Commonwealth Edison Co.

National Labor Relations Board - Board Decisions

Nov 10, 1942

45 N.L.R.B. 482 (N.L.R.B. 1942)

In the Matter Of COMMONWEALTH EDISON COMPANY
and WILLIAM HALLWORTH
Case No. C-2245-Decided November 10, 1942
Jurisdiction : electric utility industry.
Unfair Labor Practices
Company-Dominated Unions: First, Organization: history of employer domi-
nation from its establishment by_ the respondent in 1921 to the date of hear-
ing and the constitution of the Plan, considered in evaluating alleged un-
fair labor practices:- its origin at the instance of the respondent, the
participation of the respondent in its activities through management represent-
atives, the requirement of approval by the respondent of changes in the
Plan, the complete dependence upon the respondent's financial support, and
the absence of any provision for regular meetings of the employees gener-
ally, or separate meetings of the employee representative apart from man-
agement, or for the ratification by the employees of action taken by any
agency of the Plan-Second Organization: launched by employee represent
atives of the Plan as a device to perpetuate the dominated Plan by means
of a substitute organization to be made available 'as a successor to the Plan
in the event the Plan were outlawed by the Board ; the respondent was ad-
vised of the plans and purposes of the leaders of this organization and in-
dicated its support and 'cooperation through its attorney, urging only that
they proceed slowly and take no definite action unless and until necessary;
circulation of petitions and employee solicitation during working hour's,
by employee representatives who refrained from any explanation as to the
relationship between this organization and the Plan, failure of the respond-
ent to make the necessary disavowal of its sponsorship: similar structural
setup under its constitution to that under the Plan thereby perpetuating the
Plan and the respondent's domination; difficulty in distinguishing the two,
organizations as late as 1941 indicated by representatives' being active as
officers in both organizations, by the participation of management repre-
sentatives and supervisory employees in the administration ; actions taken
by this organization in condemning Plan after charges filed against the Plan
'and other steps taken, held not to have served in any degree to emancipate
it and employees generally from the domination of the employer-controlled
Plan
Remedial Orders: dominated unions disestablished.
Mr. David Karasick, for the Board.
Mr. Ralph R. Bradley and Mr. Glenn E. Baird, of Chicago, Ill., and
Mr. Roger Robb, of Washington, D. C., for the respondent.
Mr. Reuben Freedman and Mr. Russell H. Goligh,tly, of Chicago,
Ill., for the Utility Employes Union. ,
Mr. Harry H. Kuskin, of counsel to the Board.
45 N. L. R B, No. 72.
482
.= ___ .
CO'MMONWEALT'H EDISON' COMPANY
DECISION
AND
ORDER
"STATEMENT OF THE CASE
483•
'Upon ^ a charge duly filed by William Hallworth, an employee of
the respondent, the National Labor Relations Board, herein called the
Board, by the Regional Director for the Thirteenth Region (Chicago,'
Illinois), issued its complaint dated May 5. 1942, against Common-
wealth Edison Company, Chicago, Illinois, herein called the respond-
ent, alleging that the respondent had engaged in. and was engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor
Relations ,1ct, 49 Stat. 449, herein called the Act. Copies of the com-
plaint and of notice of hearing thereon were duly served upon the re,
spondent, the Employes Representation Plan, the Utility Employes
Union, and William Hal]worth. ,
'With respect to the unfair labor practices, the complaint alleged in
.,iibstaiice : (1) that in January 1921, the respondent initiated, formed,
and sponsored a labor organization known as Employes Representa-
tion Plan ? of the Commonwealth Edison Company, hereinafter called
the Plan, and from July 5,1935, to date, dominated and interfered with
the administration of the Plan and contributed financial or other sup-
port to it, and (2) that in April .1937, 'the respondent interfered with'
the' formation of a labor' organization known as Utility Employes
Union, hereinafter called the U. E. U., and thereafter dominated and
interfered with its administration and contributed support to it.
The respondent filed an answer to the complaint on May 23, 1942,
denying the allegations of unfair labor practices. The U. E. U. filed
an answer on• May 12, 1942,2 alleging that the respondent had domi-
nated and interfered with the administration of the Plan, but denying
that the respuudent•liad interfered with the formation of the U. E. U.
or at any time dominated or interfered with the administration of the
U. E. U. or contributed support to it.
Pursuant to notice, a hearing was held at Chicago, Illinois, on June
15, 16, and 17, 1942, before Will Maslow,, the Trial Examiner duly
designated by the Chief Trial Examiner. The Board, the respondent,
and the U. E. U. were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was afforded
^ Aho referred to in the record as Employee Representation Plan. Representative Plan.
and Repi eSPntation Plan , .
Although the li E II did not formally petition for leave to intervene, it participated
in the heal mg and was t t e.tted as it party without obieetion
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all parties. At the close of the hearing counsel for the U. E. U. moved
to dismiss the complaint insofar as it related to the U. E. U. The
motion was denied. All parties joined in a motion to conform the
pleadings to the proof in such matters as names and dates. The motion
was granted. Rulings on other motions and on the ' admissibility of
evidence were made by the Trial Examiner during the course of the
hearing. The Board has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed. At the conclusion of the hearing, the parties were.
afforded , but waived, an opportunity to argue orally before the Trial
Examiner. A brief for the consideration of the Trial Examiner was
filed by the U. E. U. after the close of the hearing.
Thereafter, the Trial Examiner issued his Intermediate Report
dated June 29, 1942, copies of which were duly served upon the respond-
ent, the Plan, the U. E. U., and Hallworth. He found that the re-
spondent had engaged in and was engaging in unfair labor practices
affecting ,commerce, within the meaning of Section 8 (1) and (2) and
Section 2 (6) and (7) of the Act, and recommended that the respond-
ent cease and desist therefrom and withdraw recognition from and
disestablish the Plan and the U. E. U. and take other affirmative action
deemed necessary to effectuate the policies of the Act. Exceptions to
the Intermediate Report together with supporting briefs were filed on
July 29, 1942, by the respondent, and on July 30, 1942, by the U. E. U.
Thereafter, pursuant to notice duly served on the parties, a hearing
was held before the Board in Washington, D. C., on September 10,
1942, for the purpose of oral argument. The respondent and the
U. E. U. were represented by counsel, and Hallworth appeared pro se;
all participated in the hearing.
The Board has considered the exceptions and the briefs, submitted by
the respondent and the U. E. U., and, insofar as the exceptions are
inconsistent with,the findings of fact, conclusions of law, and order set
forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Commonwealth Edison Company, an Illinois public utility corpora-
tion with its principal office and most of its physical properties in
Chicago, Illinois, is engaged in the production, purchase, transmission,
distribution, and sale of electric current. The respondent and its
operating subsidiaries serve an area of approximately- 11,000 square
miles with an estimated population of 5,000,000 in Chicago and its
environs . There are no competing sources of electric power in the
area served by the respondent.
COMMONWEALTH EDISON COMPANY 485
The gross annual operating revenues of the respondent for the years
1939, 1940, and 1941, were, respectively, $96,333,146, $101,416,619, and
$107,162,061 . The respondent serves 964 ,355 customers engaged in a
variety of enterprises , including post offices, court houses , customs
houses, weather bureaus , a harbor light station, a United States Gov-
ernment Naval Training School, the Municipal Airport of the City-of
Chicago, the Illinois Bell Telephone Company which is engaged in
the business of furnishing telephone service in the State of Illinois and
in 2 counties in the State of Indiana, the Western Union Telegraph
Company a t its main 'Chicago office and warehouse, and 6 railway ter-
minals in Chicago which are used by 25 railroads engaged in the inter-
state movement of passengers and freight.
During the year 1940, the respondent purchased fuel, incandescent
bulbs, motors, cable , tubing, switches , transformers , and other ma-
terials and supplies valued at $28,602,000 , of which approximately 54
percent represented shipments to the respondent from outside the
State. During the same period , the respondent purchased , for the
purpose of resale, electrical appliances , equipment , and other mer-
chandise at an aggregate cost of $2,997,000, of which, approximately
13 percent represented shipments to the respondent from outside the
State. Substantially the same amount and percentage of purchases
were made by the respondent outside the State in 1941. In 1940, the
respondent purchased $7,144,334 worth of current generated in the
State of Indiana. During the year 1941 , the respondent purchased
and received from the same source current costing $6 ,835,530.
11. THE ORGANIZATIONS INVOLVED
Employes Representation Plan of the Commonwealth Edison Com-
pany and the Utility Employes Union are unaffiliated labor organiza-
_tions . Each admits to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The Employes Representation Plan
The Plan was established in March 1921 at the instance of the re-
spondent . The constitution was prepared at a convention called by
the respondent- and attended by delegates elected by the employees and
by an equal number appointed by the respondent . The constitution
became effective upon its adoption by the employees in an election by
secret ballot and upon the approval of the directors of the respondent.
The Plan has continued in existence ever since its formation.
The constitution states its specific object to be the furnishing through
the-meeting of elected representatives of the employees and appointed
representatives of management of "a definite channel through which
'486 - DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employes individually or collectively, and either personally or
through representatives, may take up with the management for dis-
1cussion and recommendation, questions in reference to rates of pay,
hours, conditions of work, or any other subject of interest to them as
-employes." Membership in the Plan is automatic, all employees with
6 months' or more service being eligible to vote at its annual elections.
The constitution makes no provision for any treasury, or for dues,
initiation fees, or other methods of raising funds, but contains a pro-
vision that the respondent is to pay employee representatives their
regular salary while absent from work on Plan activities. Provision
is also made for reimbursement by the respondent of any necessary
expenses. Russell Golightly, an employee representative for 5 years
under the Plan, testified that he had spent about 8 hours a week on
Plan activities and had been paid for the time so spent.
The governing bodies of the Plan are the departmental joint councils
and the general joint council. There are 11 departmental joint coun-
cils, each composed of employee representatives and deputy or alter-
nate representatives chosen each year by secret ballot and an equal
number of management representatives appointed by the heads of the
various departments from among the respondent's supervisory force.
The general joint council is composed of a number of employee and
management representatives elected by each group from among the de-
partmental joint councils. The general joint council meets' every 2
months and the departmental joint councils sleet each month in the
meeting rooms furnished by the respondent.
The Plan further provides for equal representation of manage-
ment and employees on each committee of the joint councils, for the
participation in the affairs of each council of the respondent's man-
ager of industrial relations, or his designee, as ex-officio chairman
without vote, and for the appointment of a secretary for each de-
partmental joint council by the appropriate plant department head
and of a secretary for the general joint council by the president of the
respondent, subject in each case to the approval of the representatives.
Except for matters relating to the election of employee representa-
tives all amendments to the Plan require a three-fourths vote of the
entire general joint council and must be approved by the respondent's
president. No amendment which will "destroy the equal voting
power of the employe representatives and the management repre-
sentatives on any Joint Council" is, however, possible.
In conformity with the objects outlined in its constitution, the
Plan functions primarily as an agency for the adjustment of griev-
ances and the .joint discussion, of employee problems. In fact, no
contract or collective agreement has ever been entered into by the
respondent with its employees under the Plan. Grievances are sub-
COMMONWEALTH EDISON COMPANY 487
mitted in the first instance to the departmental joint council with a
right of appeal ' to a vice president of the respondent , then to the
general join council, and finally to the respondent's president. If
the president cannot reach an agreement with the employee repre-
sentatives , the Plan provides that the matter shall be submitted to
arbitration for final settlement . Resort to arbitration has, in fact,
never been made. In a booklet issued by the respondent , apparently
in 1933, it was stated that no appeal had ever been taken from a
decision of a vice president . Golightly testified that no arbitration
had been had with the respondent since 1929 , the year of his
employment.
The Plan makes no provision for regular meetings of the em-
ployees generally , or separate meetings of the employee representa-
tives apart from management , or for the ratification by the employees
of the action taken by any agency of the Plan. The employees are
kept informed of Plan meetings and activities through copies of the
minutes, of such meetings and by other Plan materials which are pre-
pared) 'and distributed by the respondent throughout the various
departments.
In view of the origin of the Plan, the participation of the re-
spondent in its activities through management representatives, the
required approval by the respondent of any changes in the Plan, and
the complete dependence of the Plan upon the respondent 's financial
'support, we find, as did the Trial Examiner, that the Plan is
patently illegal and that it exists solely as a management substitute
for self-organization of employees and genuine collective bargain-
ing. We find , further, that since July 5, 1935 , and at all times there-
after , the respondent has dominated and interfered with the adminis-
tration of the Plan, and has contributed financial and other support'
thereto, thereby interfering with, restraining , and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
B. The U. E. U.
1. Organization of the U. E. U.
The following description of the history of the U. E. U. is sub-
stantially undisputed and is based primarily on the testimony of
Russell Golightly, its president: Although not provided for by the
Plan, the employees in the substation department of the respondent,
with the knowledge of the respondent, had been holding 'separate
group meetings semi-annually since 1936 or sometime prior thereto.
On April 26, 1937, shortly after the decision of the United States
Supreme Court upholding the constitutionality of the Act, the em-
ployees met at a substation of the respondent and adopted a motion
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
providing that the employee representatives of the Plan "study vari-
ous plans of other company employe bodies to help in drawing up
a substitute employee plan to replace our present Employe Repre-
sentation Plan, when and if necessary * * *"
Shortly thereafter a, committee of 12 to 15 employee representatives
under the Plan, consisting of at least 1 representative from each
departmental joint council , was established . After this group, here-
inafter referred to as the Provisional Committee, had met in a room
furnished by the respondent , some of its members called on G. W.
Adrianson , the respondent's manager of industrial relations. They
inquired whether the respondent was subject to the Act and whether
the enactment of a State labor relations law was to be expected.
Adrianson made an appointment for the committee to confer with
Ralph R. Bradley , who had represented the respondent for more than
2O years as its legal counsel and who was frequently consulted by it
on labor relations.
On May 18, 1937, five members of the Provisional Committee, Cen-
tanni, Thorp, Altheide, Golightly, and Brady, conferred with
Bradley at his offices during the working hours of several of these
employees. Those committee members who were absent from their
work by reason of this meeting , the prior group meeting, or the
meeting with Adrianson suffered no deduction in pay. A transcript
of the conference is in evidence . Because of the significance of the
conference in connection with our findings as to the U. E. U., we shall,
insofar as is material , outline the course of the conference and quote
verbatim from the statements made : The group asked Bradley
whether the Act applied to the respondent and, if so, whether the Plan
was valid under the Act. They referred also to the possibility of a
State labor relations act and asked Bradley whether such legislation
might outlaw the Plan. Bradley inquired whether these questions
had been taken up generally "with the employees ' organizations" and''
Thorp replied :
No, we are keeping it quiet from them, as a matter of fact, as a
measure of policy. We are really interested in the Employee
Representation Plan , and we are interested in making it more
effective than it is. We are trying to make it more effective all
the way along , and we came to the conclusion that it would be
better at the present time not to tell the employees that we are
thinking about this , but if such a thing came about that the
Wagner Act threw out this thing , we thought it would be nice
to have an outline of a substitute plan which we could put in
right immediately.
Bradley thereupon commented as follows upon the committee's
approach to the problem : "You are going to sort of keep yourself
COMMONWEALTH EDISON COMPANY 489
as an executive group to study this until you find out what you want
to do." Bradley then discussed with the group, the Jones & Laughlin
decision and indicated that he could not state positively whether the
respondent was subject to the jurisdiction of the Board.
At this point Altheide explained:
You understand we like the Plan as it is now, the majority of
us . . . And we don't want to inject any new plan now,
but we would like to have it ready in case the time comes when
we have to use it.
A similar view was expressed by Golightly, who stated : "If the
occasion never arises, our substitute 'plan •will just remain in the
pigeon hole."
Bradley then suggested that the committee go slowly "in broad-
casting your purpose" and that the committee "kind of keep your
shirts on, and see what is going on in the labor field . . . not .. .
what is going on in the matter of the efforts of organized labor, but
in the matter of organized employee units."
When, at this juncture, Bradley was asked whether he would act
as counsel for the committee, he declined, commenting, however:
But I can tell you one thing, I think I would strain a point if
I saw. you sliding towards a bad representative. I don't know
how I would do it, but I would, some way. But you don't need
one right now.
During the discussion, the question of meeting on "company time
and, space" was raised by the employee representatives. Bradley
replied :
If we did what we wanted to do, we would want to get in here
and take off our coats and help to bring this Plan within the law.
But whatever might be our good intentions, if we did that, not
.only would we be criticized, for that would not be the serious
thing; but the question is, the thing is that the plan would be
criticized and attacked. It isn't want of company sympathy, or
it isn't stinginess or anything of that kind. It is just this law,
and the attitude of organized labor.
At another point in the discussion, Brady inquired whether the
respondent would continue its Mutual Benefit Association in the event
that the employee representatives left the Plan. Bradley replied
that the respondent would. He was then asked what the respondent's
attitude would be toward the employee representatives who were con-
cerned with a substitute for the Plan and replied:
Well, the attitude of the company would be the attitude 'that I
have now, that the only thing that motivated you men in con-
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
templating this sort of thing was the fact that you were driven
to it by virtue of the law. Now, the company is not going to
quarrel with that. They are going to feel you are trying to do
something that is in the interests of both the employees and the
company.
Bradley continued :
It isn't going to affect the company's attitude towards you men,
.only the company would have this feeling, that you had been
satisfied with the relations that existed heretofore, and that you
were going to try and preserve those relations in so far as you
could under the law. There isn't any reason why that shouldn't
promote the kindliest management feeling, and I know it would.
Toward the end of the discussion Bradley stated :
But I think you will find when you get ready on any such move-
ment as this, and if this movement becomes necessary, you will
find that you are going to have no difficulty in finding out where
the majority will want to go. I say that for this reason, that
you have been going along as an organized group for so long, that
that logically would follow. Unless there was sonic revolution
in the ranks, why, it would follow logically.
As the discussion ended, Bradley volunteered to obtain for the
committee copies of employee representation plans of other companies.
On the day following the conference with Bradley, the departmental
joint council of the substation department held a meeting. Present
were five or six management representatives and the secretary of the
general joint council. Golightly, a member of the council, read the
minutes of the group meeting of April 26, 1937, at which the decision
was reached to study substitutes for the Plan "when and if necessary"
and, by action of the council, the record of that gathering was incor-
porated in the council's minutes. The minutes of this council meeting
were then, as was customary under the Plan, distributed by the re-
spondent to the employees in the department.
On May 20, during working hours, the full Provisional Committee
met again in a meeting room of the respondent and discussed the views
expressed by Bradley. When one member suggested that future meet-
ings should not be held on company time and property, it was agreed
that the next meeting of the Provisional Committee be held in a place
to be provided, by one of the members. Subsequently a subcommittee
was chosen to draft a plan of employee representation.
Golightly testified that in May or June 1937, in furtherance of the
Provisional Committee's work, he assisted in the preparation for dis'-
tribution among the respondent's employees of petitions naming a
committee of 11, each of whom was an employee representative on a
COMMONWEALTH- EDISON COMPANY '491
different departmental joint council, and authorizing that committee
to draw up a constitution for an organization to be known as Em-
ployees Association of the Commonwealth Edison Company. He testi-
fied further that these petitions were circulated among the employees
within the next few months and that from 1,250 to 1,500 employees
signed. The minutes of the Provisional Committee meeting of June
21, 1937, show that there was discussion as to whether "signing the
original petitions could be done on company time." The minutes then
report: "Mr. Centanni believed we should not mention the Wagner
Plan in pushing the new'plan which would allow the signing of peti-
tions on company time." It would appear from the evidence that the
petitions were still being circulated in June 1938, and that the Pro-
visional Committee was still heeding the cautionary instructions of
Bradley to go slowly "in broadcasting your purpose." -
The Provisional Committee met irregularly from June 1937, until
October 10, 1938, when the following temporary officers were elected
from among its members: Centanni, president; Braun, vice presi-
dent; Golightly, secretary; and Thorp, treasurer. At the same time
the Provisional Committee converted itself into 'a temporary board
of directors for the proposed organization. On October 17, 1938,
the committee abandoned the name, Employees Association of the
Commonwealth Edison Company, and chose instead the name, Utility
Employes Union.
On December 5, 1938, the United States Supreme Court rendered
a decision holding that the Consolidated Edison Company of New
York, the public utility serving New York City, was subject to the
Act.3 The next day the officers of the Provisional Committee de-
cided to inform their fellow employees of the existence of that group
and of the nature of its work. Application blanks had already been
ordered in anticipation of the decision and were ready at about that
-time, a draft of the constitution was planographed, and a drive was
begun to enroll employees of the respondent. According to the
testimony of Golightly, the first organizational meeting, of the U. E.
U. was held on December 13, 1938, about 19 months after the Pro-
visional Committee had come into existence.
By the summer of 1939 the U. E. U. had enrolled about 1500 mem-
bers from among approximately 8500 employees of the respondent.
It did not thereafter make any substantial progress toward its goal
of representing a majority of the employees. Augustus De Clercq,
the respondent's vice president in charge of construction and serv-
ice, testified that inquiries from employees about the Plan and the
respondent's policy as to collective bargaining began to reach the
respondent soon after the United States Supreme Court upheld the
constitutionality of the Act in 1937 and increased in number after
° Consolidated Edison Co . v. N. L. R . B, 305 U. S. 197.
492• DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the decision in the Consolidated Edison case. Thereafter, in Febru-
ary 1941, De Clercq caused to be issued the following instructions
to all the respondent's supervisory employees in 3 departments :
It is the policy of the Company not to interfere with or attempt'
to influence or advise its employees, in any manner, concerning
the kind of collective bargaining organization they now have
or wish to have.
Therefore, foremen and other supervisors must-
Avoid expressing their opinions, or giving voluntary or solicited
advice to our employes (either on or off the job) regarding the
advantages or disadvantages of any type of collective-bargain-
ing organization.
Avoid expressing their opinions, or giving advice to our employees
concerning any particular labor union or unions.
The first membership meeting of the U. E. U. was held on Novem-
ber 21, 1941, at .which time members of the Provisional Committee
were elected to serve as temporary officers of the new ` organization.
In describing the prior history of the U. E. U. at this meeting,
Golightly stated :
This is your organization. This is your provisional committee,
saying its work is completed. It has given you a temporary or-
ganization. You said you wanted to use it if and when it be-
came necessary.
A motion was later made that the U. E. U. become a permanent
crganization "with the stipulation that if the Labor Board decision
finds it illegal, that we appoint committees to form something that
will stand up under the Wagner Act." Golightly advised against
the form of the motion on the ground "that it was tying up the
new one with the old one." The motion was then revised to state
only that the, organization be made permanent; it was adopted.
On November 28, 1941, at a meeting of the Board of Directors of the
U. E. U. the following permanent officers were elected : Herbert Miles,
president; Cornelius Lubben; vice president; Russell Golightly, secre-
tary; and Paul Kocan, treasurer. Miles had been an employee repre-
sentative under the Plan from 1937 to 1941, and a member of the general
joint council from 1939 to 1941. Lubben had been elected a deputy or
alternate employee representative in 1939 and 1940, and a regular rep-
resentative'in 1941. Golightly had been elected employee representa-
tive in 1936 and served as such continuously except for the year 1939.
He was also a member of the general joint council from 1936 through
1938, and in 1941. Kocan had been an employee representative from
1938 -to '1941, and a member of the general joint council in 1939 and
1940.
CO'MMONWEALT'H EDISON COMPANY 493
On December 19, 1941, the U. E. U. agreed to pay Reuben Freedman,
an attorney who had been advising the Provisional Committee since
1937, the sum of $1,500 for past and future services. Regular collec-
tion of dues began in January 1942, the dues being fixed at 25 cents a
month. On April 3, 1942, the second membership meeting of the
U. E. U. was held, at which new officers were elected 4 and its constitu-
tion which had been drafted by the Provisional Committee with the
aid of a special subcommittee was formally adopted. At the time of
the hearing the U. E. U. had 2,000 members, one-half of whom had
paid dues to the organization, according to Golightly.
There is a striking similarity between the constitutions of the
U. E. U. and the Plan. Most significant are the following' parallels:'
(1)' eligibility requirements for membership in both organizations are
substantially alike, the U. E. U. constitution providing specifically
that election to membership of eligible employees is mandatory; (2)
-employee representatives under the Plan and delegates under the
U. E. U. are elected from each of the departments on the same basis;
(3) eligibility requirements for employee representatives under the',,.
Plan and delegates under the U. E. U. are identical ; and (4) qualifica-
tions for holding and maintaining office in both organizations are
similar and permit the respondent, by transfer, promotion; or dis-
charge, to deprive a representative or delegate of his office.
.The U. E. U. had, since November 1938, been preoccupied with the
question of its apparent relationship to the Plan. On November 1,
1938, the Provisional Committee agreed that its members should retain
their positions in the Plan "until such time as the'Utility Employees
Union'becomes permanent and active."' In December 1938 and Jan-
uary 1939, Golightly and others on the Provisional Committee resigned
a employee representatives under the Plan. Late in 1939, however,
as a matter of policy, the U. E. U. decided that its officers should again
seek office-in the Plan. Golightly was reelected as employee representa-
tive that year,5 as were other leaders of the U. E. U. Thereafter, while
a representative of the Plan, Golightly took advantage of'the privileges
granted him 'by the respondent under the Plan to solicit the 600 em-
ployees in his department during working hours to join the U. E. U.5
i Golightly was elected pi esident , Miles, vice pi esideat ; Kocan , secretary ; and C. C
Carlson , treasuier,
Golightly testified that he returned to hold offii e under the Plan for two reasons, naively
that eniployees m Ills, department urged him to do so, and that he wanted a means of con-
tacting ompimees concerning the U E U Golightly characterized this method of reaching
eniplo3 ees a s one of "hot ing from within."
"At the hi .t membership meeting of the U E U., held on, November 21, 1941, Golightly
detended the U E U from charges that it had been organized on company time and prop-
ci ty ' In the course of his remarks lie stated : "Naturally a lot of' employees have been
contacted1 on company time. how else could they be contacted ." Explaining this reference
Gohghtly'reatified ' 1'l1'eie is no way 'to contact the employees other than , having an.em-
plov"e r,preseutatiie , except at the meeting, and to have meetings is quite an expense
494 DECISIONS- OF NATIONAL LABOR. RELATIONS BOARD
On January 16, 1942, at a meeting of the board of directors of the
U. E. U. the policy was varied again to require that employee represen-
tatives under the Plan resign as such and retain their membership in
the U. E. U. Golightly testified, however, that certain employee rep-
resentives-under the Plan were members of the U. E. U. at the time of
the hearing.
The record clearly establishes that the U. E. U. had as officers and
members those identified with management. The U. E. U. accepted
without question, for a considerable period of time, employees Thorp
and Centanni as officers and also enrolled as members 20 chief oper-
ators whose interests are closely allied with management. As indi-
cated above, Thorp, a Plan representative, was on the committee
which met with Bradley on May 18, 1937, served on the Provisional
Committee of the U. E. U., and was elected the Provisional Commit-
Lee's treasurer on October 10, 1938. He remained in that office until
he resigned on November 5, 1941. During the period in which he
served the U. E. U., his job designation was changed from engineer
to engineer of materials and instruments, but his duties remained the
same. Industrial Relations Manager Adrianson testified that Thorp
was classified by the respondent as "management" on July 1, 1940, 16
months before his resignation from the U. E. U. Centanni, a Plan
representative, was on the committee which met with Bradley, served'
on the U. E. U.'s Provisional Committee, and was elected the Provi-
sional Committee's president on October 10, 1938. He remained in
that office until his resignation on April 19, 1940. While serving the
U. E. U., Centanni's job designation was changed from pricer to that
of buyer, but his duties since 1938 have been those of negotiating
contracts for materials and supplies with outside buyers, of serving
as individual consultant for the purchasing department, and of di-
recting at times the efforts of some employees, subject to the super-
vision of the purchasing agent. On July 1,, 1940, he was also classi-
fied by the respondent as "management." The record also reveals that
20 of the respondent's chief operators were members of the U. E. U.
at the time of the hearing. The chief operators work in substations
where they keep records of substation equipment, attendance records,
and apprentice training reports; arrange work schedules for em-
ployees; are responsible for the training of new men and for keep-
ing employees in their respective stations well informed on technical
skills in connection with the operation of the stations; sit with man-
agement on the trial board when an employee is charged with an
operating error; report inefficiency and laziness to the superintend-
ent; often relay requests for leave from employees to the engineer of
operations; and receive $15.00 more per month than other employees
COMMONWEALTH EI)ISON COMPANY 495
at the manned substations, where the average number of employees is
7. Although the respondent classifies chief operators as employees,
and although they do not have the power to hire or discharge, it is
clear that the work of chief operators is supervisory in nature. `
On December 23, 1941, 2 months after charges alleging that the
Plan was company-dominated had been filed with the Board,7 Go-
lightly, as secretary of the U. E. U., wrote to the respondent that its
recognition and sponsorship of the Plan constituted an unfair labor
practice under the Act and requested that it be disestablished and that
notices to that effect be posted. The respondent replied that it believed
"that, while employees were free to form and join whatever union or
bargaining agency they may choose, the Company should not disturb
the relations with its employees which presently exist unless and until
the National Labor Board has determined in an orderly way that
such relations should be altered or discontinued. Having these things
lii mind, Commonwealth Edison Company feels itself constrained to
refuse the demands in your letter made."
2. Concluding findings
The U. E. U. was brought into being by employee representatives
of the Plan, not because of a desire for emancipation from the re-
straints of *the Plan through genuine self-organization but rather
as it device to perpetuate the dominated organization by means of a
substitute organization to be made available as a successor to the
Plan in the event the latter organization were outlawed by the Board.
From the beginning, the respondent was advised of the plans and
purposes of the leaders of the U. E. U. and through its counsel in-
dicated clearly its sympathy, support, and cooperation, urging only
that they proceed slowly and take no definite action unless and until
necessary.
The employee representatives on the U. E. U., advised by Bradley
of the respondent's approval and willingness to cooperate, circulated
their petitions and solicited employees during working hours, care-
fully refraining from any explanation as to the relationship between
the U. E. U. and the Plan. For many years the employees had ob-
served the employee representatives of the Plan enjoying the
respondent's favor. As the respondent did nothing to dispel the
impression that this new activity was being carried on under its
sponsorship, and as it never publicly advised all its employees that
they were free to form: or join organizations of their own choosing,
' The U. E. U. discussed these charges at the membership meeting of November 21, 1941.
I. Its brief the U. E. U: sought to explain the condemnation of the Plan by it after the
charges had been filed herein, by saying that the "simple truth is that the advice of
[Freedman ] their counsel at long last was beginning to have some effect."
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees could rightly assume that Golightly and others, while
acting for the U. E. U., were still agents of the respondent , engaged
in activities of which it approved . Even as late as February 1941,
after the employees generally had for several years been inquiring
as to the , legality of the Plan and the respondent 's collective bargain-
ing policy, the respondent merely instructed its supervisors' to refrain
from giving any advice as to collective bargaining agencies or labor
unions. • That the respondent 's failure to make the necessary dis-
avowal was entirely intentional is apparent from - Bradley's state-
ment-to the promoters of the U. E.U. that, since the employee repre-
sentatives had been functioning as an organized group for such a-
long time, the employees generally would undoubtedly follow the
group in its effort to perpetuate the Plan in different form. The
respondent 's refusal of the U. E. U.'s request in December 1941, after
charges of company -domination of the Plan had been filed , to dis-
establish the Plan can only be interpreted to mean that it would
openly accept the U. E. U. as a substitute for the Plan if , the Board
found the Plan to be illegal and ordered it disestablished . Indeed,
the respondent states in its brief that "if the Board decides it [the
Plan] is a technical violation of the Act, then it will become neces-
sary to override the wishes of the employees and disestablish."
- Nor did the promoters of the U. E. U. attempt, in the basic docu-
ment which was to govern their new organization or in their con-
duct of its affairs, to assert and demonstrate their independence of
the respondent and the Plan. The constitution of the U. E. U. pro-
vides for the same structural set-up as the Plan, thereby perpetuating
the organization of the Plan . Moreover , the U. E. U. constitution
subjects the organization to the respondent 's continuing control. As
iinder the Plan, the respondent may prevent a member of the U. E. U.
from holding office or serving as a delegate because of the require-
ment of continuous employment by the respondent . The respond-
ent may also deprive a duly elected officer or delegate of his office and'
his representative status by discharging hint, by transferring him to
another voting unit, or by transferring him or promoting him
to a supervisory position. The power so placed in the respondent
affords it the final decision as to who shall speak as the representa-
tives of its employees . These provisions , like those upon which they
were modeled, furnish sufficient insurance against genuine independ-
ence and clearly render impossible any real collective bargaining.
Even as late as December 1941 , it would have been difficult to dis-
tinguish between the Plan and the U. E. U. Golightly and other
representatives in 1940 and 1041 were active as officers in both
organizations . Thorp and Centanni , who assumed active leadership
COMMONWEALTH EDISON COMPANY 497
in the U. E. U., were designated by the respondent as "management,"
and 20 chief operators were members of the U. E. U.
Both the respondent and the U. E. U. contend that events occurring
before and after the general membership meeting of the U. E. U. on
November 21;'1941, are material to the issue of interference and domi-
nation and show that the U. E. U. has been and is now free from such
interference and domination by the respondent. In substance, such
facts are that the committee which met with Bradley did; after the
first few meetings, on the advice of Attorney Freedman, meet off com-
pany property, on its own time, and at its own expense; that the
U. E. U. was able to enroll only 2,000 employees in all, out of approxi-
mately 8,500 employees, due to the fact that the continued sponsorship
,of the Plan by the respondent indicated to the employees the respond-
ent's disapproval of the U. E. U.; that the U. E. U. became a permanent
organization as a result of the general membership meeting on Novem-
ber 21, 1941, and that the U. E. U. thereupon proceeded to condemn
the Plan and-ask for-its disestablishment, to inform the respondent's,
employees of such condemnation, to collect dues regularly, to adopt a
constitution, and to elect permanent officers. We do not believe that
these circumstances hni e served in any degree to emancipate the
U. E. U. and the employees generally from the domination of the
employer-controlled Plan.
We find that the respondent has dominated and interfered with the
formation and administration of the U. E. U. and has contributed
finalciaf.alid-other support,tlhereto, and has thereby interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE -EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent-de-
scribed in Section I above, have a close, intimate, and substantial rela-
tion 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 t Ilat the respondent has engaged in unfair labor prac-
tices, we shall order that it cease and desist therefrom and take affirma-
tive actipn designed to effectuate the policies of the Act.
We have found,that the respondent dominated and interfered- with
the administration of the Plan and with the formation and administra-
tion of the U. E. U. and has contributed financial and other support to
each. We shall order that the respondent withdraw all recognition
from the Plan and the U. E. U. and completely disestablish the Plan
493508-43-vol. 45--32
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and the U. E. U. as a representative of any of its employees for the
purpose of dealing with the respondent concerning grievances, labor
disputes , wages, rates of pay, hours of employment , or conditions of
work.
The respondent's unlawful course of conduct discloses a purpose to
defeat self-organization and its objects . Because of such conduct and
its underlying purpose, we find that the unfair labor practices in which
the respondent has engaged are persuasively related to the other unfair
labor practices proscribed by the Act and that the danger of their
commission in the future "is to be anticipated from the course of the
respondent 's conduct in the past ." s The preventive purposes of the
Act will be thwarted unless the terms of our order are co-extensive
with the threat . In order, therefore , to make effective the interde
pendent guarantees of Section 7 of the Act, to prevent a recurrence of
unfair labor practices and thereby to minimize industrial strife which.
burdens and obstructs commerce, ind ' tlius effectuate tie, policies, of
the Act, we must order the respondent to cease and desist from iii any
manner infringing the rights guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. Employes Representation Plan of the Commonwealth Edison
Company and Utility Employes Union are labor organizations, within
the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the administration of Em-
ployes Representation Plan of the Commonwealth Edison Company
and- with the formation and administration of Utility Employes
Union, and by, contributing financial and other support to each, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (2) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4.' The aforesaid unfair labor practices are iinfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) 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 re-
8 N. L. R. B. v. Express Publishing Company, 61 S. Ct. 693, 700.
COMMONWEALTH EDISON COMPANY 499
spondent, Commonwealth Edison Company, and its officers, agents,
successors, and assigns, shall
1. Cease and desist from :
(a) Dominating or interfering with the administration of Em-
ployes-Representation Plan-of the -Commonwealth Edison Company
and Utility Employes Union, or with the formation o'r administra-
tion of any other labor organization of its employees, and from
contributing financial or other support to the said organizations, or
any other labor organization of its employees;
(b) Recognizing Employes Representation Plan of Commonwealth
Edison Company or Utility Employes Union as the representative
,of any of its employees for the purpose of dealing with the respond-
ent concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or conditions of work;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Withdraw all recognition from-Employes Representation Plan
of Comnionnvealth-Edison'Company and Utility Employes Union as
the representatives of any of its employees for the purpose of deal-
ing-with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, or other conditions of employ-
ment; and completely disestablish Employes Representation Plan of
the Commonwealth Edison Company and Utility Employes Union
as such representatives;
(b) Post immediately in conspicuous, places in each building owned
or operated by the respondent and in which its employees work,
and maintain for a period of at least sixty (60) consecutive days
from the date of posting, notices to its employees stating (1) that
the, respondent will not engage' in the conduct from which it is
ordered to cease and desist in paragraphs 1 (a), (b), and (c) of this
Order; and (2) that the respondent will take the affirmative action
set forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Thirteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
CHAIRMAN MILLIS took no part in the consideration of the above
Decision and Order.