Consolidated Edison Co. of New York, Inc.

National Labor Relations Board - Board Decisions

Nov 10, 1937

4 N.L.R.B. 71 (N.L.R.B. 1937)

In the Matter of CONSOLIDATED EDISON COMPANY OF NEW YORK, INC.,
AND ITS AFFILIATED COMPANIES-BROOKLYN EDISON COMPANY, INC.;
NEW YORK AND QUEENS ELECTRIC LIGHT AND POWER COMPANY;
WESTCHESTER LIGHTING COMPANY; T HE YONKERS ELECTRIC LIGHT
AND POWER COMPANY ; NEW YORK STEAM CORPORATION ; and CON-
SOLIDATED TELEGRAPH AND ELECJrRIC SUBWAY COMPANY, and UNITED
ELECTRICAL AND RADIO WORKERS OF AMERICA, AFFILIATED WITH THE
COMMITTEE FOR INDUSTRIAL ORGANIZATION.
Case No. C-2046.-Decided November 10, 1937
Gas and Electric Utility Industry-Interference, Restraint, and Coercion: em-
ployment of industrial spies ; recognition of a favored labor organization for its
members only , at a time when organization incomplete and membership
negligible , as the first step in plan to dictate choice of representative of
employees ; effecting transfer of a company -dominated union over to favored
labor organization ; urging , persuading , and warning employees to join favored
labor organization and threatening them with discharge for non-compliance ;
permitting officers of dissolved company -dominated union who had become officers
of favored labor organization to utilize , in behalf of favored labor organization,
their prerogatives as officers of company -dominated union, such as use of com-
pany offices , stenograph.ic services , and expense accounts , while paid regular
salaries by respondents ; permitting organizers and dues-collectors of favored
labor organization to carry on activities on comppny time and property, while
similar privileges denied to rival labor organizations ; execution of contracts
with favored labor organization in behalf of members only, for the purpose of
consummating and perpetuating illegal course of conduct ; respondents ' construc-
tion of contracts as exclusive collective bargaining agreements in spite of knowl-
edge that membership in favored labor organization is not the free choice of
majority of employees-Collective Agreements : invalid, even though for members
only, since executed for the purpose of consummating and perpetuating plainly
illegal course of conduct; respondents ordered to' cease and desist from giving
effect thereto--Discrimination : discharge--Reinstatement Ordered-Back Pay:
awarded.
Mr. David A. Moscovitz and Mr. Will Maslow, for the Board.
Whitman, Ransom, Coulson d Goetz, by Mr. William L. Ransom
and Mr. Pincus M. Berkson, of New York City, for the respondents.
Mr. Louis B. Boudin and Mr. Sidney Elliott Cohn, of New York
City, for the United.
Mr. Joseph Friedman, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges duly filed by United Electrical and Radio Workers of
America, herein called the United, the National Labor Relations
67573-38-vol iv-6 71
72 NATIONAL LABOR RELATIONS BOARD
Board, herein called the Board, by Elinore Morehouse Herrick, Re-
gional Director for the Second Region (New York City), issued its
complaint dated May 12, 1937, against Consolidated Edison Company
of New York, Inc., and its affiliated Companies : Brooklyn Edison Com-
pany, Inc., New York and Queens Electric Light and Power Company,
Westchester Lighting Company, the Yonkers Electric Light and
Power Company, New York Steam Corporation, and Consolidated Tel-
egraph and Electrical Subway Company, herein called the respondents,
alleging that the respondents had engaged in and were engaging in
unfair labor practices affecting commerce within the meaning of Sec-
tion 8 (1), (2), and (3) and Section 2 (6) and (7) of the Natioaal
Labor Relations Act, 49 Stat. 449, herein called the Act.
In respect of the unfair labor practices, the complaint in substance
alleged (1) that the respondents had employed and were employing
industrial spies for the purpose of disclosing to the respondents the
activities of their employees in and on behalf of labor organizations;
(2) that on or about November 29, 1935, the respondents discharged,
and thereafter refused to reinstate, Martin A. Wersing, Julius A.
Greulich, and Michael Wagner, employees of the' respondents, and on
or about June 19, 1936, discharged, and thereafter refused to rein-•
state, William J. Kennedy and John Emler, employees of the re-
spondents, for the reason that they had engaged in concerted activities
with other employees of the respondents for their mutual aid and
protection; and (3) that the respondents had interfered with, re-
strained, and coerced their employees in the exercise of their right to
form, join, and assist labor organizations of their own choosing and
were continuing to do so, had contributed and were contributing
financial and other support to the International Brotherhood of Elec-
trical Workers, herein called the I. B. E. W., and had coerced and
were coercing their employees to join or assist the I. B. E. W.
Copies of the complaint and of notice of a hearing to be held
on June 1, 1937, at New York City, both dated May 12, 1937, were
duly served upon the respondents, upon the United, and upon the
I. B. E. W. On May 25, 1937, the Regional Director issued and
-duly served upon the parties and the I. B. E. W. an -amended notice
of hearing, specifying that the hearing would be held on June 3, 1937,
instead of on June 1, 1937.
On May 17, 1937, the respondents, appearing specially, filed a mo-
tion to dismiss the complaint for lack of jurisdiction, on the ground
that the Act was inapplicable to the respondents and their labor
relations with their employees, for the reason, it was asserted, that
the respondents conduct a local, intrastate business and are, therefore,
subject exclusively to the New York State Labor Relations Act,'
1 Chapter 443 of the Laws of 1937. The State Act is also designated as Article 20 of
the Labor Law.
DECISIONS AND ORDERS 73
which was to become effective on July 1, 1937. The motion included
a request that the motion be heard and determined by the Board
prior to the hearing on the complaint, and was accompanied by an
affidavit of Oscar H. Fogg, vice-chairman of the board of trustees
of the respondent Consolidated Edison Company of New York, Inc.,
and vice-chairman or member of the board of directors of each of the
affiliated companies named as respondents, containing a statement
of facts tending to show that the respondents' business was of an
intrastate character. On June 2, 1937, the Board denied the respond-
ents' request for a prior and separate hearing by the Board on the
motion to dismiss the complaint.
Pursuant to the amended notice, a hearing was held at 'New
York City on June 3, 10, 11, 14, 15, 16, 17, 23, 24, and July 6, 1937,
before Robert M. Gates, duly designated as Trial Examiner by the
Board. The Board, the respondents, and the United were repre-
sented by counsel and participated in the hearing. The I. B. E. W.
did not appear at the hearing. Full opportunity to be heard, to
examine and cross-examine witnesses, and to produce evidence bearing
on the issues was afforded all the parties.
At the commencement of the hearing, argument was heard on two
separate petitions to intervene filed with the Regional Director prior
to the hearing by The Independent Gas and Electric Workers Union
of Westchester County and by Independent Gas and Electric Union,
both labor organizations claiming to have filed with the Regional
Director informal charges against the respondents. The complaint
herein was not based on these informal charges, but only on the
formal charge filed by the United. Upon separate objections by coun-
sel for the Board, the respondents and the United, the Trial Examiner
reserved decision thereon, but on June 10, 1937, the second day of
the hearing, he denied both petitions to intervene. The ruling is
hereby affirmed.
At the commencement of the hearing, the respondents reserved
their objections to the jurisdiction of the Board and noted, an excep-
tion to the order of the Board denying a prior and separate hearing
on the respondents' motion to dismiss the complaint. At the close
of the presentation of the Board's case, the motion to dismiss the com-
plaint for lack of jurisdiction was renewed by the respondents and was
denied by the Trial Examiner. The ruling is hereby affirmed.
On June 10, 1937, the second day of the hearing, the Trial Examiner
allowed the -complaint to be amended to include allegations of the
discriminatory discharge of Stephen' L. Solosy, without objection by
the respondents other than their general reservation of objections to
the jurisdiction of the Board. On June 14, 1937, the respondents
filed a verified answer, in which they reserved their objections to the
jurisdiction of the Board and in substance denied engaging in the
74 NATIONAL LABOR RELATIONS BOARD
unfair labor practices alleged in the complaint, setting forth in
addition affirmative allegations in defense thereof.
Upon the completion of the presentation of the Board's case on
June 24, 1937, counsel for the respondents requested an adjournment
until July 6, 1937, to enable him adequately to prepare and present
the respondents' case, and in particular to secure the testimony of
Floyd L. Carlisle and Harold Dean, the testimony of both of whom
was asserted to be indispensable. It was shown that Carlisle, who
was chairman of the board of trustees of Consolidated Edison Com-
pany of New York, Inc., and had been in charge of the respondents'
labor policies and negotiations, was in France attending a meeting
of the World Power Conference and would return to New York City
on July 5, 1937; and that Dean, who was vice-president of New York
and Queens Electric Light and Power Company and in charge of the
execution of the policies of that company which resulted in the alleged
discriminatory discharges of five of the persons named in the com-
plaint, was in Milwaukee attending the annual conference of the
American Institute of Electrical Engineers and was thus unavailable
as a witness at that time. The only reason offered for not calling.
other witnesses at the close of the Board's case was that the Board
had completed the presentation of its case sooner than was anticipated
by the respondents. The Trial Examiner granted an adjournment
until July 6, 1937, for the purpose of receiving the testimony of
Carlisle only, and reserved until that time decision on the question
whether the testimony of Dean and other witnesses would be taken
when the hearing was resumed on July 6, 1937. The Trial Exam-
iner granted permission to the respondents to present the matter of
taking the testimony of witnesses other than Carlisle on July 6,
1937, directly to the Board in the meantime. This was done by the
respondents in a letter to the Board, dated June 28, 1937. The
Board replied in a letter, dated July 2, 1937, stating that it would
permit both Carlisle and Dean to testify on July 6, 1937, but would
not permit any other witnesses to testify, on the ground that such other
witnesses should have been produced on the completion of the pres-
entation of the Board's case on June 24, 1937. After the testimony
of Carlisle and Dean had been received on July 6, 1937, counsel for
the respondents called a witness to testify concerning the alleged
discriminatory discharge of Stephen L. Solosy. The Trial Exam-
iner refused to allow the witness to testify. The respondents duly
excepted to the ruling of the Trial Examiner. The Trial Examiner,
however, allowed the respondents to introduce into the record an
offer of proof concerning the alleged discriminatory discharge of
Stephen L. Solosy.
After the close of the Board's case, counsel for the Board moved
to conform the complaint to the evidence. The Trial Examiner de-
DECISIONS AND ORDERS 75
vied the motion in so far as it was directed to bringing within the
allegations of the complaint the discriminatory discharge of Philemon
Ewing, who was not named in the complaint, but concerning whose
dlischarge testimony had been received; but in other respects ' the
motion was granted. The ruling is-hereby affirmed. At the same
time the Trial Examiner granted the respondents' motion to amend
its answer to include as a separate defense allegations that certain
contracts executed by the respondents and certain locals of the I. B.
E. W. as of June 15, 1937, after the commencement of the hearing,
had rendered moot any controversy raised by the complaint.
The parties' did not avail themselves of the opportunity afforded
for argument at the close of the hearing, but thereafter the respond-
,ents filed a brief.
By order of the Board, dated September 29, 1937, the proceeding
was transferred to and continued before the Board in accordance
with Article II, Section 27, of National Labor Relations Board Rules
and Regulations-Series 1, as amended.
During the course of the hearing the Trial Examiner made a num-
ber of rulings on motions, and on objections to the admission of evi-
dence. The Board has reviewed the rulings of the Trial, Examiner
and finds that no prejudicial errors were committed. The-rulings
are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE RESPONDENTS AND THEIR BUSINESSES
A. Incorporation and nature of business
Consolidated Edison Company of New York, Inc., Brooklyn Edi-
son Company, Inc., and New York and Queens Electric Light and
Power Company are New York public utility corporations, having
their principal offices and places of business in New York City.
They are engaged in the business of supplying electric energy to con-
sumers situated within the Boroughs of Manhattan, The Bronx, and
Brooklyn, and a part of the Borough of Queens, within the City of
New York. Consolidated Edison Company of New York, Inc. is
engaged also in the business (a) of supplying gas to consumers situ-
ated in the Boroughs of Manhattan and The Bronx, and a part of
the Borough of Queens, and (b) in selling to manufacturers and
jobbers in New York City for commercial purposes certain by-prod-
ucts incidental to its manufacture of gas, namely, coke, coke breeze,
tar, light oils, and sulphate ammonia. Consolidated Edison Com-
pany of New York, Inc., besides being an operating utility company
is also a holding company, owning controlling stock interests, as de-
scribed below, in the other respondents herein. Westchester Lighting
76 NATIONAL LABOR RELATIONS BOARD
Company and The Yonkers Electric Light and Power Company are
New York public utility corporations, having their principal office
and place of business in Mount Vernon, New York. The former
company is engaged in the business of supplying electricity and gas
to consumers situated in Westchester County, New York, except the
city of Yonkers; and the latter company is engaged in the business of
supplying electricity to consumers situated in the City of Yonkers,.
Westchester County, New York. New York Steam Corporation, a
.New York public utility corporation having its principal office and
place of business in New York City, is engaged in the business of sup-
plying steam to consumers situated within a part of the Borough of
Manhattan. Consolidated Telegraph and Electrical Subway Com-
pany, a New York corporation having its principal office. and place
of business in New York City, is engaged in the business of con-
structing, equipping, maintaining, and. operating, under contracts
with the City of New York, underground ducts or conduits for the
reception of electrical conductors (other than telegraphic and tele-
phone conductors) in the Boroughs of Manhattan and The Bronx.
Consolidated Edison Company of New York, Inc., and Westchester
Lighting Company occupy space in such ducts and pay rent for the
space so occupied.
B. Stock ownership
Consolidated Edison Company of New York, Inc., conducts the.
electric business, formerly conducted by The New York Edison Com-
pany, Inc., (including that of the latter's predecessors, The New
York Edison Company and The United Electric Light and Power
Company) and by Bronx Gas and Electric Company, merged into,
Consolidated Edison Company of New York, Inc., in 1936; also the,
gas business formerly conducted by it under the name of Consoli-
dated Gas Company of New York and that conducted by various.
gas companies in the Boroughs of Manhattan and The Bronx and
part of the Borough of Queens, merged in 1936 into Consolidated
Edison Company of New York, Inc. The latter company owns more
than 90 percent of all the outstanding voting stock of each of its,
affiliated companies named as respondents herein.
C. Unitary and integrated System '
The respondents are commonly referred to as the Consolidated
Edison Company group of companies or the Consolidated Edison
Company System. They constitute and are operated as a unitary
and integrated, system.
System management. A majority of the board of directors of
each of the respondents, other than Consolidated Edison Company
of New York, Inc., is made up of trustees or officers of the latter
DECISIONS AND ORDERS 77
company. Each of the respondents has executive and operating offi-
cers and employees who are not officers of Consolidated Edison Com-
pany of New York, Inc., but who take part, with the trustees and
officers of the latter company, in the discussion and determination
of the major and general policies of the respondents. The major
labor policies, among others, of the respondents are thus discussed
and determined, but are locally administered and applied by the
board of directors and executive officers of each respondent, in a
manner not inconsistent with the general policies as determined by
and for the respondents as a whole.
Unified operations of System. The companies, of the Consoli-
dated Edison Company System have for many years been under a
unified ownership, management, and operation. Thus, the gas op-
erations of the System have for many years been carried on in
accordance with the terms of joint facility arrangements; and the
manufacturing plants, holder-stations, pumping stations, transfer
and distribution lines, and other properties of the various companies
have been and are operated as an interconnected system. Similarly,
the generating facilities of the electric companies in the System have
been and are operated as a unit for the System electric load, through
the medium of a System operator or load dispatcher, to secure the
greatest over-all economy of production consistent with the highest
degree of continuity. Additional electric energy is purchased from
New York Light and Power Company, which is not affiliated with
the respondents, under interchange of power arrangements estab-
lished with that company, in the interests of assuring continuity
of service to the public and as a means of providing for the electric
requirements of the System. New York Steam Corporation has a
connection with one of the- electric generating stations of Consoli-
dated Edison Company of New York, Inc., from which is made
available an additional supply of steam for resale to its customers.
Location of respondents' properties. The respondents' electric
generating stations, sub-stations, gas manufacturing plants, gas
holder-stations, steam generating plants, service buildings, shops,
store-rooms, garages, and similar structures are all maintained and
operated within the State of New York, and principally in New York
City and Westchester County. All transmission and distribution
facilities and equipment owned by the respondents and all other
property owned by the respondents and used in their business are
located in New York City or Westchester County. All meters in use
by any of the respondents are located and are read on the premises of
consumers situated- in New York City and Westchester County; and
all metering apparatus and equipment furnished by the respondents
are similarly located.
78 NATIONAL LABOR RELATIONS BOARD
Exclusiveness of respondents' service. In 1936 the System supplied
97.5 per cent of the total electric energy sold by central station com-
panies in New York City, and practically all of the electric energy
sold by central station companies in Westchester County. It sup-
plied 55.3 per cent of the total gas supplied to consumers in New
York City. It did not supply any gas to consumers in the Boroughs
of Brooklyn and Richmond, and the larger part of the Borough of
Queens. On the other hand, its percentage of the total gas supplied
to consumers in Manhattan and The Bronx is very much greater than
55.3 per cent. Westchester Lighting Company is the only public
utility supplying gas in Westchester County; and New York Steam
Corporation is the only central-station steam utility in New York
City.
Annual production, sales, and employment totals. In 1936, the
System generated and purchased 6,038,989,792 kilowatt hours of elec-
tric energy and sold 5,130,976,460 kilowatt hours. The total revenue
from the sale of electric energy amounted to $180,488,596.19. During
the same period the System produced 39,286,022,000 cubic feet of gas,
and sold 38,016,134,000 cubic feet. The total revenue from the sale of
gas amounted to $41,163,261.69. The total, revenue from the sale of
steam during 1936 was $10,761,341.04. During the same period the
revenue from the sale of coal and oil by-products amounted to $3,485,-
338.01, but such revenue is treated by the respondents as an abatement
of production expenses.
As of April 17, 1937, the respondents employed 42,101 employees.
The total annual pay roll for 1936, including annuities and separation
allowances paid, amounted to $81,891,990.40.
D. Purchase of materials in interstate commerce
Coal and oil. The raw materials used by the respondents in the
production of all their electric energy, gas, and steam are coal and
gas-oil. In 1936 the respondents purchased 4,975,452 tons of coal at
a cost of $23,224,761, and purchased 114,370,343 gallons of oil. All the
coal was mined outside the State of New York and transported from
points outside the State of New York to the plants of the respondents
by rail and barge or by rail and steamship. All the oil is produced
at wells and refineries outside the State of New York and transported
in barges from points outside the State of New York to the respond-
ents' gas plants in New York City. The respondents do not own or
operate any ships, barges, tugs, or freight cars for the transportation
of gas and oil from their points of origin outside the State of New
York to the respondents' stations or storage yards. The respondents
maintain unloading and coal conveying equipment at their stations or
storage yards and the respondents' employees unload the coal from
DECISIONS AND ORDERS 79
the boats. The shipment of coal and oil to the respondents is prac-
tically continuous throughout the year.
Copper. In 1936 the respondents purchased $53,160 worth of cop-
per for electrical construction and operation. The copper is mined
outside the State of New York and a substantial portion thereof is
purchased from concerns situated outside the State of New York.
Cable. In 1936 the respondents purchased $4,659,840 worth of cable,
of which .approximately 30 per cent came from factories situated
outside the State of New York.
Other materials and equipment. In 1936 the respondents purchased
substantial quantities of other materials, equipment, and supplies,
including distribution and power transformers, switches, steel pipe,
concrete, cement, electric meters, gas meters, poles, incandescent lamps,
and similar items. Part of these items were purchased from concerns
situated outside the State of New York, and part from dealers within
the State of New York.
E. Dependence o l particular consumers on electric energy and gas
supplied by the respondents
The written stipulation for the determination of the question of
jurisdiction entered into by counsel for the Board and counsel for the
respondents sets forth data concerning a number of particular con-
sumers which show the dependence on the electric energy and gas
supplied by the respondents of various types of important businesses
engaged in interstate and foreign commerce and communication and
the disastrous effect on such commerce and communication that would
result from a cessation of the flow of power from the respondents,
such as would tend to accompany a labor dispute between the re-
spondents and their employees.
Railroads.-The respondents supply electric energy to the New
York Central Railroad, an interstate railroad. The electricity is
used by the Railroad Company in part for the lighting and opera-
tion of the Grand Central Terminal, a terminal for interstate and
intrastate trains operated by the Railroad Company, in part for the
lighting and operation of various structures on 'terminal lands, and
in part for the electric operation of both intrastate and interstate
passenger trains from Harmon, New York, to the Grand Central
Terminal and from the Grand Central Terminal to Harmon, New
York. No steam-propelled passenger trains ordinarily operate be-
tween the Grand Central Terminal and Harmon, New York. Elec-
tricity supplied by the respondents is also used for the air-condition-
ing of Pullman cars attached to interstate trains in the yards of the
Railroad Company in New York City. In 1936 the Railroad Com-
pany purchased front the respondents 145,593,421 kilowatt hours for
80 NATIONAL LABOR RELATIONS BOARD
all purposes. The respondents deliver all of the electric energy to
the Railroad Company at designated locations in the State of New
York.
The respondents also supply electric energy to the New York, New
Haven, and Hartford Railroad Company, an interstate railroad,
which utilizes it for the operations of its freight terminals for both
interstate and intrastate trains, and for the operation of passenger
trains in- and out of Grand Central Terminal, many of which trains
operate on interstate runs. The total electric energy supplied to the
New Haven Railroad in 1936 was 58,793,983 kilowatt hours and was
delivered at designated locations in the State of New York.
The respondents also supply electric energy to the Hudson and
Manhattan Railroad Company, which utilizes it for the lighting and
operation of its terminal buildings, for the operation of a rapid
transit railroad which runs for a distance in New York City and
thence by tunnel to Jersey City and Hoboken, New Jersey, and for
the operation of an interurban railroad from its terminal in New
York City through the tunnel under the North River to Jersey City
and Newark, New Jersey. The total electrical energy supplied to
this Railroad Company in 1936 was 57,221,097 kilowatt hours and was
delivered at designated locations in the State of New York.
The respondents also supply electric energy to the Lehigh Valley
Railroad Terminal in New York City for the operation of its inter-
state railroad terminal.
Steam service supplied by New York Steam Corporation, a re-
spondent herein, is used to operate compressors, for the operation of
switches in the interstate railroad tunnel of the Pennsylvania Rail-
road Company under the North River.
Navigation in New York harbor. The respondents supply electric
energy to the Federal Government for the operation in New York
harbor of six lighthouses, 8 beacon or harbor lights, the United States
Barge office, the United States Customs Houses, various warehouses,
and Governor's Island. They also supply electricity to the City of
New York for the operation of devices used as aids to navigation,
namely, lights on various bridges and on the ends of various piers
and docks. The respondents also supply electric energy to a majority
of the piers of trans-Atlantic and coastal steamship companies, along
the East River and the North River, for lighting, freight-handling,
and related uses. They also supply electricity to the Port of New
York Authority for the operation of its terminal; the Holland Tun-
nel, an interstate vehicular tunnel under the Hudson River, and the
other projects under its supervision.
Ferries. The respondents supply electricity to various ferry slips
from which steam-propelled ferries operate on the Hudson River
between New York and New Jersey. The electricity is used in the
DECISIONS AND ORDERS 81 1,1 ^
operation of waiting rooms, ticket offices, signs, and approaches.
They also supply electricity, under contract with the Federal Gov-
ernment, to ferry slips from which ferries operate in waters other
than the Hudson River.
United States post-ogees. The respondents supply electric energy
to the Federal Government for the operation of its General Post Office
in New York City and some 132 branch post-offices in New York City
and Westchester County. The electricity is used for operating pneu-
matic tubes between postal stations, equipment in stations, including
conveyor belts, elevators, ventilators, and similar equipment. Postal
operations are conducted on a 24-hour basis.
Telegraph. The respondents supply electric energy to the Western
Union Telegraph Company and its some 210 branch offices in New
York City and Westchester County, and to the Postal Telegraph
Company and its some 140 branch offices in New York City and
Westchester County. The electricity is used- for general lighting and
power purposes and for the operation of apparatus used in the trans-
mitting and receiving of telegraphic messages, both local and inter-
state.
Telephone. The respondents supply electric energy to the New
York Telephone Company for the operation of its various buildings,
offices, and exchanges in New York City and Westchester County.
The electricity is used to operate the equipment utilized in the trans-
mitting and receiving of interstate and local communications.
Radio. The respondents supply electric energy to RCA Communi-
cations, Inc., a subsidiary of Radio Corporation of America, wliich,
among other uses, is used to operate the switchboards for its trans-
Atlantic radio service. Similarly, the respondents supply electric
energy to-Columbia Broadcasting System, Inc., and to its subsidiary,
Atlantic Broadcasting Company, for the purpose, among others, of
operating equipment which broadcasts to other states as well as the
'State of New York.
Airports. The respondents supply electric energy to the Floyd
Bennett Air Field, for such purposes as building lighting, field
illumination, the operation of a radio beam, obstruction lighting, and
the operation of hangar machine shops.
Newspapers. The respondents supply electric energy to the New
York Times Company for the operation of all the power equipment
in the printing plant and for general lighting purposes. The news-
papers printed and published by this company are circulated
throughout the world.
Dow-Jones tickers. The respondents supply electric energy to
Dow-Jones and Company, Inc., for the operation of its financial news
ticker service.
82 NATIONAL LABOR RELATIONS BOARD
New York Stock Exchange. The respondents supply electric
energy to the New York Stock Exchange Building Company, and a
related concern, Stock Exchange Building Company, located in the
same premises, for light and power in the operation of the Stock
Exchange and of the Stock Exchange ticker system for the sending
out of stock quotations and transactions. Through this system stock
exchange quotations are made instantly available throughout the
country by telegraph.
F. Relation to commerce
On January 15, 1936, an interruption of the alternating current
service in parts of the Boroughs of Manhattan and The Bronx was
produced by a short circuit in the respondents' Hell Gate generating
station. Service to some 40,000 customers, out of about 2,000,000
electric customers of the respondents, involving about ten per cent
of the load, was affected. Although other generating plants of the
System took over the load from such units at the Hell Gate station
as were affected by the short circuit, several telephone exchanges and
branch post offices, and various industrial and commercial concerns
in the area affected, experienced a partial or total interruption of
electric service, as the restoration of service required considerable
work in the streets, on transformers, and on consumers' premises
(fuses, motors, etc.) to repair the effects of the impact of the short
circuit on the distribution lines in the area affected, as well as work
in the electrical galleries at Hell Gate.
This incident coupled with the fact that the respondents supply
97.5 per cent of the total electric energy sold in New York City by
central station companies and the respondents' contention at the hear-
ing and in their brief that the operations of the System could easily
be endangered and seriously dislocated by a single one, of certain of
its employees, is indicative of the effect which a labor dispute between
the respondents and their employees might have upon the opera-
tions of the respondents and the multitude of businesses whose opera-
tions are dependent on them for electric energy.
It thus becomes evident from all the above findings (1) that the
respondents receive vast quantities of coal and oil and quantities of
copper, cable, and other commodities in interstate commerce; (2) that
the highly industrial and commercial area of New York City and
Westchester County, the former the largest shipping, transportation,
and commercial center in the United States, is almost entirely de-
pendent on the respondents as a commercial source of electric energy
and steam, while the Boroughs of Manhattan and The Bronx, a part.
of the Borough of Queens, and Westchester County are almost en-
tirely dependent on the respondents for gas; (3) that a labor dispute
DECISIONS AND ORDERS 83
between the respondents and their employees interrupting the re-
spondents' operations would seriously affect the flow of vast quan-
tities of coal and gas-oil, and quantities of copper, cable and other
commodities, in interstate commerce; (4) that a cessation of the flow
of power from the respondents, such as would tend to accompany a
labor dispute between the respondents and their employees, (a) would
in a short time paralyze the operations of many of the instrumentali-
ties of interstate and foreign commerce and communication in and
around New York City, and thereby also paralyze the operations of
most of the businesses situated in the area served by the respondents
and engaged in shipping and receiving commodities in interstate and
foreign commerce, and would curtail the United States mail service,
including mail carried in interstate and foreign commerce, and (b)
would directly cause the cessation or curtailment of the operations of
the businesses served with power by the respondents and engaged in
shipping and receiving commodities in interstate or foreign commerce.
Expressed concisely, a labor dispute between the respondents and
their employees interrupting the respondents' operations would not
only affect the flow of the large quantities of coal and oil which they
receive in interstate commerce, but might be substantially equivalent
to the effect on interstate and foreign commerce and communication
which would be caused by simultaneous labor disputes in the re-
spondents' business and in all the businesses served by the respondents
that are engaged in operating the instrumentalities of interstate and
foreign commerce and communication and all the businesses engaged
in shipping and receiving commodities in interstate or foreign com-
merce.
II. THE UNITED ELECTRICAL AND RADIO WORKERS OF AMERICA
The United Electrical and Radio `Yorkers of America, which has
filed the charge upon which the complaint herein is founded, is a
labor organization affiliated with the Committee for Industrial
Organization. It admits to membership the employees of the
whole electrical and radio industry in the United States. Local No.
1212 of the United admits to membership only employees of the
respondents.
III. THE UNFAIR LABOR PRACTICES
A. Background of labor organization among the respondents'
employees
In the latter part of 1933 and the early part of 1934 organizations
known as Employees' Representation Plans, herein called the Plans,
were established with the assistance of the respondents among the
employees of each of the respondents and of each of the companies
84 NATIONAL LABOR RELATIONS BOARD
which were merged in 1936 into Consolidated Edison Company of
New York, Inc. The Plans appear to have been formed as a means
of purported compliance with the National Industrial Recovery Act
and the codes adopted thereunder for the power industry.
There is specific oral and documentary evidence concerning the
formation and operation of the Plan among the employees of Bronx
Gas and Electric Company, which was merged in 1936 into Consoli-
dated Edison Company of New York, Inc., and also ample evidence
that the formation and operation of the Plans among the employees
of the various other companies in the respondents' system conformed
to a similar pattern. The following narrative of the establishment
of the Plan among the employees of Bronx Gas and Electric Com-
pany is thus typical of the Plans established at approximately the
same time throughout the companies of the respondents' system, in-
cluding Consolidated Telegraph and Electrical Subway Company.
One day in the latter part of 1933, during working hours, several
employees of Bronx Gas and Electric Company were notified by their
supervisors to report to the president and the vice-president of the
Company. On their arrival they were informed by the president and
the vice-president that they, the employees, had been sent on this mis-
sion by their fellow employees for the purpose of instituting a pro-
cedure for collective bargaining. They were given petitions to circu-
late among the employees for signatures. The petitions bore captions
stating in substance that the subscribers desired to have a poll among
the employees to determine upon the establishment of a means of
collective bargaining. Harold Straub, one of the employees engaged
in procuring signatures, testified that his foreman placed a company
car at his disposal for contacting employees and that he devoted two
full days to the task, for which he was paid his regular salary as a
lineman. After sufficient signatures to the petitions had been ob-
tained, a poll was conducted among the employees on the question
whether they desired the establishment of the Plan, which had been
drafted and distributed by the Company, as a means of collective bar-
gaining. The question having been decided affirmatively, the election
of officers was held shortly thereafter. Practically all the employees
became members of the Plan, as it was the current sentiment that
such action accorded with the desire of the Company. The Company
bore the expense of conducting the poll and the election and paid for,
the printing of the petitions, circulars, and copies of the constitution
and by-laws of the Plan and for the time devoted to the Plan by
sundry employees.
The constitution and by-laws of the Plan stated that its purpose
was "to provide means by which employees of the Company, through
representatives of their own choosing, may deal collectively with
DECISIONS AND ORDERS 85
the management of the Company" and that "collective bargaining
under this Plan may relate to wages, hours of labor, working condi-
tions, health, safety, education, recreation, and like matters affecting
employment, together with the adjustment of grievances arising out
of the relations of Employees with the Management". Membership
was restricted to employees, and was to cease with termination of
employment. There were no dues. The Plan divided the Company
into a number of -departments and provided for a department coun-
cil and a general. council. The former consisted of representatives
elected by the employees in each department, in the proportion of
one representative for every 50 members of the Plan in the depart-
ment. The general council consisted of the chairmen of the depart-
ment councils. In the larger companies of the respondents' system,
there were also bureau councils, bureaus being subdivisions of de-
partments. In voting each member of the general council was
entitled to cast one vote for each member of the Plan represented by
him.
Similar Plans were established in all the Companies of the re-
spondents' system and in a substantially similar fashion. The
respondents bore the expenses of all the meetings and elections, both
of which took place on Company time and property, of clerical and
stenographic services, printing, and of the entire functioning of the.
Plans. The members of the general and department councils were
paid their regular salaries by the respondents for all time devoted to
Plan affairs. The chairmen of the general councils devoted most of
their time to Plan work, and in the larger companies both the chair-
man and the secretary devoted their full time to such work, occupying
offices in the respondents' premises, equipped with desks and pro-
vided with stenographic service. The chairmen of the general coun--
cils and, in the larger companies, the secretary also, were allowed
expense accounts which were paid by the respondents as routine
matters upon vouchers signed by department heads.
On several occasions meetings of the chairmen of all the genera]'
councils were called by the respondents for the purpose of impart-
ing information to be reported to their constituents, but never for
the purpose of bargaining collectively as a unit. Thus in July 1936,
Carlisle, chairman of the board of trustees of Consolidated Edison
Company of New York, Inc., and member of the board of directors-
of each of the respondents herein, called such a meeting to inform
it of the restoration of a. former pay reduction and, in December-
1936, to inform it that there would be no Christmas bonus as had been
rumored.
In the early part of 1934, approximately coincidental with the-
establishment of the Plans, there was formed a labor organization
among the employees of the respondents, known as the Brotherhood'
86 NATIONAL LABOR RELATIONS BOARD
of Utility Employees, herein called the Independent Brotherhood.
It was a national organization, but certain of its locals limited their
membership exclusively to the respondents' employees. All six em-
ployees named in the amended complaint as having been discrimi-
natorily discharged were members of the Independent Brotherhood,
while several of them were organizers of Local No. 103, which had
jurisdiction of the employees of New York and Queens Light and
Power Company. All six were also members of the Plans and at
least one was for a time an officer of the Plan at New York and Queens
Light and Power Company. In 1935 certain of these six employees,
as stated hereinafter, formulated a petition of grievances, dealing
principally with wage increases, for presentation to the management
of New York and Queens Electric Light and Power Company. After
overcoming the reluctance of the general council, it was finally pre-
sented to the management, but nothing was done concerning A. Dur-
ing the same period the Plan members of one of the departments of
Consolidated Gas Company, Inc., set up a committee, headed by two
members of the Independent Brotherhood, to investigate the Plan
with respect to company domination and pursuant to its mandate
the committee filed monthly reports of company domination. Con-
vinced that the Plans were dominated by the respondents, the Inde-
pendent Brotherhood issued and distributed magazines, pamphlets,
circulars, and leaflets attacking the Plans as company-dominated
unions. Representatives of the Independent Brotherhood also at-
tended all the hearings before the New York Public Service Commis-
sion, involving such matters as rates, and claimed an interest therein
by reason of their representation of respondents' employees.
Failure to achieve any success as an independent organization in-
duced the several locals of the Independent Brotherhood in March
1936 to consolidate and affiliate with the I. B. E. W. as one local,
Local No. B-752. In March 1937 the members of Local No. B-752
voted to affiliate with the United and thereupon one local, Local
No. 1212, was chartered with jurisdiction over only employees of the
respondents. All the members of Local B-752 became members of
the United Local No. 1212. Local No. B-752 was thereupon sus-
peiided by the I. B. E. W. In April 1937 the United announced
the formation of a utility division and commenced a vigorous
campaign to organize the respondents' employees.
At this juncture the respondents instituted a campaign to procure
signatures of employees to cards designating their desire for the con-
tinuance of the Plans. This campaign was interrupted by the de-
cisions of the United States Supreme Court sustaining the validity
of the National Labor Relations Act, for thereupon the respondents
discontinued their campaign and abruptly altered their labor policy,
as described below.
DECISIONS AND ORDERS 87
B. Events between April M, 197, and the date of execution of
contracts with the I. B. E. TV.
After the United States Supreme Court on April 12, 1937, rendered
the decisions sustaining the validity of the National Labor Relations
Act, Carlisle, who was in charge of the respondents' labor policy, had
two conferences concerning the recognition of the I. B. E. W. with
D. W. Tracy, the International president of the I. B. E. W. On
April 16, 1937, Tracy dispatched a letter to Carlisle demanding recog-
nition of the I. B. E. W., accompanied by a proposed contract pro-
viding for recognition of the I. B. E. W. as the representative of its
members, a five per cent increase in wages, and a procedure for set-
tling grievances which outlawed strikes and lockouts. On the morn-
ing of April 20, 1937, Carlisle called a convention in the board room
of Consolidated Edison Company of New York, Inc., of the members
of all the general councils of all the Plans, at which he announced
that in view of the decisions of the United States Supreme Court
a continuance of the Plans with the financial support of the respond-
ents would constitute a violation of the spirit of the National Labor
Relations Act, and more particularly, of the provisions of the Doyle-
Neustein Bill, which he termed a little Wagner Act, which was then
pending in the Legislature of the State of New York and appeared
almost certain of enactment. He informed them that therefore he
intended to recognize the I. B. E. W. In response to questions from
the floor, Carlisle declared that employees were free to join any labor
organization, but that the respondents intended to recognize the
I. B. E. W. Various comments from the floor indicated that the
Plan representatives considered the sudden recognition of the I. B.
E. W. as a means of coercing them into transferring their allegiance
to the I. B. E. W. Carlisle refused the request of several Plan repre-
sentatives for a delay of the recognition of the I. B. E. W. until the
employees had had an opportunity to discuss the matter.
Harold Straub, chairman of the general council of the Plan at
Bronx Gas and Electric Company asked Carlisle whether it was not
true that he had hitherto considered unions as unnecessary evils, but
now, in view of the United States Supreme Court decisions and the
pending Doyle-Neustein Bill, as necessary evils, and as between the
I. B. E. W. and the United he preferred that the employees join the
I. B. E. W. Carlisle said that this was a very apt statement of his
po-ition. Straub testified that Carlisle stated to him also that lie
thought that the Labor Relations Board of the State of New York
would be composed preponderantly of men in sympathy %vith the
American Federation of Labor and hence that it was the part of
wisdom to recognize the I. B. E. W. When Carlisle, himself, testi-
fied, he was not specifically questioned on direct examination concern-
67573-38-vol iv--7
88 NATIONAL LABOR RELATIONS BOARD
ing Straub's testimony on these particular points. Straub also asked
Carlisle why recognition was being accorded the I. B. E. W. when its
membership among the respondents' employees was negligible. Car-
lisle replied that the I. B. E. W. had some members and would soon
have a great many more. Carlisle, himself, testified that at the time
he recognized the I. B. E. W. he knew that its organization among the
respondents' employees was incomplete and that the formation of
locals and the procurement of membership was to follow recognition
and that when that was accomplished contracts with the various locals
would be executed. He also testified that at this time he knew that
the members of Local B-752 had transferred their allegiance to the
United which had commenced a vigorous campaign for membership.
It is quite clear that recognition of the I. B. E. W. under these circum-
stances was intended as a blow to the United, as an aid to the
I. B. E. W., and as a strong indication to the employees of the union
favored by the respondents.
After Carlisle left the conference he dispatched a letter to Tracy
recognizing the I. B. E. W. along the lines of the proposed contract.
News of this letter appeared in the early afternoon papers, which led
many of the Plan representatives to believe that he had formally recog-
nized the I. B. E. W. even -before he had called the conference of
general councilmen. The conference continued for a time after Car-
lisle's departure, and speeches were made characterizing recognition of
the I. B. E. W. as a design to force the employees into the I. B. E. W.
Upon the adjournment of the conference, the general councilmen pro-
ceeded to a meeting of the general council of Consolidated Edison
Company of New York, Inc., where the chairman narrated the above
events. The general opinion of this meeting also was that recognition
of the I. B. E. W. was intended to force membership in the I. B. E. W.
On the afternoon of the same day, Straub called on Colonel Still-
well, vice-president of Consolidated Edison of New York, Inc., with
whom Straub, as chairman of the general council of the Plan at
Bronx Gas and Electric Company, had discussed Plan matter; since
the merger of the latter company in 1936 into Consolidated Edison
Company of New York, Inc. Stillwell said that recognition of the
1. B. E. W. would be a blow to the Committee for Industrial Organ-
ization, of which the United was an affiliate, and was so intended, and
that it would be a wise move for the Plans and the employees to go
over to the I. B. E. W. and obtain control of it. Upon Straub's
request he gave him the name and address of G. M. Bugniazet,
International secretary of the I. B. E. W., with whom he could confer
concerning ways and means of switching the Plan at Bronx Gas and
Electric Company over to the I. B. E. W. The following day Straub
called at the address, but merely discussed the aims and policies of
the I. B. E. W. with a representative of the I. B. E. W. Later that
DECISIONS AND ORDERS 89
same day Straub called a meeting of a number of members of the
Plan at the Bronx Gas and Electric Company and informed them
of his actions. He found among them a strong sentiment for the
United and for an independent union with no outside affiliation, while
several of them complained that their foremen were applying pres-
sure in behalf of the I. B. E. W.
On the following day, April 22, a conference of 400 employees,
mostly members of the various general councils, who, as we have
already indicated, were always free to leave their work for Plan
affairs, was held in the auditorium of Consolidated Edison Company
of New York, Inc., building on Irving Street. Carlisle had been
invited to attend, and while awaiting his arrival the men discussed
the matter. Three views were presented. Some favored the I. B.
E. W., others the United, and others an independent union with no
outside affiliation. A motion for a secret ballot on the question
among those present at the conference was carried. William P. Gan-
ley, co-chairman of the general council of the Plan at Consolidated
Edison Company of New York, Inc., and presiding officer of this
meeting, took no action, however. The meeting was -adjourned to
the company's cafeteria where Ganley read a telegram from Tracy
indicating the manner in which the various Plans could come into
the I. B. E. W. as locals with the Plan officers as officers of the locals.
The meeting growing somewhat restive, a messenger was sent to
summon Carlisle. Upon his arrival Carlisle was subjected to such a
barrage of questions that the procedure was adopted of formulating
three questions which were addressed to Carlisle by Ganley. The
questions and answers were substantially as follows :
Question: Could a vote be taken among the respondents' em-
ployees on the matter?
Answer: If such a vote implied that the respondents would
bear the expenses of the election, it could not.
Question: Would he stop department heads and foremen from
coercing employees into joining the I. B. E. W.?
Answer: Since he had not issued any order to do so, he would
not issue any order to stop.
Question: Why were I. B. E. W. organizers allowed to enter
the plants and solicit employees during working hours while
United organizers were denied that privilege?
Answer: The respondents have never policed their buildings
and did not intend to begin now.
A shout from the floor accusing Carlisle of having "sold 40,000
employees down the river" evoked considerable applause.
Carlisle departed and shortly thereafter, upon adjourning, Ganley
announced that there would be another meeting on the following day
90 ' NATIONAL LABOR RELATIONS BOARD
for the purpose of forming an independent union. A meeting for
such purposes was apparently never held, but a meeting of the general
councilmen of the Plan at Consolidated Edison Company of New
York, Inc., called by Ganley, was held in the board room of the
company. At this meeting, Ganley and a number of Plan officials
decided to see Tracy at the Hotel Roosevelt in New York City.
Tracy informed them that the I. B. E. W. intended to establish seven
locals and that each of the Plans could shift over to the I. B. E. W.
as a corresponding local, retaining Plan officers as officers of the
local. The Plan officials returned to the meeting and 22 general
councilmen signed a petition for an I. B. E. W. charter. They then
went back to Tracy and a local was chartered. Such was the birth of
Local B-829. Thereafter, on May 4, 1937, the 22 signers of the peti-
tion held an election among themselves and elected the officers of the
Plzn to comparable positions in Local B-829.
After Local B-829 was chartered on April 23 the officials and
councilmen of the Plan at Consolidated Edison Company of New
York, Inc., availing themselves to the full of their privileges as Plan
officials to devote full time to Plan affairs, commenced a campaign
for membership in the I. B. E. W. and were paid their regular
salaries by the company. Straub, at first attracted by the idea of
going over to the I. B. E. W., grew lukewarm. In the election of
May 4 he refused a position as an officer in Local B-829, but continued
to assist in procuring members and collecting dues, devoting a large
portion of his working hours to the task and receiving his regular
salary from the company. He was reproached by Ganley, who had
become president of Local B-829, for lack of enthusiasm. Finally,
on May 14, he joined the United.
In his talk with Stillwell on April 20, Straub had asked to be
transferred to a job under different supervisors, but still in his home
area, The Bronx, because in his capacity of chairman of the general
council he had antagonized certain supervisors who, upon the disso-
lution of the Plan, would make it uncomfortable for him. On May
21, 1937, he was transferred to cable-splicing in Manhattan. Upon
inquiry he was informed that the transfer was the result of large
shifts of workmen in the respondents' system. In this fashion, after
he had joined the United and proved himself an obstacle to I. B. E.
11T. organization in The Bronx, he was transferred from his home
area where his influence with the employees was greatest.
The establishment of all the locals of the I. B. E. W. substantially
conformed to the pattern of the establishment of Local B-829, with
most of the officers of the Plans throughout the respondents' system
becoming officers of the corresponding I. B. E. W. locals and continu-
ing to exercise their privileges as Plan officers for several weeks after
the I. B. E. W. locals were chartered, devoting all their working
DECISIONS AND ORDERS . 91
hours to I. B. E. W. organization, using the respondents' offices and
secretarial services, and utilizing the respondents' expense accounts.
During all this time they were paid their regular salaries by the
respondents.
Evidence specifically adduced at the hearing discloses that the re-
spondents pursued additional methods of coercing their employees
into membership in the I. B. E. W. The department heads and fore-
men during working hours solicited employees to join the I. B. E. W.,
and generally assumed the role of I. B. E. W. organizers. The sanc-
tion behind the solicitation was clearly revealed in the accompany-
ing advice and admonitions to the effect that the respondents desired
them to become members of the I. B. E. W. and that sensible em-
ployees would conduct themselves accordingly.
The respondents allowed to I. B. E. W. organizers free access to
all the respondents' buildings and permitted them to solicit employees
individually and in groups during working hours, while similar priv-
ileges were denied to United organizers. I. B. E. W. delegates were
also permitted to collect dues on the respondents' premises. They
availed themselves, for that purpose, of offices of foremen or other
offices or rooms and, in some instances, hung signs upon the doors
bearing the legend "Pay A. F. of L. Dues Here". Later the practice
of hanging up such signs was discontinued and foremen adopted the
practice of telling the employees to go down to some office on the
premises and pay their dues. Similar privileges were denied to the
United.
I. B. E. W. officers remained in the employ of the respondents,
exercising their Plan prerogatives in behalf of the I. B. E. W., for
several weeks, and it was only shortly prior to the execution of the
contracts between the respondents and the I. B. E. W. locals that they
resigned from the respondents' employ to become full time I. B. E. W.
officers paid by the I. B. E. W. Carlisle testified that the respondents
permitted the Plan officers to retain their offices and to exercise their
prerogatives in order to give them an opportunity to wind up their
affairs. It appears from the evidence, however, that the respondents
knew that the Plan officers had shifted over to the I. B. E. W. and
had utilized their Plan prerogatives in behalf of the I. B. E. W.
Moreover, it is clear that the respondents had intended as 'much.
Carlisle also testified that he had given no orders to the respondents'
department heads and foremen to act in behalf of the I. B. E. W.
Express orders,, however, were unnecessary as the respondents' posi-
tion had been made abundantly clear, with the result that their super-
visors took the steps appropriate for its attainment.
The evidence reveals the delineations of the respondents' design to
dictate to their employees the choice of their bargaining representa-
tive. The first step was to favor the I. B. E. W. by according it
92 . NATIONAL LABOR RELATIONS BOARD
recognition at a time when its membership was negligible and its
organization hardly commenced and when the respondents knew that
the United was the only active labor organization among its em-
ployees. The next step was to deliver over the Plan organizations to
the I. B. E. W. by making the respondents' position in the matter
clear to the Plan representatives. Then followed the organizational
drive in behalf of the I. B. E. W. by department heads, foremen, and
Plan representatives, leading up to the stage of organization con-
templated by Carlisle and Tracy as sufficient to justify the execution
of contracts.
C. Execution of the contracts with the I. B. E. W. locals
After the I. B. E. W. had established its seven locals and had
procured a membership therein, the respondents, in the period be-
tween May 28 and June 16, the latter date being subsequent to the
commencement of the hearing, entered into seven substantially similar
contracts with the seven I. B. E. W. locals.2 The contracts con-
formed in most respects to the proposed contract which accompanied
Tracy's demand for recognition on April,.16. The contracts in terms
recognized the I. B. E. W. as the representative of its members and
were applicable only to such members.3 The contracts also provided
for certain wage increases and a procedure for settling grievances
which outlawed strikes and lockouts, and prohibited discrimination
The contracts were executed on the following dates :
1. June 15, 1937-Contract between Consolidated Edison Company of New York,
Inc, and Local No. B-830, applicable to gas workers. Respondents' Exhibit
No 17.
2. June 15, 1937-Contract between Consolidated Edison Company of New York,
Inc, and Local No. B-829, applicable to electric workers Respondents'
Exhibit No 18.
3. May 28, 1937-Contract between Brooklyn Edison Company, Inc., and Local
No. B-825 Respondents' Exhibit No. 19
4. June 1, 1937-Contract between New York and Queens Electric Light and Power
Company and Local No. B-839. Respondents' Exhibit No. 20.
5. May 28, 1937-Contract between Westchester Lighting Company and The Yonkers
Electric Light and Power Company and Local No B-832 Respondents' Ex-
hibit No. 21.
6. June 16, 1937-Contract between New York Steam Corporation and Local No.
B-826 Respondents' Exhibit No 826
7. The respondents did not introduce into evidence the contract executed between
Consolidated Telegraph and Electrical Subway Company and an I B E W
local, but stated that the contract was substantially similar to the above con-
tracts and executed during the same period.
a
8 Recognition of the I B E W. was accorded by the particular respondent granting
the contract in the first sentence of Article II of each contract, as follows
"The . . Company recognizes the Brotherhood as the collective bargaining agency
for those employees who are members of The Brotherhood "
The statement of the applicability of each contract is contained in Article I thereof,
as follows :
"This agreement shall apply to all employees of the . Company who are
members of the Brotherhood . 1 1
DECISIONS AND ORDERS 93
by the respondents against any employee because of membership in
the I. B . E. W. and coercion by the I. B. E. W . of any employees into
joining the I. B. E. W . or solicitation of membership on the respond-
ents' time and property.
Carlisle testified that he was aware that when recognition was
conferred upon the I. B. E. W . on April 20, 1937 , it had not as yet
completed its organization and that such recognition contemplated
the establishment of locals, with committees of which contracts would
be subsequently executed . He further stated that at the time of the
execution of the contracts he was in possession of no definite informa-
tion -concerning, the 'size of the membership in each local , except
newspaper reports. He admitted that the I. B. E. W . did not discuss
the matter at that time . It was only on July 29, 1937 , after the con-
tracts had been made and the presentation of the Board's case in the
hearing herein completed, that the I . B. E. W. submitted a state-
ment 4 of its membership to him. This consisted merely of a type-
written statement showing the number of eligible employees and the
number of members in each local . The statement indicated that a
majority of the employees eligible for membership in each local were
members of the local, except in the case of Local B -829, to which
were eligible 13,200 electric employees of Consolidated Edison Com-
pany of New York, Inc. This latter exception has particular signifi-
cance in view of Carlisle 's construction of the contracts as exclusive
collective bargaining agreements.
Carlisle testified that the contracts were applicable to all employees
and were exclusive collective bargaining agreements , i. e., that the
respondents would not enter into collective bargaining agreements
with any other labor organizations during the existence of the con-
tracts. He thus in effect admitted that he had recognized and en-
tered into contracts with the I. B. E. W . locals as the exclusive bar-
gaining representatives of the respondents ' employees at a time when
he did not know the , size of their membership and when even as late
as June 29 , Local B-829 did not have a membership of a majority
of the employees within its jurisdiction.
It is clear from the evidence that the contracts were not the result
of unhampered bargaining , but were rather the culmination of a
plan by the respondents to select the I. B. E. W. as the exclusive
representative of the respondents ' employees and at the same time
deal a blow to the United which they opposed. Carlisle's interpre-
tation of the contracts, despite the express limitation of the repre-
sentation of the I. B. E. W. to its own membership, discloses the
force of the blow dealt the United, namely, the denial of the oppor-
tunity to bargain collectively with the respondents during the life of
the contracts.
4 Respondents ' Exhibit No 16.
94 NATIONAL LABOR RELATIONS BOARD
D. Conclusions as to the respondents' relations with the I. B. E. W.
We conclude that after April 12, 1937, the respondents deliberately
embarked upon an unlawful course of conduct, as described above,
which enabled them to impose the I. B. E. W. upon their employees as
their bargaining representative and at the same time discourage
and weaken the United, which they opposed. From the outset the
respondents contemplated the execution of contracts with the I. B.
E. W. locals which would consummate and perpetuate their plainly
illegal course of conduct in interfering with, restraining, and coercing
their employees in the exercise of the rights guaranteed to them under
Section 7 of the Act. It is clear that the granting of the contracts
to the I. B. E. W. by the respondents was a part of the respondents'
unlawful course of conduct and as such constituted an interference
with the rights of their employees to self-organization. The contracts
were executed under such circumstances that they are invalid, not-
withstanding that they are in express terms applicable only to mem-
bers of the I. B. E. W. locals. If the contracts are susceptible of the
construction placed upon them by the respondents, namely, that they
were exclusive collective bargaining agreements, then, a fortiori, they
are invalid.
In order to establish conditions for the exercise of an unfettered
choice of representatives by the respondents' employees, the respond-
ents will be ordered to cease and desist from giving effect to the
contracts with the I. B. E. W. locals, from recognizing the I. B. E. W.
as the exclusive bargaining representative of their employees, and
from their other unlawful conduct; and to post notices that they
will so cease and desist, that their employees are free to join any labor
organization, and that the respondents will bargain collectively with
any labor organization entitled thereto.
E. Employment of industrial spies
The complaint alleges that the respondents had employed and were
employing industrial spies or undercover operatives for the purpose
of disclosing to them the activities of their employees in and on behalf
of labor organizations. The respondents admitted the employment of
detectives, but denied that it was for the purpose of investigating
the union activities of their employees. The respondents asserted
that in any event the employment of detectives did not extend beyond,
November 1936 and that consequently the controversy on this issue
has become moot.
Uncontroverted evidence discloses that the respondents engaged the
detective services of Railway Audit and Inspection Company, herein
called the Inspection Company, from October 1933 through October
1936. The manager of the New York office of the Inspection Com-
pany testified that the services rendered to the respondents included
DECISIONS AND ORDERS 95
investigation of the union activities of the respondents' employees.
Frequently the respondents would send circulars, leaflets, and other
literature to the Inspection Company for investigation by its detec-
tives. Among the various types of literature of this character were
included the circulars and leaflets of the Independent Brotherhood,
some of which contained the names .of the leaders of that organiza-
tion. Detectives of the Inspection Company also covered several of
the meetings and conventions of the Independent Brotherhood
throughout the year 1935. The Inspection Company made reports
of its investigations and delivered them to the respondents.
The manager of the Inspection Company and one of the detectives
who did the investigating, testified that detectives trailed Stephen L.
Solosy, named in the complaint, and Philemon Ewing, both organ-
izers for the Independent Brotherhood in Manhattan, in April 1935.
The detective who trailed Solosy was given a picture of him and told
to trail him, which he did for two days, after which time he was re-
placed by another detective whose report was delivered to the
respondents. Solosy was unaware that he was being shadowed, but
Ewing was exasperated by the ineptitude of the detective who trailed
him and finally turned around and entreated him to perform his duties
with more adroitness. Both Solosy and Ewing were discharged on
January 17, 1936, and as we find below, one of the factors leading to
Solosy's discharge was the report of his activities made by the In-
spection Company. The respondents apparently still have in their
possession the reports of the Inspection Company and so have the
power to utilize them as a basis for future discriminatory action
against their employees.
The respondents' contention that the controversy is moot on this
issue because the evidence does not show that the respondents em-
ployed the Inspection Company for any purposes after November 1,
1936 is without merit. The evidence clearly discloses that the re-
spondents engaged in an unfair labor practice for three years, up to
a time not long prior to the filing of the charge herein. A discon-
tinuance at that time of hiring one outside detective agency for that
purpose is no assurance that the practice may not have been carried
on-by other outside agencies or by the respondents' own employees,
or that the practice will not be resumed in the future. The respond-
ents have not stipulated that they would not engage in this practice,
but on the contrary have from the outset denied the jurisdiction of
the Board to take any action in this proceeding.
F. The discriminatory discharges
1. Wersing, Greulich, and Wagner
The complaint alleged that on November 29, 1935, the respondents
discharged, and thereafter refused to reinstate, Martin A. Wersing,
96 NATIONAL LABOR RELATIONS BOARD
Julius A. Greulich, and Michael A. Wagner, because of union activ-
ities. The answer avers that they were discharged for other reasons.
Since all three men were employed by New York and Queens Electric
Light and Power Company, performed substantially similar work,
were the organizers and officers of Local No. 103 of the Independent
Brotherhood, were discharged at the same time, and were given the
same explanation for their discharge, we will first narrate the em-
ployment history of each of them and then discuss their union activity
and discharges as a group.
Wersing. Wersing began work for the respondents on October 8,
1929, as a second grade clerk at a weekly salary of $22.00. All his
work was performed during the night. After about six months he
was transferred to other night work called "cut in and cut out", which
involved making initial and final bills on consumers' accounts. Two
months thereafter he received the regular two dollar weekly salary
increase which followed upon a satisfactory probationary period. In
1933 he was transferred to day work at the personal request of J.
Smith, a supervisor. Wersing found the work dull and about eight
months later was transferred back to night work. Early in 1935
he filed an application for a day work position in response to a posted
notice that the position was available. The position was obtained
by an employee with less seniority than Wersing. A committee of
the Independent Brotherhood took the matter up with the respond-
ents and were informed that Wersing had filed his application too
late. Subsequently, in May 1935, he was transferred to day work in
the stores accounts division of the auditors' department. Although
he replaced an employee with a first grade clerk rating, his own rating
continued as second grade clerk. He brought this fact to the attention
of his supervisor and later of the personnel bureau, from which he
received a final, unfavorable communication about two weeks before
his discharge.
While Wersing was not an exceptional employee, he performed
his duties competently. When he was employed on night work his
supervisor conferred some responsibility upon him and allotted to
him the instruction of new employees as an additional duty. His
supervisor on the work which he was performing prior to his dis-
charge considered his work satisfactory. At the time of his dis-
charge his weekly salary was $23.00. A general reduction in pay in
1933, which was not fully restored, accounts for the fact that his
salary was less at this time than at an earlier stage of his employment.
Greulich,. Greulich began his employment with the respondents
on October 3, 1929, as a. clerk at a weekly salary of $25.00. He re-
ceived the customary two dollar weekly salary increase after six
months' employment. In 1933 his pay was reduced 81/3 per cent in
conformity with the general pay reduction 'enforced throughout the
DECISIONS AND ORDERS 97
respondents' system. In May 1934, one-half of the pay reduction was
restored. Thereafter his weekly salary was increased to $27.00 as
a result of a reclassification of his position. Ike received an addi-
tional increase in salary subsequently, so that at the time of his
discharge his weekly salary was $28.75.
Greulich, like Wersing, worked in the stores accounts division of
the auditors' department. Greulich devoted a large portion of his
time to writing letters in response to a particular kind of correspond-
ence and was the only one in the division performing that type of
work. He also performed the added task of checking the work of
twelve girls. He was never disciplined or suspended, but, on the
contrary, was commended by his supervisor, at whose request he
undertook to write items for the respondents' magazine.
Wagner. Wagner began his employment with the respondents on
July 23, 1929, as a first grade clerk at a weekly salary of $27.00. Six
months thereafter he received the regular two dollar increase in
salary. In March 1931 he was advanced to the position of accounting
assistant in the fixed capital division of the auditors' department at
a weekly salary of $32.00. His work consisted of preparing the
monthly authorized fixed capital expenditure reports. He was the
only one in the department who performed the work on the figures.
In November 1934, he received an increase of $3.83 in his weekly
salary as a result of a reclassification of his position. At the time
of his discharge his weekly salary was $3,1.50.
Wagner's work was frequently commended by his supervisors.
The respondents admitted and their records show that Wagner was
rated as an exceptionally able and diligent employee.
Their union activity. All three men became members of the na-
tional organization of the Independent Brotherhood in February
1934. Thereafter they organized Local No. 103 among the employees
of New York and Queens Electric Light and Power Company. In
July 1934 Local No. 103 held its first meeting, at which Wersing was
elected acting president and Greulich and Wagner were elected to the
Executive Board. Throughout the year 1934 they were actively engaged
in securing membership and in distributing circulars, leaflets, and a
magazine called "The Tower Man", all issued by the national organi-
zation of the Independent Brotherhood. They became members of
the Plan in April 1934, but Wersing resigned therefrom in December
1934, and Wagner in the early part of 1935. In September 1934 they
formulated a petition of grievances, concerned chiefly with the resto-
ration of the general pay reduction, which was finally presented to
the management by a committee appointed by the general council of
the Plan, after much persuasion by Wersing, Greulich, and Wagner.
They asserted that the restoration in 1934 of one-half of the 81/3 per
98 NATIONAL LABOR RELATIONS BOARD
cent pay reduction was induced by their activity for wage increases.
Thereafter they persistently attacked the Plan as a company-dom-
inated union . In February 1935 Wersing was elected president of
Local No. 103 , Greulich vice -president , and Wagner treasurer. After
their election to these offices they informed their supervisors of that
fact by letter and received either written or oral acknowledgment of
their letters. Thereafter Local No. 103 issued its own leaflets , circu-
lars, pamphlets , and a monthly magazine called "Live Wire", at-
tacking the Plans, listing grievances against the respondents, and
explaining its own aims and policies . A number of articles appearing
therein were over the signatures of Wersing and Greulich who wrote
most of the Local's literature of this character . They also were
actively engaged in soliciting membership by visiting employees at
their homes . All this activity continued throughout 1935, and if
anything , was intensified shortly prior to their discharge.
In March 1935 Wei-sing and Greulich conferred with Harry Snyder,
president of New York and Queens Electric Light and Power Com-
pany, with respect to the assignment ^ of an employee with less sen-
iority to a day work position for which Wersing had applied, as re-
lated above . In August 1935 Wersing became president of the joint.
board composed of representatives from all the Independent Brother-
hood locals in New York City . In the fall of 1935 there were rumors
of impending lay-offs. Local No. 103 and the joint board, under the
guidance of Wei-sing , Greulich, and Wagner, undertook to prevent
the impending lay-offs by appearing at rate hearings before the Pub-
lic Service Commission , by writing to Governor Lehman, Mayor La
Guardia, and Chairman Maltbie of the Public Service Commission.
They also issued a considerable quantity of literature in opposition
to the impending lay-offs.
Just prior to their discharge there appeared in the "Live Wire"
a signed article by Wersing entitled "Turkeys or Lay-offs for Thanks-
giving". About two weeks prior to their discharge Greulich, who
was still a member of the Plan, appeared at a meeting of the Plan
members to distribute Independent Brotherhood literature and was
promptly ushered out by Plan officials . The next day his super-
visor, without especial rancor, informed him that he did not consider
his actions on the preceding day as strictly ethical. On November
15, 1935, a committee composed of Wersing , Greulich, and Wagner,
had a conference with Harold Dean, vice-president and general man-
ager of New York and Queens Electric Light and Power Company,
concerning the discharge of James Mannix, an active member of the
Independent Brotherhood . They were satisfied with the reasons
given for his discharge and did not press the matter further. Dean,
however, expressed a strong antipathy to the presumption of the
DECISIONS AND ORDERS 99
committee in attempting to interfere with the exercise of his discre-
tion to discharge employees.
Thus immediately preceding their discharge their union activity
had become intensified, while the chief result of their interview on
November 15 with Dean, who was in charge of the execution of the
respondents' labor policy at New York and Queens Electric Light
and Power Company, was the likelihood that the memory of a dis-
agreeable episode would linger in Dean's mind.
Their discharges. All three men were discharged on November 29,
1935, without notice, but receiving two weeks' pay in lieu of notice.
Wersing and Greulich, who both worked in the stores account division
of the auditors' department, were notified of their discharge at the
same time by their supervisor, who told them to see Mr. Payne in
the Personnel Bureau. When they arrived in Payne's outer office
the next morning, they saw Wagner leaving Payne's office. Wersing
and Greulich had separate interviews with Payne. The accounts of
all three men of their interviews with Payne are substantially the
same. Payne informed them that they were being laid off because
the respondents were discontinuing a department and that it- was
necessary to absorb a portion of the employees employed in that
department into other departments. He stated that married men
were being given preference over single men and that since all three
of them were single their turn to be laid off had arrived. Each of
the three men pointed out that other single men and girls Nviih less
seniority were retained, and requested an explanation. Payne was
unable to explain this fact. The respondents have not requested any
of the three men to return to their employment.
The respondents maintain that the three men were laid off for the
following reason. The inventory department was engaged in com-
piling reports required by the Public Service Commission. A substan-
tial number of the employees in that department were transferees
from other departments. The department had grown into a body
of 300 employees. In 1935 the Public Service Commission's require-
nients as to reports were so greatly reduced that the respondents
found it necessary to discontinue or substantially reduce the depart-
nieut. In transferring employees from the inventory department
back to other departments the respondents adopted the standard
of favoring married men as against single men, all other things being
equal. It was asserted that the discharge of the three men was the
consequence of the application of this standard.
The respondents' contention that the inventory department was
being reduced and transfers of employees made to other departments,
thereby causing lay-offs of employees in such other departments, is
supported by the evidence. In August 1935, 25 employees were laid
100 NATIONAL LABOR RELATIONS BOARD
off as a consequence of the application of this policy, but no employees
were laid off in the auditors' department. On November 29, 1935, the
three employees were the only employees laid off in their respective
divisions. Dean, in his testimony, did not explain why certain single
employees with less seniority were retained, except for the general
statement that the department heads in the exercise of their judgment,
determined that a number of single employees with less seniority
than these three men were more deserving of retention in their jobs
because of special qualifications. Such an explanation, however, is
unsatisfactory in the case of Wagner, at least. According to the
respondents' own records he was regarded as an exceptionally able
and diligent employee. In the application of the respondents' stand-
ard of preference to married men, other things being equal, Wagner'
would certainly not be the first and only man in his division to be
laid off. Since he was laid off at the same time as Wersing and
Greulich, his fellow officers in the Independent Brotherhood, a find-
ing that he was discharged for union activity would be strong evidence
that the other two men were discharged for the same reason.
It is significant that by the discharge of these three employees the
respondents eliminated from their employ all the officers of Local No.
103 at a time when their union activities were beginning to prove
troublesome to the respondents. Dean's explanation for their dis-
charge, particularly the discharge of Wagner, is inadequate and not
persuasive, in the face of the retention of a number of single men and
girls with less seniority in their divisions, and an even larger number
in their department. The evidence indicates rather that the respond-
ents unfairly utilized the lay-offs consequent upon the discontinuance
of the inventory department as a means of discharging the three
officers of the Independent Brotherhood, whom they wished to elimi-
nate from their employ because of their union activity.
We find that Wersing, Greulich, and Wagner were in fact dis-
charged because of their activities in the Independent Brotherhood.
The respondents thereby discriminated in regard to hire and tenure
of employment in order to discourage membership in a labor organ-
ization, and interfered with, restrained, and coerced their employees
in the exercise of the rights guaranteed in Section 7 of the Act.
Since his discharge Wersing has devoted all his time to union
affairs, and all his earnings from that time until the date of the
hearing have been as a union officer. At the time of the hearing he
was president of the United Local No. 1212 and chairman of the
field representatives of the utilities division of the United. Greulich-
has been employed since March 1936, by the Federal Writers' Project.
Wagner was out of employment until May 13, 1937, when he secured
employment with a laundry company at a weekly salary of $17.00.
DECISIONS AND ORDERS 101
All three men desire their jobs back. We find that Wersing, Greulich,
and Wagner have not, since their discharge, obtained any other regu-
lar and substantially equivalent employment.
2. Kennedy and Emler
The complaint alleged that on June 19, 1936, the respondents dis-
charged, and thereafter refused to reinstate, William J. Kennedy
and John F. Emler, because of union activity. The answer avers
that they were discharged for other reasons. Both men were em-
ployed as linemen in the overhead bureau of New York and Queens
Electric Light and Power Company, were discharged on the same
day, and were given identical explanations for their discharge. We
will relate the history of the employment and the union activity of
each of them separately and then discuss their discharges as a single
incident.
Kennedy. Kennedy worked for this company during 1923 and
1924 as a meter-tester. He resigned and subsequently reentered its
employ on January 18, 1928, as a first grade lineman's helper at $29.90
weekly. In 1929 he became a third class lineman at $31.90. There-
after he was advanced to the position of second grade lineman and
in 1934 to that of first class lineman, in which position he was em-
ployed at the time of his discharge at a weekly salary of $40.48. His
steady advancement is an indication of his competency as a workman.
He had also gained experience in underground work and as a
"trouble-shooter", the latter job ranking just above first class lineman.
The respondent's employment records show that during the year
prior to his discharge, Kennedy was absent from his work for more
than normal periods, but this was caused by illness and time spent in
a hospital. He testified that his illness arose out of the character of
his work, which often involved working in muddy ditches during
inclement weather, and that the respondents' own. doctor treated him
and advised him to go to a hospital.
In 1934 Kennedy became a member of the Plan and was elected
bureau representative for more than 300 employees in the overhead
bureau. Shortly thereafter he became convinced that the Plan was
a company-dominated union and was not hesitant about stating his
views. In November 1934 he met Wersing, joined the Independent
Brotherhood, and thereafter became very active in soliciting for mem-
bers. In February 1935 he was elected general manager of Local No.
103. At several meetings of the Plan in the early part of 1935 he spoke
of the futility of the Plan. At approximately this time he sought to
resign from his position as overhead bureau representative in the
Plan. He communicated his intention to his supervisor, who urged
him not to resign as it would create an unfavorable impression toward
102 NATIONAL LABOIt RELATIONS BOA1tD
the Plan. Kennedy yielded, but was later informed by the chief
officer of the Plan that his supervisor had suggested expelling "that
radical", Kennedy, from the Plan. At a meeting of the Plait held
thereafter Kennedy taxed his supervisor with having uttered the
above statement, which his supervisor parried with a query as to
what other course was open to him as a representative of the manage-
ment. At a special meeting of the Plan held shortly thereafter, one
of the respondent's officials made an address containing references to
certain radicals and agitators. Kennedy arose and remarked that
it was obvious that the references were addressed to him, and that if
they denominated his activities agitation, then he was an agitator.
The respondent's official then made some remarks about misinterpre-
tation and dropped the matter. At the Plan election in June 1935
Kennedy refused renomination. In August 1935 he was elected presi-
dent of the national organization of the Independent Brotherhood,
resigning from his position as general manager of Local No. 103,
which was taken over by Wersing.
After the discharge of Wersing, Greulich, and Wagner, Kennedy
was selected as chairman of a committee to negotiate with the respond-
ent concerning the discharge of the three men. The committee had
a conference with the president of the New York and Queens Electric
Light and Power Company in December 1935, at which Mayor La
Guardia was present, but nothing was accomplished. The committee
reported back to the members of Local No. 103, and were empowered
by them to call a strike if necessary. Two representatives from the
Labor Department of the State of New York strove to obtain a settle-
ment with the respondents, but were unsuccessful. Kennedy decided
not to call a strike, as the Christmas season was considered
inopportune.
In April 1936 the Independent Brotherhood affiliated with the
I. B. E. W. and Kennedy resigned his presidency of the Independent
Brotherhood to become a rank and file member of the I. B. E. W.
He decided at this time to run again for office in the Plan. On June
11, 1936, he was elected representative for the overhead bureau. He
was discharged a week later on June 19, 1936.
Emler. Emler began his employment with the respondent in July
1927 as a clerk at a weekly salary of $25.00. Shortly thereafter he
was transferred to meter-setting at $27.00 weekly. At approximately
six months' intervals he was advanced to lineman's helper in the over-
head bureau, to third class lineman, to second grade lineman, and
finally to first class lineman, the position he held at the time of his
discharge at a weekly salary of $40.48. There had never been any
complaints concerning his work and his steady advancement is testi-
mony of his competency.
DECISIONS AND ORDERS 103
In April 1935 he became a member of the Independent Brother-
hood. He devoted his spare time to organizational activity with
Wersing and Greulich and talking in behalf of the Independent
Brotherhood. In September 1935 he was elected to the executive
board of Local No. 103. He was a member of the committee which
negotiated for the reinstatement of Wersing , Greulich, and Wagner,
and participated in the negotiations . He was also a member of the
committee n hich in December 1935 was empowered to call a strike.
At that time he was advised by his foremen that it would be foolish
to call . a strike. He continued his union activities until the time of
his discharge on June 19, 1936.
Their discharges . On June 17, 1937, Kennedy and Emler, who
were working on different field jobs, were informed by their foremen
that Mr. Payne at the Personnel Bureau wished to see them. They
had separate , but substantially similar, interviews with Payne.
Payne informed them that he had bad news, that lie had orders from
the respondents to lay off "surplus employees", and that since they
were surplus employees they were being laid off. Both men asked
him the manner in which eight years of continuous service had
achieved for them the status of surplus employees, but he was unable
to explain . He told them that there was a possibility of securing
work with Consolidated Edison Company of New York , Inc., and
gave them the name of a personnel officer of that company. Both
men called there that afternoon , but were unable to see the personnel
officer. The next morning they succeeded in obtaining an interview,
at which they were questioned concerning their ability to perform
certain technical electrical work. On learning that they were not
qualified • for such work, the personnel officer made some remarks
about jobs as linemen 's helpers at $30.00 a week , which were followed
by the expression of his opinion that those jobs were probably all
filled anyway . On June 19 they returned to Payne and were for-
mally laid off , receiving their separation allowances of two weeks'
pay for each year of service . Four other men were discharged dur-
ing the same period, of whom two were union men and two were not.
One of the nonunion men, Baake , received employment from Con-
solidated Edison Company of New York, Inc., while the other re-
turned to his former job the next day. Kennedy testified that both
he and Emler had seniority over a large number of employees in their
bureau, and that they were the only first class linemen who were laid
off, while there had been no prior, discharges of first class linemen.
In December 1936 Payne notified Kennedy of an opportunity to
secure employment with another public utility company, New York
Dock Company . Kennedy notified his union , which in turn notified
Emler. Emler called upon Payne who told him to apply for work
at the New York Dock Company, adding as a parting thrust that
67573-38-vol iv--8
104 NATIONAL LABOR RELATIONS BOARD
it would be embarrassing for the respondents if Emler resumed his
"funny business" at his new job. Emler secured a lineman's job
with the New York Dock Company, but at a weekly salary of $30.00,
the salary paid to a lineman's helper by the respondents. He is still
so employed at a weekly salary of $35.00. The respondents have not
requested either Kennedy or Emler to return to their employment.
The respondents contend that the discharges of Kennedy and
Emler resulted from the reductions in the overhead bureau necessi-
tated by the gradual change in the character of the work in Queens
from overhead to underground. A number of the overhead workers
were trained for underground work, while others had to be laid off.
In this group were Kennedy and Emler. Dean, who testified to the
above, did not adequately explain why Kennedy and Emler were laid
off, while men with less seniority were retained; nor did he adequately
negative Kennedy's statement that after his discharge the men in
the overhead bureau were placed on a six day week and that other
men were transferred to his department.
It is most significant that the discharges occurred within a week
after Kennedy's election as Plan representative for the overhead
bureau. He had proved himself a source of trouble to the respond-
ents when he previously held that position, and it was certain that
he would now renew his activity within the Plan in opposition to the
respondents' domination of the Plan. His election to that position,
in spite of his open affiliation with an outside union, is an indication
of the influence he wielded among the employees of the overhead
bureau. Discharge would automatically terminate his membership
in the Plan, or a transfer to another of the respondents' companies
would automatically make him a member of the Plan of such other
Company where he would not retain his position as a bureau repre-
sentative. The evidence points to this as the true explanation for
the course adopted by the respondents of giving him a choice between
discharge and a transfer to an inferior position in another of the
respondents' companies.
Emler was the last of the group associated with Wersing, Greulich,
Wagner, and Kennedy in the organization of Local No. 123 of
the Independent Brotherhood. His discharge or transfer from
Queens, coupled with that of Kennedy, would serve to remove the
two principal, active union men who were associated with the three
men originally discharged. Payne's admonition to him in December
1936 not to resume his "funny business" at the New York Dock
Company clearly indicates how long-lived was the recollection of
Emler's union activities in the minds of his supervisors.
Although'the evidence supports the respondents' contention that
the overhead bureau was being gradually reduced because of the
change in the character of the work in Queens from overhead to
DECISIONS AND ORDERS 105
underground, we find that the lay-offs incidental thereto were merely
utilized to screen the respondents' true motive. We find that Ken-
nedy and Emler were in fact discharged because of their union activ-
ity. The respondents thereby discriminated in regard to hire and
tenure of employment in order to discourage membership and activity
in a labor organization, and interfered with, restrained, and coerced
their employees in the exercise of the rights guaranteed in Section 7
of the Act.
Kennedy operated a private club after his discharge, but testified
that it was a losing venture. Since March 1937 he has been engaged
as a paid organizer in the utilities division of the Committee for
Industrial Organization. Emler has been working for New York
Dock Company since December 1936 at a lower salary than that which
he received in the employ of the respondents. Both Kennedy and
Emler desire to return to their former positions in the employ of the
respondents.
We find that Kennedy and Emler have not, since their discharges,
obtained any other regular and substantially equivalent employment.
3. Solosy
The complaint, as amended, alleges that the respondents discharged
Stephen L. Solosy on January 17, 1936, and thereafter refused to
reinstate him, because of union activity. The answer avers that he
was discharged for other reasons.
Solosy commenced work in October 1928 as a tester in the labora-
tory of Consolidated Gas Company of New York, which is now Con-
solidated Edison Company of New York, Inc. He left this employ-
ment in November 1928, but returned to work in January 1929 and
continued in the respondent's employ until his discharge. After hav-
ing worked in the laboratory for the first four months at a weekly
salary of $20.00, he was transferred to work on instruments known as
Thomas calorimeter inspectors, which measured the B. t. u. content
of gas. His job was concerned with maintaining, servicing, repair-
ing, and overhauling those instruments. At that time there were
twenty-seven such instruments, situated at different places, in the
respondents' entire system. Solosy's work was thus performed in
different places. He received periodic increases and at the time of
his discharge was receiving a weekly salary of $33.54. No complaints
or reprimands concerning his work were made. His steady increases
in pay attest his competency.
Early in 1934 he became a member of the Federation of Architects,
Chemists, Engineers, and Technicians, an independent union.
Shortly thereafter he joined the Plan. The members in his depart-
ment elected him and Philemon Ewing to head a committee to
106 NATIONAL LABOR RELATIONS BOARD
investigate the Plan. He served on this committee for three months,
rendering monthly reports to the effect that the Plan was a company-
dominated union. In the latter part of 1934 he and Ewing joined
the Independent Brotherhood. Both of them did a great deal of
organization work in Manhattan for the Independent Brotherhood.
His activity became open and known to the respondents at least as
early as March 1935. As we have stated previously, during Apr:l
1935 he was trailed by detectives, and reports concerning his and
Ewing's activities were filed with the respondents. In March 1935
Solosy and Ewing began to publish and distribute a monthly paper
called the "Gas Man". Its last issue appeared in November 1935.
Both Solosy and Ewing solicited employees at their homes for
membership in the Independent Brotherhood, securing at least 25
members in the latter part of 1935. Solosy and Ewing were the only
employees in their department who were vigorously engaged in union
activity.
Solosy and Ewing were discharged at the same time and in the
presence of each other. Solosy was told that lie was being laid off
because the respondents were shutting down the "A" plant of the
Astoria Light, Heat, & Power Company, thereby necessitating the
laying-off of a number of employees. It appears that the "A" plant
was in fact shut down, probably because of the decrease in the
amount of gas sold. Solosy was not given previous notice of his
discharge, but was given his separation allowance. He pressed his
supervisor for further reasons concerning his discharge and received
the following cryptic reply, "You know more about it than I do".
In answer to a question whether he would ever be called back, his
foreman said that he thought not. The respondents have not
requested Solosy to return to their employ.
It appears from the evidence that although there were a few ethers
discharged at the same time with Solosy and Ewing, Solosy was the
only one in his division who was discharged. There were only seven
employees in his division. Solosy testified that of the other six em-
ployees he had seniority over two.
It is significant on the one hand that Solosy and Ewing were the
only active union men in their department and that their activities
were investigated by detectives and reports of their activities filed
with the respondents. On the other hand there is an absence of any
adequate explanation for Solosy's discharge while two fellow em-
ployees with less seniority were retained. The evidence clearly indi-
cates that the reduction of employees necessitated by the shutting
down of the "A" plant was utilized as a screen to conceal the true
motive for his discharge.
When we consider all the six discharges involved in this case, it
is apparent that the respondents succeeded in eliminating from their
DECISIONS AND ORDERS 107
employ all the principal organizers and officers of the Independent
Brotherhood. Their success was too complete to have been a conse-
quence of the disinterested operation of reductions in personnel.
At the hearing the respondents were not allowed to introduce the
testimony of Solosy's supervisors when offered at the continuance
on July 6, 1937. The respondents offered no good reason for their
failure to produce these witnesses at the close of the Board's case on
June 24, 1937. They cannot complain of the Board's refusal to
admit the testimony when the hearing was resumed two weeks later
for the purpose of receiving the testimony of Carlisle and Dean.
We find that Solosy was in fact discharged because of his union
activity. The respondents thereby discriminated in regard to hire
and tenure of employment in order to discourage membership and
activity in a labor organization, and interfered with, restrained,
and coerced their employees in the exercise of the rights guaranteed
in Section 7 of the Act.
Solosy has been unemployed since his discharge. He desires to
return to his former position in the employ of the respondents. We
find that Solosy has not, since his discharge, obtained any other
regular and substantially equivalent employment.
IV. EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Upon the whole record we find that the activities of the respondents
set forth in Section III above, occurring in connection with the opera-
tions of the respondents described in Section I above, have a close,
intimate, and substantial relation to trade, traffic, commerce, transpor-
tation, and communication -among the several States and with for-
eign countries, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and upon the
entire record in the proceeding, the Board makes the following con-
clusions of law :
1. United Electrical and Radio Workers of America, and its pred-
ecessor unions, and International Brotherhood of Electrical Work-
ers are labor organizations within the meaning of Section 2 (5) of the
Act.
2. Martin A. Wersing. Julius A. Greulich, Michael A. Wagner,
William J. Kennedy, John F. Emler, and Stephen L. Solosy were,
at the times of their discharges, and at all times thereafter, employees
of the respondents, within the meaning of Section 2 (3) of the Act.
3. The respondents, by discriminating in regard to the hire and
tenure of employment of Martin A. Wersing, Julius A. Greulich,
108 NATIONAL LABOR RELATIONS BOARD
Michael A: Wagner, William J. Kennedy, John F. Emler, and Stephen
L. Solosy and thereby discouraging membership in United Elec-
trical and Radio Workers of America and its predecessor unions, have
engaged in and are engaging in an unfair, labor practice, within the
meaning of Section 8 (3) of the Act.
4. The respondents, by interfering with, restraining, and coercing
their employees in the exercise of the rights guaranteed in Section 7
of the Act; have engaged and are engaging in unfair labor practices,
within the meaning of Section 8 (1) thereof.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of the
Act.
6.' The respondents have not engaged in unfair labor practices within
the meaning of Section 8 (2) 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-
spondents, Consolidated Edison Company of New York, Inc., and its
affiliated companies: Brocklyn Edison Company, Inc., New York and
Queens Electric Light and Power Company, Westchester Lighting
Company, The Yonkers Electric Light and Power Company, New
York Steam Corporation, Consolidated Telegraph and Electrical Sub-
way Company, their officers, agents, successors, and assigns shall:
1. Cease and desist from :
a. Discouraging membership in United Electrical and Radio
Workers of America or any other labor organization of their em-
ployees, or encouraging membership in International Brotherhood of
Electrical Workers or any other labor organization of their em-
ployees, by discharging or refusing to reinstate any of their employees
or in any other manner discriminating in regard to their hire or
tenure of employment or any term or condition of their employment
because of membership or activity in connection with any such labor
organization ;
b. Urging, persuading, warning, or coercing their employees to
join International Brotherhood of Electrical Workers, or any other
labor organization of their employees, or threatening them with dis-
charge if they fail to join any such labor organization;
c. Permitting organizers and collectors of dues for International
Brotherhood of Electrical Workers or any other labor organization to
engage in activities among their employees in behalf of such labor
organizations during working hours or on the respondents' property,
unless similar privileges are granted to United Electrical and Radio
DECISIONS AND ORDERS 109
Workers of America and all other labor organizations of their
employees ;
d. Permitting their employees who were officials of the Employees'
Representation Plans to use the respondents' time, property, and
money in behalf of International Brotherhood of Electrical Workers
or any other labor organization of their employees ;
e. Employing detectives to investigate the activities of their em-
ployees in behalf of United Electrical and Radio Workers of America
or any other labor organization of their employees or employing any
other form or manner of espionage for such purposes;
f. 'Giving effect to their contracts with the International Brother-
hood of Electrical Workers;
g. Recognizing the International Brotherhood of Electrical
Workers as the exclusive representative of their employees;
h. In any other manner interfering with, restraining, or coercing
i heir 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.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
a. Offer to Martin A. Wersing, Julius A. Greulich, Michael A.
Wagner, William J. Kennedy, John F. Emler, and Stephen L. Solosy
immediate and full reinstatement to their former positions without
prejudice to their seniority and other rights or privileges;
b. Make whole Martin A. Wersing, Julius A. Greulich, Michael
A. Wagner, William J. Kennedy, John F. Emler, and Stephen L.
Solosy for any loss of pay they have suffered by reason of their dis-
charges, by payment to each of them of a sum equal to that which
he would normally have earned as wages during the period from the
date of his discharge to the date of such offer of reinstatement, less
the amount earned by him during such period;
c. Post immediately notice to their employees in conspicuous
places through their offices, buildings, plants, and other places of
employment stating : (1) that the respondents will cease and desist
in the manner aforesaid; (2) that the respondents' employees are
free to join or assist any labor organization for the purposes of col-
lective bargaining with the respondents; (3) that the respondents
will bargain collectively with any labor organization entitled
thereto; (4) that the respondents will not discharge, or in any man-
ner discriminate against members of United Electrical and Radio
Workers of America or any other labor organization of their em-
ployees or any person assisting such organizations by reason of such
membership or assistance; (5) that the respondents will not dis-
110 NATIONAL LABOR RELATIONS BOARD
charge, or in any manner discriminate against any employee for re-
fusal or failure to join or assist International Brotherhood of
Electrical Workers or any other labor organization of their employ-
ees; (6 ) that such notices will remain posted for a period of at least
thirty ( 30) consecutive days from the date of posting;
d. Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order what steps the
respondents have taken to comply herewith.
The complaint, in so far as it alleges that the respondents have
engaged in and are engaging in 'unfair labor practices within the
meaning of Section 8 (2) of the Act, is hereby dismissed without
prejudice.