening. Reagan
told Greenwell that he felt his union activities had caused the transfer. Greenwell
advised that he did not want the "Union brought into it "10 After consultation
with William R. Henderson, Sub-Regional Director for the Union, Reagan decided
to report for his shift at midnight. When he arrived he found Wilde L Stiles at
the plant prepared to take over the shift. Reagan thereupon called Greenwell and
stated the situation, demanding that Greenwell direct either Stiles or himself to
leave. Greenwell told Reagan "that it was understood that he was to come back the
following Monday morning and report to the maintenance crew, and as far as I
was concerned Stiles was there to replace him "11 Reagan then acceded and
promised to report Monday on the maintenance crew
Stiles had been employed by the Respondent at various times since May 27,
1940. However, his service as a plant operator extended only from May 1, 1942,
to June 30, 1943. On the last named date he was replaced by Reagan as operator
on the midnight shift. Stiles had been prominent in the I. B. E. W. organizational
effort. When that organization lost the Board election Stiles resigned his position
He testified regarding his action as follows:
Well, naturally, you would be embarrassed to stay with a place when
you knew you were beaten and it [IBEW] was, and I don't think, or didn't
think it would be advisable for me or for anyone to stay at a place where he
would be criticized or something like that 12
Reference to the employment records of Stiles and Reagan shows that each
served as plant operator for approximately a year and 2 months. Stiles had had
considerably more experience as a diesel engine operator than had Reagan
Reagan's service on the swing shift gave him more comprehensive experience in the
Blytheville plant than Stiles; Reagan's service was more recent It is significant
also that Stiles took no part in union activities after his I B. E. W. membership
and had not joined the Union at the time of the hearing in the instant proceeding
The undersigned finds no justification for displacing Reagan by Stiles on the basis
of their relative plant ability and experience.
At midnight September 23-24, when Stiles replaced Reagan as plant operator,
Simpson, the afternoon shift operator, Eulas Nichols, a line man, Tommie Boswell,
Jr., the day shift operator and Reagan's brother, Lee Reagan, were also present.
Except for Stiles all these employees were union members They took Stiles to
task for replacing Reagan as plant operator. Reagan's unassailed and credited
testimony, as to the incident reads:
I heard the boys ask him did he feel right in coming in and taking my job,
and after belonging to the Union before. They felt like he was not doing the
boys right, and the boys were going to feel bad about it. They felt that he
should have waited until after the coming election before coming back to work
for the Company.
"' Greenwell testified that he did not remember that any mention was made of the Union.
He stated further "If there was anything said about the Union, it was perfectly understood
that it had nothing to do with his transfer . I am sure of that, if there was anything said,
which I don't have any knowledge of."
11 The quotation is from Greenwell 's testimony . His testimony and that of Reagan are in
substantial agreement at this point
12 Stiles gave a statement on August 22, 1945, to a Board agent stating that he quit on
June 30, 1943, because he figured that he would be discharged by the respondent.
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under cross-examination Simpson gave testimony , closely similar in purport,
reading :
They asked him [Stiles] if he thought he was treating the boys fair by
dropping out of the Union because it lost the election and coming back in
against the Union before the election, and they asked him if he did not think
he ought to stay out until after the election as they knew he would vote
against it.
When questioned as to this incident Stiles professed inability to remember what
then transpired. However, he admitted that "they all figured I had done the wrong
thing" in accepting Reagan' s place.13
Reagan continued with the maintenance crew until November 9, 1944. This was
the second day of the Board election Reagan was at Mammoth Springs and voted
there. He explained his decision to resign his position as follows:
I felt bad all the way through about the transfer and I felt if the Union
did win that I would have more of a chance to get back on my old job, and
be reinstated, and not be discriminated against but with losing the election,
what caused me to make up my mind was that I felt there was no hopes
because of what Mr. Greenwell had told me that he could not say whether it
was temporary or permanent.
When Reagan announced to Foreman Abernethy that he had decided to quit,
Abernethy protested saying, "Reagan, if you go home you are not the man I
thought you were. You are letting the Union knock you out of a good job, and
it is because of the Union that you are going home." On this occasion, as set forth
above, Abernethy told Reagan of his knowledge of events occurring on the Kennett
and Caruthersville trip in October. Reagan quoted Abernethy as saying, "You
believe a lot of the boys are for you. I can prove that they are absolutely against
you."14 Reagan persisted in his plan and returned to Blytheville that evening.
On the following day Reagan went to Greenwell's house and asked him if there
was any position in Blytheville on which he could be employed by the Respondent
Greenwell replied, as Reagan testified and the undersigned finds, "I am sorry
Reagan but that is all we have to offer you."13
On November 13, Abernethy, as Reagan testified and the undersigned finds, came
to Reagan's house ostensibly to get his signature on a time sheet. In the course of
the conversation he asked Reagan to keep their conversation on November 9 con-
fidential. He expressed a desire to help Reagan in any way that he could and
enjoined Reagan to call freely on him for assistance. After Abernethy left Reagan
talked the matter over with his wife and decided to offer to return to the main-
tenance crew. He telephoned to Abernethy and announced this decision. Abernethy
replied, according to Reagan's credited testimony, that "he would see what he
could do and call [Reagan] back." At the time of the hearing Reagan had had
no further communication from the Respondent.
Respondent's justification for Reagan' s transfer on September 24, 1944, rests
or. a single ground. Van Winkle accepted full responsibility for the decision. His
testimony reads: "The reason why he was transferred out of my department .. .
13 The undersigned is well aware that these utterances by employees do not constitute proof
of the discriminatory character of Reagan 's transfer . They are included in this report for their
significance in disclosing the impression made on these union members , one of whom was
president of the local union, by Stiles replacement of Reagan.
14 As noted above, Abernethy was not called as a witness. Reagan's testimony as to this
conversation was corroborated, in part, by testimony given by C . G. Scherer, a member of the
maintenance crew , and is credited by the undersigned.
16 Greenwell was not questioned as to this incident.
ARKANSAS-MISSOURI POWER CORPORATION 823
was because Mr. Reagan failed twice in the priming of a circulating pump . . .
which I consider one of the most simple operations to be done ."18 Van Winkle
further testified that his final decision was made "somewhere around the middle
of August." Van Winkle gave further testimony relative to 12 day-shifts on which
as swing shift operator Reagan's work came under Van Winkle's observation:
Q. In those twelve shifts , what occasion for criticism or admonition do
you remember having in Mr. Reagan 's operation?
A. Until the failure of the water pumps, I did not see anything that I had a
right to criticize him in.
Q. The two water pump instances are now all that you have against his
capacity and integrity as an operator?
A. These two things proved to me that he had failed in being an operator.
Q. Was there anything else?
A No, sir. Nothing else 17
These failures ascribed to Reagan by Van Winkle arose in connection with the
operation of two large diesel engines which are maintained in "stand by" condition
in the Blytheville plant as a safety factor in carrying peak demands for current
or in case of sub-station breakdown. They are not operated regularly but are
customarily warmed up prior to the hour of heaviest demand in the day and in the
afternoon shifts These engines are cooled by forcing chilled water through a
water jacket with a centrifugal pump A supply of water is maintained on the
intake side of this pump in a cement tank some 10 feet deep which rises 3 feet above
the level at which the pump is installed. During the periods that the diesel engines
and the pumps are idle the water tends to escape through the intake pipe and
be replaced by air within the centrifugal pump. This condition is described as "air
bound," and the pump is said to have "lost its prime." The blades of the pump
do not fit closely enough in the pump casing to allow them to drive the air out
against the weight of the water in the engine water jacket and in the exit pipe. Cor-
rect procedure to restore the prime is to fill the water jacket, pump and pipes by
running in water from the city water system and open a pet cock on the pump
which allows the air to escape. When the cooling system is thus filled with
water the pump on starting will function properly and is said to have recovered its
prime In case of emergency or failure of the plant's water supply, there is pro-
vision that the diesel engine may be cooled by running the city water through the
cooling system. This is both less economical and less efficient than normal opera-
tion using the plant's cooled water. The cement tank from which the centrifugal
pump derived its water supply had cracked and during the periods when the pump
was not in use the water frequently seeped away until its level was below that
of the pump.
The record shows that the centrifugal pumps gave much trouble to the operators.
Van Winkle testified that they failed on hundreds of occasions, and that it was a
very common occurrence for the pump to fail to prime. Reagan's testimony clearly
1i At another point in the transcript of testimony, Van Winkle stated
I figuied I had lost all the time I had put in training him to become an operator if he
had not learned in that length of time to be able to prime a water pump that I had not
advanced him as I should.
i'! Board's counsel in this proceeding, Lewis Moore, testified that Van Winkle had told him
in the course of a conversation by telephone that Reagan was discharged for burning out a
generator Van Winkle positively denied having made this statement. In view of the possi-
bilities of misunderstandings occurring in interviews carried on over the telephone the under.
signed finds this to have been such an error and gives no weight to this testimony by Moore.
824 DECISIONS OF NATIONAL LABGR RELATIONS BOARD
shows that he had a sincere but erroneous belief that the centrifugal pump could
not "suck" water from a lower level. In any failure to prime, his procedure was
to run water into the cement intake tank until the level rose above that of the
pump. Thereafter, on opening the pet cock and throwing the electrical switch the
pump "caught prime" and functioned. He was using this method on the occasion
when he came under Van Winkle's observation and adverse criticism Such error
arises quite naturally in the minds of employees not educated in the science of
physics and hence with no comprehension of the principle of atmospheric pressure
It would seem to be an error in understanding easily corrected by demonstrating
that the water would rise if, after the water jacket and intake and exit pipes are
filled with water, the pump was placed in operation. Moreover, Reagan's error
was shared by Simpson who had been a plant operator for the Respondent for
10 years, 7 of them under Van Winkle's supervision Both Van Winkle and Chief
Engineer George D. Pollock regarded him as a competent plant operator. Van
Winkle said further: "Rufus Simpson was a finished operator when he came to
me. I will say that he and I discussed and learned things from one another."
Simpson testified, "I have never been able to prime [a centrifugal pump] when
the water was below the pump, or to force it out when it was below. I have had
to have the water high enough."
Reagan gave credited testimony that Boswell, plant operator on the day shift,
whose service as operator antedated Van Winkle's employment in the Blytheville
plant, on observing his difficulties with the pumps on an occasion in June or July
1944 advised him as follows:
You are just warming up. You are not going to need them as far as the
load goes, and why not wait until your pit fills up. You can operate on city
water if you want to, but if I were you I would just wait and let the level rise
The undersigned notes that Boswell and Simpson operated on the shifts when the
plant normally met the heaviest demands of the day. They were employees from
whom Reagan received advice during his training period.18
Reagan's transfer to more laborious and disagreeable work involving the hard-
ship of lengthy absences from his home and family was in exact accord with the
prediction made by Van Winkle, the responsible supervisor, in June 1943 It was
preceded by warnings, similar in kind given to Lee Reagan and to Reagan, Sr.
The undersigned notes that Van Winkle's second interview with Reagan, Sr.
coincides in date closely with Van Winkle's own statement of the time when he
determined to transfer Reagan. Both Van Winkle and, Greenwell, the supervisors
directly concerned in Reagan's transfer, are shown by the record to have engaged
in anti-union conduct.
T. M. Reagan had been an acceptable employee, meriting increased salary, pro-
moted and entrusted with more responsible work until his prominence in union
activity, of which the Respondent had full knowledge, caused a reversal of the
Respondent's attitude. The transfer on September 24, 1944, preceded the election
by 6 or 7 weeks. It was an effective object lesson to discourage union activity
and membership and to enforce the anti-union messages conveyed by Respondent's
various communications distributed to the employees and displayed on its bulletin
11 Stiles testified as to difficulties connected with the pump:
It loses prune often, pretty often. When the water gets low in the pit, the valve on the
engine don't hold good enough and the water leaks back through and gets out of the
pump and gets air bound, and when it does that, the way I always prime it is to fill the
water jacket with city water . . . and I open the discharge line from the pump, and let
the force of the water go back through the pump, and open the valve on top of the pump
and it pushes the air all the way back and starts it back up, and it has never failed yet
ARKANSAS -MISSOURI POWER CORPORATION 825
boards during the period that Reagan worked as a member of the maintenance
crew. The fault for which Reagan was allegedly displaced from his position as
plant operator was one for which Van Winkle cannot escape responsibility He
failed to instruct Reagan in simple principles of centrifugal pump operation
Moreover, two other plant operators of long standing, Boswell and Simpson, were
similarly uninformed Since it is clear that Reagan followed the same procedure
as Boswell and Simpson in handling the problems connected with pump operation
the undersigned concludes and finds that his errors furnished no more than a
pretext seized upon by Van Winkle and the Respondent to justify Reagan's
transfer. It is found that his transfer and the subsequent refusal to rehire him,
as a member of the maintenance crew when his immediate foreman was well dis-
posed to such action, were discriminatory acts, based on Reagan's union member-
ship and activity It is further found that Reagan's quitting his employment on
November 9, 1944, was a direct consequence of his discriminatory transfer to a
less desirable job on the maintenance crew. By these acts the Respondent has
discriminated in regal d to his hire and tenure of employment and the terms and
conditions of his employment, thereby discouraging membership in a labor organiza-
tion and interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
D. Further acts of interference, restraint, and coercion19
Employee Eulas Nichols gave uncontroverted and credited testimony that when
the Union first began its organizational campaign he attended a union meeting
at the home of employee A V. Tarpley. Next morning on going to work Foreman
Abernethy accosted him and displayed knowledge of the attendance at the meeting
and of events occurring there. As Nichols' testimony reads: "He was jesting me
about it, but he did have the deadwood on me. He knew about the meeting."
Employee Alton Elliott on being hired during the summer of 1945 by Super-
visor James Oats was asked by Oats whether he was a union member . Elliott
answered, "No" and was thereupon hired.
Concluding findings
After consideration of the record the undersigned finds that the acts and utter-
ances of the Respondent set forth herein are constituent elements in a studied
course of conduct which was motivated by its antagonism to the Union and was
designed to combat the organizational efforts of the Union and to bring about
its defeat in the pending election.
As found above the demotion and transfer of Reagan was based on his union
membership and activities. This action of the Respondent a few weeks after the
hearing held by the Board in the representation proceeding and shortly before
its Decision and Direction of Election served as a warning to the employees that
the Respondent was prepared to use its economic power to defeat the Union. This
19 In this connection the respondent calls attention to a letter sent to all Managers and
Plant Operatoiss under date of August 1, 1944, after a meeting in the office of respondent's
Presir'ent James Hill, Jr This letter was also posted on bulletin boards in respondent's plants.
The letter repeated instruction, previously given that "none of our supervisory employees are
to express an opinion for or against any labor organization" nor "to try to coerce or influence
any of our employees for or against any union ." While the undersigned credits the testimony
given in behalf of the respondent relative to the circulation and posting of this letter, he
finds that the instructions contained in it were not effectively enforced as shown by the findings
in Section III D above. Moreover, while this letter was posted on the respondent' s bulletin
boards, it was circulating the various letters and documents described in Section III B above
and its employees had before them the object lesson of Reagan's transfer.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
action was doubly potent since Stiles, known to be opposed to the Union as is
shown by the protest addressed to him by the group of union employees on the
night of the transfer, replaced Reagan as swing shift plant operator. This
concrete example of economic reprisal rendered meaningless the Respondent's
posted instruction to its supervisors to abstain from interference in union
activities 20
Further acts in the same pattern of conduct are the statements of Van Winkle
to Lee Reagan and Reagan, Sr.; of Foreman Abernethy to Reagan and to employee
Nichols displaying knowledge of events at union meetings; the questioning of
employee Elliott by Supervisor Oats relative to union membership ; the questioning
of employee Simpson by Greenwell relative to events at the union meeting at
Reagan's home and his threatening comments as to probable consequences By the
acts and utterances summarized in this paragraph the Respondent has interfered
with, restrained, and coerced its employees in the exercise of rights guaranteed in
Section 7 of the Act.
Finally the action of the Respondent in distributing and otherwise publicizing
various documents, as set forth above is found to he an integral part of its illegal
course of conduct Circulation to its employees and posting on its bulletin boards
by the Respondent of matters relative to dispute between a C. I. O. union and
non-union employees of a local concern was calculated to discourage membership
in the Union. It was palpable "interference" by the Respondent with the exercise
of rights guaranteed the employees in Section 7 of the Act. Similarly, the letter
of the Respondent to its employees in the Armed Services : its advertisement
which incorporated this letter and stated reasons for the Respondent's objection
to the Board's order that an election be held, and the Respondent's letter to its
employees which was timed to reach them immediately before the election, were
further acts of interference, restraint, and coercion.21 The Respondent plainly
entered upon a partisan policy. In the final paragraph of the letter to employees
in the Armed Services the Respondent stated "We realize that you have a great
deal more on your mind than an election between the CIO Union and this Com-
pany " [Italics added.] In effect the Respondent treated the representation proceed-
ing as a contest between the Respondent and the Union 22 In the opening paragraph
of its pre-election letter to its employees the Respondent plainly suggests that
continuance of individual bargaining is preferable to collective bargaining By so
doing, the Respondent places itself in opposition to the policy of the United States
as declared in the Act "to encourage the practice and procedure of collective
bargaining."23
On the basis of the record the undersigned is convinced and finds that the
statements and acts of the Respondent as outlined above, including the distribution
20 See Matter of Litchfield Manufacturing Company, 63 N. L. R. B. 545, and Matter of Mont-
gomery Ward & Co., Inc., 64 N. L. R. B. 432, where the Board said:
In the face of these concrete examples of economic reprisals, the employees could
reasonably regard as meaningless the statements in [Respondent's Labor Relations
Manager's] talk that the respondent would respect the right of any employee to join or
not join a union.
=i See Matter of Litchfield Manufacturing Company, 63 N. L. R. B. 545, where the Board said,
"In agreement with the Trial Examiner we find that the speech, viewed on a part of the
respondent's entire course of conduct . . . constitutes an unfair labor practice."
jz See Matter of Odenbach Shipbuilding Corporation, 64 N. L. R B 1026. The Board said:
"We find, however, that his [respondent' s president ] statements characterizing the employees'
efforts at self-organization as a personal issue between himself and the Union . . constitute
interference, restraint, and coercion as part of the totality of the respondent's unlawful course of
conduct . . . "
23 See Matter of Wennonah Cotton Mills Company, Inc., 63 N. L R. B. 143.
ARKANSAS-MISSOURI POWER CORPORATION 827
and publicizing of these documents, were integral parts of a course of conduct
which interfered with, restrained, and coerced its employees in the exercise of
rights guaranteed in Section 7 of the Act
On the basis of the entire record and respondent's whole course of action the
undersigned finds that the election held by the Board on November 8 and 9, 1944,
did not fairly reflect the untrammeled wishes of the Respondent's employees and
did not constitute a fair test of the employees' desires as to representation
Accordingly, it will be recommended that the Board set this election aside.
IV THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
It is found that the activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent 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 burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
1-laving found that the respondent has engaged in unfair labor practices the
undersigned will recommend that it cease and desist therefrom and take certain
affirmative action found necessary in order to effectuate the policies of the Act.
Since it has been found that the acts and utterances of the respondent have so
affected the Board's election held on November 8 and 9, 1944, that it did not
fairly reflect the untrammeled wishes of the respondent's employees, it will be
recommended that the election be set aside.
It has been found that the respondent transferred T. M. Reagan on September
24, 1944, from his position as plant operator to a less desirable job as a member
of the construction or maintenance crew, and that this transfer caused Reagan
to resign from his employment on November 9, 1944. On November 10, Reagan was
refused other employment in Blytheville and on November 13, when Reagan made
an unconditional offer to return to his job on the maintenance crew the respondent
failed or refused to rehire him. It has been found that the transfer of Reagan
and the refusal to rehire him resulted from his joining and assisting a labor
organization and engaging in concerted activities for the purpose of collective
bargaining and other mutual aid and protection. It will be recommended that the
respondent offer Reagan immediate and full reinstatement to his former position
as a plant operator, or to a substantially equivalent position, without prejudice to
his seniority or other rights and privileges he may have. It will be further
recommended that the respondent make him whole for any loss of pay he may
have suffered by reason of the respondent's discriminatory action by payment to
him of a sum of money equal to the amount he normally would have earned as
wages from the date of the respondent's discriminatory refusal to rehire him
on November 13, 1944, to the date of the respondent's offer of reinstatement less
his net earnings24 during said period.
24 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 elsewhere 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, 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, 311 U. S 7.
11
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the basis of the foregoing findings of fact and upon the entire record in the
case the undersigned makes the following :
CONCLUSIONS OF LAW
1. Utility Workers Organizing Committee, affiliated with Congress of Industrial
Organizations, 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 employment and tenure
and conditions of employment of T. M. Reagan, thereby discouraging membership
in a labor organization, the respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section & (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.
RECOMMENDATIONS
Upon the basis of the above findings'of fact and conclusions of law the under-
signed recommends that the respondent Arkansas-Missouri Power Corporation,
and its officers, agents, successors and assigns shall-
1. Cease and desist from:
(a) Discouraging membership in Utility Workers Organizing Committee,
affiliated with the Congress of Industrial Organizations, or any other labor
organization, by discriminating in regard to the hire and tenure of employment
or any terms and conditions of employment of its employees ;
(b) In any other manner interfering with, restraining, or coercing its employee,;
in the exercise of the right to self-organization, to form, join or assist Utility
Workers Organizing Committee, affiliated with the Congress of Industrial Organi-
zations, or any other labor organization, to bargain collectively through represen-
tatives 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 undersigned finds will
effectuate the policies of the Act :
(a) Offer to T. M. Reagan immediate and full reinstatement to his former
position as plant operator or a substantially equivalent position without prejudice
to his seniority or other rights and privileges;
(b) Make Reagan whole for any loss of pay he may have suffered by reason
of respondent's discrimination against him, by payment to him of a sum of
money equal to the amount which he normally would have earned as wages from
the date of the respondent's discriminatory refusal to rehire him to the date of
the respondent's offer of reinstatement, less his net earnings25 during said period ;
()c) Post at its plants in Arkansas and Missouri, copies of the notice attached
hereto marked "Appendix A." Copies of said notice, to be furnished by the
Regional Director for the Fifteenth Region, after being signed by the respondent's
representative, shall be posted by the respondent immediately upon the receipt
thereof, and maintained by it for sixty (60) consecutive days thereafter, in
25 See footnote 24, supra
ARKANSAS -MISSOURI POWER CORPORATION 829
conspicuous places, including all places where notices to employees are customarily
posted . Reasonable steps shall be taken by the respondent to insure that said
notices are not altered , defaced or covered by any other material;
(d) Notify the Regional Director for the Fifteenth Region in writing, within
ten (10) days from the date of the receipt of this Intermediate Report, what
steps the respondent has taken to comply therewith.
It is recommended that the election held by the Board on November 8 and 9,
1944, be set aside.
It is further recommended that unless on or before ten (10 ) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations , the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board , Series 3, as amended , effective November 27,
1945, any party or counsel for the Board may, within fifteen ( 15) days from the
date of the entry of the order transferring the case to the Board , pursuant to
Section 32 of Article II of said Rules and Regulations , file with the Board,
Rochambeau Building, Washington 25, D. C., an original and four copies of a
statement in writing, setting forth such exceptions to the Intermediate Report or
to any other part of the record or proceeding ( including rulings upon all motions
or objections ) as he relies upon , together with the original and four copies of a
brief in support thereof. Immediately upon the filing of such statement of
exceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file a copy with
the Regional Director. As further provided in said Section 33, should any party
desire permission to argue orally before the Board, request therefor must be made
in writing to the Board within ten (10) days from the date of the order trans-
ferring the case to the Board.
CHARLES E. PERSONS,
Trial Examiner
Dated December 27, 1945