Empire District Electric Co.

National Labor Relations Board - Board Decisions

Mar 13, 1940

21 N.L.R.B. 605 (N.L.R.B. 1940)

In the Matter of EMPIRE DISTRICT ELECTRIC COMPANY and INTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION B-95
Case No. C-874 .-Decided Mar-c& 13, 19410
Elects is Utility Industi y-In.tertei ence, Restraint , and Coercion : inducing and
coercing resignations from Union ; surveillance of union membership and ac-
tivities ; anti-union statements by supervisory officials ; charges of ; as to
interference with union meetings by means of entertainment , dismissed-
Discrimination : transfers to discourage union membership and activities;
charges of, as to other employees transferred , laid off, or discharged, dismissed-
Reinstatement Ordered: transferred employee-Back Pay: reimbursement ordered
transferred employee for any loss of pay incurred by reason of transfer
Jlr. Henry H. Foster, Jr., for the Board.
Spencer c6 Spencer, by Mr. A. E. Spencer and Mr . John W. Scott,
of Joplin, Mo., for the respondent.
111r. Gibson Langsdale , of Kansas City, Mo., for the I. B. E. W.
Mr. Willard Yonciq Morris, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Brotherhood of Electrical Workers, Local Union B-95, herein called
the I. B. E. W.,1 the National Labor Relations Board, herein called
the Board, by the Regional Director for the Seventeenth Region
(Kansas City, Missouri), issued its complaint dated May 11, 1938,
against Empire District Electric Company, Joplin, Missouri, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
The complaint and notice of hearing thereon were duly served upon
the respondent and the I. B. E. W.
IInteinational Brotherhood of Electrical Workers, Local Union B-95, superseded Inter-
national Brotherhood of Electrical Workers, Local Union 95 in May 1937 The distinction
not being pertinent to the present case, we shall refer to both as the I B E. W
21 N L. R. B., No 59
605
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
Concerning the unfair labor practices , the complaint , as amended,2 al-
leges in substance that ( 1) the respondent discriminatorily transferred
to less favorable positions six named employees , laid off out of sen-
iority four named employees , discharged four named employees, and
refused employment to Ned Barkley, and thereby discouraged mem-
bership in a labor organization ; and (2 ) the respondent by its officers
and supervisory officials interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act, by the above acts and by ( a) making statements hostile to the
I. B. E. W ., (b) maintaining surveillance over the organizational
activities of its employees , ( c) conducting parties on the meeting
nights of the I . B. E. W. for the purpose of inducing its employees
to stay away from such meetings , and (d ) inducing members of or
applicants for membership in the I. B. E. W . to resign from or with-
draw applications for membership in said labor organization.
On May 17 , 1938, the respondent filed its answer , which was sub-
sequently amended, denying that it had committed the alleged unfair
labor practices.
Pursuant to notice , a hearing was held in Joplin, Missouri, from
May 26 to June 7, 1938, before Charles E. Persons, the Trial Exam-
iner duly designated by the Board. The Board , the I . B. E. W., and
the respondent were represented by counsel and participated in the
hearing. Full, opportunity to be heard , to examine and cross -examine
witnesses , and to introduce evidence bearing upon the issues was
afforded all parties. During the course of the hearing , the Trial
Examiner made various rulings on motions and on objections to the
admission of evidence . The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
On August 25, 1938, the Trial Examiner filed his Intermediate
Report, iri which he found that the respondent had engaged in un-
fair labor practices affecting commerce within the meaning of Sec-
tion 8 ( 1) and (3) and Section 2 (6) and (7) of the Act, recom-
mended dismissal of the complaint as to two persons alleged to have
been discriminatorily laid off out of seniority and one person alleged
to have been discriminatorily discharged , and recommended that
the respondent cease and desist from such unfair labor practices and
take certain affirmative action remedial of their effect.
Thereafter , exceptions to the Intermediate Report were filed by
the respondent and by the I. B. E. W . On June 27 and 30, 1939,
2 During the hearing the complaint was amended, omitting the name of Fred Pickett,
alleged in the original complaint to have been disciiminatorily laid off out of seniority,
adding the name of Jack Pritchard to the list of those alleged to have been discrimina-
torily laid off out of seniority, adding the name of Ned Barkley to the list of those alleged
to have been discriminatorily discharged, and separately alleging that Ned Barkley was
discriminatorily refused employment.
EMPIRE DISTRICT ELECTRIC COMPANY 607
respectively, oral argument upon the exceptions before the Board in
Washington , D. C., was waived by the respondent and the I. B. E. W.
Thereafter , pursuant to leave granted by the Board, briefs were sub-
mitted by the respondent and the I. B. E. W . The Board has con-
sidered the exceptions to the Intermediate Report and save as they
are consistent with the findings , conclusions , and order set forth
below , finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Empire District Electric Company , a subsidiary of Cities Service
{Power & Light Company , is a Kansas corporation , engaged print--
pally in the generation , transmission , distribution , and sale, at whole-
sale and retail , of electricity in the States of Kansas , Missouri, and
Oklahoma. Its principal office and place of business is located at
Joplin, Missouri . It has generating plants in Kansas and Missouri.
In addition to the electrical energy there generated, the respondent
in 1937 purchased 2,354,726 kilowatt hours of electricity from the
Ozark Utilities Company in Missouri. In 1937, the respondent sold
48,715,284 kilowatt hours of electricity in Kansas , 135,777,329 kilo-
watt hours of electricity in Missouri , and approximately 70,000,000
kilowatt hours of electricity in Oklahoma. The respondent in 1937
also sold 761,211 kilowatt hours of electricity to the Benton County
Company at the Missouri -Arkansas boundary line for distribution
in Arkansas. The electric power purchased by the respondent and
generated in its plants is transmitted through interconnected trans-
mission and distribution lines, making it impossible to determine the
exact amounts of electricity transmitted from State to State. How-
ever, in 1937, in Kansas the respondent generated over 180,000,000
kilowatt hours more than it sold; in Missouri it sold over 60,000,000
kilowatt hours more than it generated ; and in Oklahoma all the cur-
rent sold was generated in other States . Thus it appears that in that
year, at least 130,000,000 kilowatt hours of electricity was transmitted
by the respondent across State lines.
The respondent also engages in selling at retail electrical ;equip-
ment and supplies, more than half of which are purchased by the
respondent outside the State of Missouri from various manufacturers
"throughout the country." The respondent makes such sales through
its offices located in Joplin, Webb City , Aurora , Neosho, and Pierce
City in the State of Missouri and in Baxter Springs , Galena, and
Columbus in the State of Kansas.
In the conduct of its business , the respondent operates a plant de-
partment , in the charge of a superintendent , a chief engineer, and a
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
chief electrician, and a distribution department, in the charge of a
superintendent, supervisors, and various foremen. The distribution
department is divided, into three geographical divisions, each in the
charge of a supervisor, line foremen, and other supervisory employees.
The Eastern Division of the distribution department comprises a
large part of eastern Missouri ; the Central Division, a limited section
of Missouri around Joplin ; and the Western Division, parts of Kansas,
Oklahoma, and southwestern Missouri.
H. THE LABOR ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers, Local Union
B-95, is a labor organization affiliated with American Federation of
Labor. It admits to membership employees of the respondent. In
May 1937, Local Union B-95 superseded Local Union 95 of the Inter-
national Brotherhood of Electrical Workers.
International Brotherhood of Electrical Workers, Local Union No.
950, affiliated with the American Federation of Labor, herein called
Local No. 950, was a labor organization admitting to membership
employees of the respondent in and around Picher, Oklahoma. Local
No. 950 surrendered its charter in February 1937.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
1. Coerced resignations
On October 18, 1937, the I. B. E. W. filed with the Regional Direc-
tor for the Seventeenth Region a petition for investigation and
certification of representatives.3 Negotiations were thereupon begun
between the I. B. E. W. and the respondent in an attempt to agree
upon an appropriate bargaining unit and a method of determining
majority representation, in order to avoid the necessity of formal
action on the petition by the Board. During the following month,
conferences with this in view were held by representatives of the
respondent, the I. B. E. W., and the Board. These negotiations,
however, finally proved fruitless, agreement not being reached as to
the appropriate unit and the method of determining majority
representation.
The complaint, as amended, alleges that the respondent induced 20
named employees to resign from the I. B. E. W. At the hearing
there were introduced into evidence written resignations signed by
the same 20 employees. These resignations bear dates which range
$Matter of Empire District Elect,Ic Co and laaternational Brothc,hood of Electrical
Workers, Case No. XVII-R-58, dismissed in June 1938
EMPIRE DISTRICT ELECTRIC COMPANY 609
from October 26 to November 10, 1937, the period immediately follow-
ing the filing of the above-mentioned petition. Of the 20 named
employees only 4, Hugh Orcutt, Claude Biddlecome, T. T. Alexander,
and Charles Buxton, appeared at the hearing to testify.
Hugh Orcutt, a substation electrician working in the respondent's
Eastern Division, testified that a few days before October 28, 1937,
he was approached by Glenn Watkins,4 one of the respondent's line
foremen, and told by him that Adam Rogers, supervisor of the
respondent's Eastern Division would "appreciate" Orcutt's resigning
from the I. B. E. W. and that the respondent would reward him for
doing so. Watkins threatened him, in the alternative, with dis-
charge. According to Orcutt, Watkins took him to one of the re-
spondent's plant offices where he wrote his resignation at Watkins'
dictation. After several attempts they finally agreed on the wording
of the resignation. Watkins, noticing that it was written on the
respondent's stationery, suggested that the letterhead be cut off, which
was done. Watkins took a carbon copy of the resignation and Orcutt
retained the original, which he mailed to the T. B. E. W. a few days
later. Watkins did not testify at the hearing. We accept Orcutt's
testimony as an accurate account of the occurrence.
On October 28, 1937, Supervisor Rogers invited T. T. Alexander,
a line foreman, and Claude Biddlecome, a lineman, both members
of the I. B. E. W., and another employee, to accompany him to a
cafe, where Rogers bought them beer and gin to drink. During the
course of the conversation Rogers told Biddlecome and Alexander
that several members of the I. B. E. W. had resigned. Rogers pro-
duced a carbon copy of Orcutt's resignation and showed it to them.
Biddlecome, then, at Rogers' suggestion, wrote out his resignation.
Alexander testified that he wrote out his resignation after Rogers
had told him and Biddlecome that unless they resigned it was "on
down the river for them." Alexander explained that he understood
by this that they were threatened with discharge. Carbon copies
were made of these resignations, Rogers providing the paper and
carbons. Alexander mailed the originals to the I. B. E. W. and
Rogers retained the carbon copies.
Rogers, in his testimony, admitted taking these employees to the
cafe, and buying drinks for them. He further admitted showing
Orcutt's resignation to Biddlecome and discussing the matter with
him, but denied speaking with Alexander about resigning, insisting
that Alexander must have overheard his discussion with Biddlecome.
He admitted, however, having writing paper and carbon paper in
his pocket which he gave to both Biddlecome and Alexander for their
resignations. Rogers denied having threatened either Alexander or
"Watkins also resigned from the I. B E. W. His resignation is dated October 28, 1937.
610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Biddlecome. Rogers testified that his talk with Biddlecome concern-
ing resignation from the I. B. E. W. was prompted by his having
heard that Biddlecome was misinformed concerning the I. B. E. W.
We find it unnecessary to resolve whatever conflict may exist
between the testimony of Alexander and Rogers. Rogers did not
deny his having obtained the resignations of both Biddlecome and
Alexander. Whether Alexander's resignation resulted from Rogers'
remarks addressed to Biddlecome alone or to both Biddlecorne and
Alexander is immaterial. It is clear that the resignations resulted
from Rogers' suggestions, if not from actual threats, and we so find.
Charles Buxton, a lineman employed in the respondent's Central
Division, testified that late in October 1937 his foreman, Lee Mills,
told him the following : that Orcutt and Alexander had resigned
from the I. B. E. W.; that other members were going to resign ; that
the I. B. E. W. was going to attempt to compel the respondent to
sign a contract; that Buxton, whose name was on the rolls of the
I. B. E. W., should go to the respondent's storeroom at noon and
write his resignation; and that the respondent wanted a carbon copy
of it. Buxton further testified that he went to the storeroom at
the noon hour, but because there were two or three other employees
present he postponed writing his resignation. According to Buxton,
Mills then said : "Hurry up and get that letter in there ; they are
going to use your name on this list." Buxton, however, did not sign
his resignation until that evening.
Mills, in his testimony, at first denied discussing resignation from
the I. B. E. W. with Buxton. On being closely questioned, however,
he admitted having had a conversation with Buxton as follows :
He [Buxton] asked me if-what I thought about it and I
told him that if he wanted to get out of it that it was-that he
could send in his resignation and that would stop it. That was
my idea about it.
Mills further admitted telling Buxton that there was writing paper
available in the respondent's office and receiving carbon copies of
resignations from Buxton and another employee, Degraffenreid, who,
Mills stated, might have heard him tell Buxton that there was writing
paper available in the office for the purpose of resignation. Mills'
admissions are consistent with the campaign waged by the respond-
ent to obtain its employees' resignations from the I. B. E. W. In
the light of his admissions and all the evidence concerning the resig-
nations, we cannot accept Mills' denial. We find that the respondent,
by its foreman, Mills, coerced Buxton into resigning from the
I. B. E. W.
E. E. Spracklen, superintendent of the respondent's distribution
department, testified that Rogers telephoned to him between
EMPIRE DISTRICT ELECTRIC COMPANY 611
October 23 and 25 to inform him of Orcutt's having resigned, and
that he instructed Rogers to forward the copy of the resignation
to him. Spracklen insisted in his testimony that he did not under-
stand the reason for Orcutt's turning in a copy of the resignation.
Spracklen, on being asked whether he had ordered or instructed
Brown, supervisor of the respondent's Central Division, and Rogers
to obtain copies, replied as follows :
I had asked Brown and Rogers both to bring me in the copies
of resignations that apparently were appearing all over the
district, all over the organization.
When asked why copies of the resignations were made, Spracklen
replied :
I don't know. I can't account for the first one, where Orcutt
sent the one to Rogers at Aurora. That first made me suspicious
of the whole set-up and I asked for all of them if there were
any. -I asked for all that might appear and that one came in,
and as I say, four or five days, had apparently an avalanche,
that is four five days later after we received the first one.
When Brown was asked to explain the resignations and the carbon
copies, he testified : "I suppose the boys wanted them kept on file
for their own reference that they had sent this resignation in."
Brown testified that he understood that the men wanted the com-
pany to "preserve" the resignations for the men. He admitted,
however, that it was not customary for the respondent to "preserve"
the personal files or papers of its employees. Pressed further, Brown
admitted that the respondent was "interested" in the letters of
resignation. Brown also admitted knowing that "there was some
negotiations going on" concerning the determination of the
I. B. E. W.'s representation of a majority of the respondent's em-
ployees. Brown at first denied knowing what the "stimulus" of the
resignations might have been. Having testified that he received
several copies of resignations from Foreman Mills, Brown was asked
whether he had ever requested Mills to obtain them. He replied :
"No. Mr. Mills asked me if there was any way for the boys to get
out from under this thing, and I said I didn't know of any way
unless they wanted to resign." Brown admitted that he had made
the foregoing statement before receiving any copies of resignations.
We think the picture is clear. At a time when the I. B. E. W.
was claiming to represent a majority of the respondent's employees
within a unit claimed to be appropriate and attempting to nego-
tiate with the respondent on such a basis, the respondent by its
supervisory employees set out to destroy the I. B. E. W.'s member-
ship or at least to disprove that it represented a majority as it
612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
claimed. The respondent's superintendent, its supervisors, and its
foremen participated in creating a mass defection from the
I. B. E. W. and to attain the respondent's end resorted to persuasion,
promises, and threats.
The respondent contends that it cannot be held responsible for
the "individual acts . . . or expressions of opinion by its fore-
men and other supervisory officials . . ." and points to the fact
that, pursuant to an understanding reached with the I. B. E. W.
soon after the passage of the Act, the respondent posted notices
on its bulletin boards, stating that all foremen and other supervisory
employees had been instructed to observe the Act.
There can be no question as to the supervisory status of those
who conducted the respondent's anti-union campaign. Spracklen,
Rogers, and Brown all hire and discharge employees, and the re-
spondent's foremen, although it is not clear that they have authority
to do so, as a matter of practice discharge employees. The union
membership of Alexander or of similar supervisory employees does
not relieve the respondent from responsibility for the activities of its
supervisory employees which interfere with, restrain, or coerce its
employees in the exercise of the rights guaranteed to them in Section
7 of the Act.-5
While the respondent posted notices in which it stated an intention
to observe the Act, it is clear that it took no effective means to stop
repeated violations of the Act. On the contrary, the respondent par-
ticipated in and ratified the illegal acts of its supervisory employees
by such acts as accepting from them copies of the resignations which
had been procured by means of threats, intimidation, and coercion.
Furthermore, with respect to the supervisory employees the doctrine
of respondent superior applies, and the respondent is responsible for
the actions of those employees, even though it had no actual partici-
pation therein.6
5See Matter of Ward Baking Company and Committee Jon Industrial Organization and
Bakery and Confectionery Wo) kers International Union -of America, 8 N L R B 558;
Matter of Tennessee Copper Company and A F. of L. Federal Union No 21164, 8 N. L R
B 575, 9 N L. R. B 117; Matter of Mt. Vernon Car Manu fact it? ing Company, a corpora-
tion and Local Lodge No. 1756, Amalgamated Association of Iron , Steel & Tin Workers of
North America, affiliated with the Committee for Industrial Organization , 11 N L R. B
500; Matter of Borden Mills , Inc. and Textile Woi kers Organizing Committee, 13 N. L.
R. B 459.
°Swift & Company v. National Labor Relations Board, 106 F (2d) 87 (C. C A 10),
enforcing Matter of Swift & Company and Amalgamated Meat Cutters and Butcher Work-
men, etc ; International Association of Machinists v National Labor Relations Board.
311 II S 72, enforcing Matter of The Seri icb Corporation and International Union United
Automobile Workers of America, Local No 459, National Labor Relations Boairl v The
4 S Abell Co, 97 F (2d) 951 (C C A 4), enforcing Matte) of The A S Abell Co , a
con poi ation and Intonational Printing and Pressmen 's Union , 5 N L R B 644
EMPIRE DISTRICT ELECTRIC COMPANY 613
We find that the respondent, by inducing and coercing the resigna-
tion of I. B. E. W. members, has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed to them
by Section 7 of the Act.
2. Surveillance
The complaint, as amended, alleges that the respondent maintained
surveillance over the union activities of its employees. There is
abundant evidence of a concerted effort on the part of the respond-
ent's supervisory officials to inquire of the employees under them
concerning their membership in and attitude toward Local No. 950
and the I. B. E. W.
Supervisor Rogers admitted having "sounded out" most of the
employees working under him concerning their attitude toward or-
ganizational activities. We accept Rogers' admission. Walter Pick-
ering, who is in charge of the respondent's meter department,
testified that during the summer of 1937 Superintendent Spracklen
inquired of him concerning union activities in his department. Ac-
cording to Pickering, he thereupon inquired of his men as to their
union membership and activities. When asked whether he had re-
ported to Spracklen the results of such inquiries, Pickering testified :
"I imagine I did. I have no definite memory. I undoubtedly did."
Spracklen did not deny asking for or receiving such information.
We find that Pickering made such inquiries of the employees under
him and reported his findings to Spracklen. It is evident from the
record that during the summer and fall of 1937 other foremen and
supervisors of the respondent also questioned employees concerning
their attitude toward and membership in the I. B. E. W.
During the summer of 1937 Superintendent Spracklen and Super-
visor Brown were repeatedly seen by members of the I. B. E. W.
walking past the hall in Joplin, Missouri, in which the I. B. E. W.
held its meetings on nights when such meetings were held. Both
Spracklen and Brown admitted seeing the respondent's employees
coming out of or standing in front of the hall but denied that they
had walked past the hall for the purpose of learning the identity
of those attending meetings. It appears that Spracklen and Brown
knew that union meetings were held at the hall. We reject the
denials of Spracklen and Brown and the explanation offered by
Brown'that he could be seen anywhere "downtown most any night,"
in view of the other activities engaged in by Spracklen, Brown, and
other supervisory officials to ascertain the union membership and
activities of the employees, and find that Spracklen and Brown
maintained surveillance over the union activities of the respondent's
employees.
23.1032-41-vol 21-40
614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that the respondent, by inquiring of its employees con-
cerning their union membership and activities and by maintaining
surveillance over its employees' union activities, interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed to them in Section 7 of the Act.
'3. Alleged interference by means of entertainment
The complaint, as amended, alleges that the respondent conducted
parties on meeting nights of the I. B. E. W. for the purpose of
inducing employees to remain away from such meetings. But one
such party, that of May 5, 1937, appears to have been held on a
meeting night. The party began at 5 p. m., immediately after work-
ing hours, and the I. B. E. W.'s meeting was not scheduled to begin
until 8 p. m. During the course of the party at least two kegs of
beer, furnished by Supervisor Brown, were consumed. Tickets to
a game of baseball being played that night were given to some of
the employees present. There is no evidence to show that any mem-
bers of the I. B. E. W. failed to attend the scheduled union meeting,
although it appears that some of those attending were somewhat
intoxicated. Supervisor Brown, who conducted the party, testified,
without contradiction, that May 5, 1937, was the first pay day follow-
ing a general wage increase and that the respondent had also just
completed the electrification of a baseball park, which that evening
was opening its season of night games. Brown stated that he had
bought several tickets to the game, which he gave to some of the
employees at the party.
From all the evidence, we do not find that the respondent, by con-
ducting the party of May 5, 1937, or any other party, interfered with,
restrained, or coerced its employees in the exercise of the rights
guaranteed to them by Section 7 of the Act.
B. Discrimination in regard to hire and tenure of employment;
further interference, restraint, and coercion
1. The transfers
The complaint alleges that the respondent discriminatorily trans-
ferred to less favorable positions the following persons : Hugh Or-
cutt, T. T. Alexander, Claude Biddlecome, Clay Marshall, Mitchell
Vaughan, and Clyde Dilworth.
Hugh Orcutt was employed by the respondent as a substation elec-
trician. His last period of employment with the respondent began
in April 1933, although he had previously been in its employ over
a period of several years. He was a charter member of Local No.
950, which was chartered in August 1935, and was elected to the
EMPIRE DISTRICT ELECTRIC COMPANY 615
office of financial secretary while working for the respondent at
Picher, Oklahoma, under Foreman Ed Wilson.
Orcutt testified that in March 1936, Adam Rogers, supervisor of
the respondent's Eastern Division, came to Picher, which is located
in the respondent's Western Division, and told him that he had
come to "straighten out" Orcutt and the "rest of the boys" and that
Rogers attempted to find out who belonged to Local No. 950, which
Orcutt refused to disclose. According to Orcutt, Rogers then asked
"what it would take to bust it [Local No. 950] up". Orcutt answered
that they "would have to quiet Ed Wilson [foreman] down", that
Wilson should be forced to "stop riding the boys all the time, and
causing trouble that was unnecessary." About a week later Orcutt
was transferred to work at Columbus, Kansas. According to Or-
cutt, although he admitted at the hearing that he had "wanted to
get out of the place," [Picher] Rogers told him that his transfer
to Columbus "was to break up the union". Although Rogers at
the hearing denied the entire incident, we do not credit his denial
and we accept Orcutt's account as being consistent with Rogers' other
admitted acts of interference.
In August 1936 Spracklen sent Rogers to Picher to investigate
the trouble the employees there were reported to be having with
Wilson. Rogers went first to Columbus and asked Orcutt to accom-
pany him to Picher. Rogers explained, at the hearing, that he
considered Orcutt a good friend and that Orcutt had worked at
Picher under Wilson and understood the situation there. On the
way to Picher, Rogers and Orcutt discussed the union situation
there. Orcutt told Rogers that the "boys" there had organized a
union because it was the only way to "fight Wilson." Rogers asked
Orcutt, as financial secretary, for the records of Local No. 950,
but Orcutt refused to surrender them. At Picher, Rogers and Or-
cutt went to a cafe with two other employees, Boyd and William-
son, and discussed difficulties the men were having working under
Foreman Wilson. Rogers, in his testimony, described part of the
conversation as follows :
He [Boyd] said, "Well, Rogers, you or some one will have
to take me out of this place or there is going to be trouble. I
am either going to kill Ed Wilson or he is going to kill me."
And I thought that was a lot of bluff conversation; I didn't
take it so seriously, but we went along with the conversation
and I drifted back into the Union, [italics supplied] and they
gave me a little dope on the membership and how they were
getting on with it. They wasn't doing so good. It seemed
like their president, Mr. Stevens, J. D. Stevens, or "Red" I
think they called him, he had gone South and they were a little
616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shy on some initiation funds, I think they said. So they had
before about decided, or said they was giving it up, and made
me this proposition, that if I would get Williamson more money,
and get Boyd transferred, that they would roll up their charter
and sent it back to Tulsa. Well, it sounded kind of absurd to
me and I told them I did not have any promises to make. I
was sent down there to investigate and not to make promises,
but I would make my recommendations when I came back to
Joplin, and I did. And I recommended that Boyd be trans-
ferred and Williamson, in my estimation was a second-class
lineman, but his pay probably should be increased. I believe
that is all.
Although Rogers denied that he had asked these men to surrender
their charter, or promised them that he would make the desired
recommendations if they would "drop out of" Local No. 950, it is
clear from his own testimony, set out above, that such was the un-
derstanding between him and the men. Rogers' activities in this
connection were consistent with his later activities in procuring
resignations from I. B. E. W. members.
The I. B. E. W. started a membership drive in April 1937, and
Orcutt joined on April 21. In August 1937 Rogers asked Orcutt
why he had joined and inquired of him what was required to "bust
up the union again." Orcutt told Rogers that it would "take a
substantial raise and stop working on holidays, nights and Sun-
days, when it was unnecessary." Rogers then informed Orcutt
that a man was needed at Aurora, Missouri, and assured Orcutt that
he could do the work there. Orcutt said that he would accept the
transfer. Before the transfer was effectuated, Rogers warned Or-
cutt not to "talk union" to the employees at Aurora, threatening to
discharge him if he did, and Orcutt promised that he would not.
Orcutt was soon thereafter sent to Aurora to work under Foreman
Wegman. Although Rogers denied that he inquired of Orcutt what
was required to "bust up the union" or that he warned Orcutt not
to "talk union" we reject his denial, finding the inquiry and warning
to be consistent with his other activities designed to cause defection
from the I. B. E. W.
While Orcutt was assigned to work at Aurora he was sent to work
temporarily at Greenfield and White River Dam, Missouri, to do
substation work. It was at Greenfield, as discussed above in Section
III, A, 1, that his foreman, Glenn Watkins, procured his resigna-
tion from the I. B. E. W. Orcutt was also sent out on a tree-
trimming job near Ash Grove, Missouri, where he worked for
approximately one month. While this work was somewhat unusual
for a substation electrician such as Orcutt, there does not appear to
have been any discrimination in assigning him to this work.
EMPIRE DISTRICT ELECTRIC COMPANY 617
Orcutt was transferred back to Columbus, Kansas, in March 1938,
and was there placed at his regular duties. The evidence does not
show that this last transfer was discriminatory.
It thus appears that the respondent, in its efforts to "break up
the union," transferred Orcutt from Picher to Columbus and to
Aurora. By so doing, we find that the respondent discriminated
with respect to the terms and conditions of employment of Orcutt
and thereby discouraged membership in a labor organization. Or-
cutt's acquiescence in the transfers does not mitigate the effect of
the respondent's acts.
We further find that by Rogers' continued inquiries into the
affairs of the I. B. E. W. and Local No. 950, by his constant efforts
to "break up the union," and by the respondent's transferring Or-
cutt for that purpose, the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed to
them by Section 7 of the Act.
T. 7'. Alexander entered the respondent's employ in June 1933.
At the time of the hearing he was employed as a line foreman. He
joined the I. B. E. W. on April 10, 1937, at which time he was fore-
man of a "hot-stick" 7 gang in Joplin, Missouri. On April 12 he
was invited to dinner by his supervisor, Oscar Brown. Alexander's
version of the conversation which then 'took place between him and
Brown is, briefly, as follows: Brown said that he understood that a
union organizational meeting had been held on April 10 and asked
Alexander to explain. Alexander admitted having attended the
meeting. Brown then exclaimed : "What in the hell is the matter
with you fellows; what are you all turning against me for"? Alex-
ander denied that they were turning against him and assured Brown
of the loyalty of his men. Brown went oil: "... You sneak out
and get lined up with this damned C. I. O. You should all be smart
enough to stay out of it." Alexander informed Brown that the
I. B. E. W. was not affiliated with the "C. I. 0." Brown then in-
quired of Alexander as to who attended the meeting. Alexander
refused to make any statement. Brown accused Alexander of try-
ing to organize the "boys." Alexander denied any such activities.
Brown then said, "Well, this thing came up about two years ago . . .
I don't know but what I would have been a damn sight better off
if I had fired you then." Brown went on to say that he was
opposed to organized labor and that the respondent "wouldn't stand
for organized labor."
Brown, in testifying, admitted talking with Alexander about
meeting of employees but denied knowing beforehand that the meet-
° A hot stick is a special tool used in working on high voltage lines.
618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing pertained to a labor union. Brown explained his interest as
follows:
.. . I was merely after the information as to what this
meeting had been called for and what the boys were doing that
I couldn't give them without them holding a meeting out some-
where without my knowledge; that I thought I had always
treated them all right, and if they were holding some kind of
a meeting to try to get something, it wasn't necessary for them
to do that; that they were always welcome to come in to see me
at any time about anything that they wanted.
Brown denied having accused the men of turning against him or
having asked Alexander why he "lined up with this C. I. O. outfit."
We accept Alexander's version of the conversation. As shown
above in Section III, A, 2, Brown, together with Spracklen, engaged
in surveillance of the I. B. E. W.'s meetings. Brown also was active
in obtaining the resignation of I. B. E. W. members. Under the cir-
cumstances, we are unable to credit Brown's denials or his account
of his conversation with Alexander.
On May 8, 1937, Brown informed Alexander that he was to be
transferred to the Eastern Division under Supervisor Rogers.
Alexander testified that he asked the reason for the transfer and was
told by Brown :
Well you got yourself in a hell of a mess here with this
union . . . If you go up there, it will give you a chance to,
get out of it, square yourself.
Alexander testified that he asked Brown whether he thought that it
was "the proper thing . . . to do" and when Brown said that he
thought that it was "the place" for him, Alexander agreed to the
transfer.
Brown, in his testimony, denied telling Alexander that he was
being transferred because of his getting "in a hell of a mess with the
union." According to Brown, Supervisor Rogers was organizing
a crew to do maintenance work in the Eastern Division and had re-
quested Alexander's transfer to him because of his qualifications to
handle high-voltage lines. Brown stated that Alexander seemed
"rather glad to go." In view of our findings as to Brown's hostility
to the I. B. E. W. and his knowledge of Alexander's activities there-
in, we credit Alexander's testimony as to Brown's statement.
The work in the Eastern Division to which Alexander was as-
signed, herein called the Warsaw project,8 consisted of reconditioning
the poles in a transmission line which runs between Springfield and
8It was so called by most of the witnesses. Warsaw , Missouri , out of which the crew
worked part of the time , is located near the Spiingfield-Sedalia transmission line
EMPIRE DISTRICT ELECTRIC COMPANY 619
Sedalia, Missouri. While it appears that the work on this project
was necessary and required the services of at least one man skilled,
as was Alexander, in handling "hot" or high-voltage lines, it is clear
that Alexander was transferred there because of his union activities.
Alexander worked on the Warsaw project until the end of 1937
when he was transferred to Webb City, Missouri, where he was
placed in charge of maintenance and distribution. At the time of
the hearing he was still at Webb City.
We find that the respondent, by transferring Alexander to War-
saw, discriminated with respect to the terms and conditions of his
employment and thereby discouraged membership in a labor
organization.
We further find that, by transferring Alexander and by Brown's
anti-union statements, the respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed to
them by Section 7 of the Act.
Clay Marshall did not testify at the hearing. He entered the re-
spondent's employ on a temporary basis in January 1937 and joined
the I. B. E. W. in April 1937. In May 1937 he was i ransferred
from the Central Division to the Warsaw project to work under
Alexander. According to Alexander, Marshall, whose family lived
near the Warsaw project, had requested Alexander to have him
transferred there.
We find that the respondent did not discriminate in regard to the
terms or conditions of Marshall's employment to discourage mem-
bership in a labor organization.
Mitchell Vaughan was first employed by the respondent on Feb-
ruary 8, 1937, on a temporary basis, and was assigned to the Central
Division to work under Foreman Lee Mills as a second-class lineman.
He joined the I. B. E. W. on April 17, 1937. A few days later, Mills
made the comment to Vaughan and other members of the crew that
he thought that they "had done the wrong thing" by joining the
I. B. E. W. On May 6 Supervisor Rogers of the Eastern Division,
questioned Vaughan concerning his membership in the I. B. E. W.
and disparaged attempts to organize the respondent's employees:
About a week later Vaughan was told by Mills that he was being
transferred to Warsaw to work with Marshall under Alexander.
The respondent explains Vaughan's transfer to Warsaw as having
been necessary to avoid laying him off. While the circumstances
surrounding Vaughan's transfer are not free from doubt, from the
evidence as a whole we do not find that his union membership was
the cause thereof or that by,transferring Vaughan the respondent
discriminated in regard to the terms or conditions of his employment
to discourage membership in a labor organization.
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find, however, that by Mills' and Rogers' disparaging remarks
concerning employees' organizing and the I. B. E. W., the respond-
ent interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed to them by Section 7 of the Act.
Claude Biddlecome entered the respondent's employ in 1926. At
the time of the hearing and for some years prior thereto he was em-
ployed as a first-class lineman. He joined the I. B. E. W. in Sep-
tember or October 1937, while working at Aurora, Missouri, under
Foreman A. L. Provance and Supervisor Rogers. A day or two
after Biddlecome had joined the I. B. E. W., Provance inquired of
him as to whether he had. Biddlecome at first denied it but later
admitted joining.
Provance testified that after Biddlecome joined the I. B. E. W.
he created a disturbance among the employees as a result of which
the men were "squabbling" and quarreling about the "union" and
that Provance decided to transfer Biddlecome away from the other
employees. Rogers testified that Provance informed him of Biddle-
come's joining the I. B. E. W. and of his becoming quarrelsome.
According to Rogers, he told Biddlecome a transfer would be neces-
sary and gave him his choice of places; Biddlecome agreed to work
at any place but Picher, and Rogers transferred him to Warsaw
where he worked under Alexander. Biddlecome testified that some
time after he had joined the I. B. E. W., Rogers asked him whether
he would "drop the union." When Biddlecome refused, Rogers said,
"We are going to have to put you up on the creosote job [at Warsaw]
then." In view of Rogers' activities in procuring Bicldlecome's resig-
nation from the I. B. E. «T., as set out in Section III, A, 1, above, and
his other activities with a view to getting employees to "drop the
union," we credit Biclcllecome's version of his conversation with
Rogers.
Biddlecome was later transferred back to Aurora and when the
Warsaw project, which was closed down at the end of 1937, was
reopened in May 1938, Biddlecome was reassigned to it. At the
time of the hearing he was still working there. He desires to be
transferred back to Aurora, where his home and family are located.
Prior to Biddlecome's last transfer to Warsaw and when told
that it was the respondent's intention so to transfer him, he expressed
some doubt as to whether he would accept the transfer. In talking
about it with Provance, Biddlecome testified, he asked why a par-
ticular employee who was junior to him in point of service was not
sent to Warsaw, and Provance, in reply, pointed out that this em-
ployee was a foreman and had "enough sense to stay in the clear."
Provance neither explained nor denied making this statement. We
credit Biddlecome's testimony and find that Provance in saying "stay
in the clear" referred to avoiding participation in union activities.
EMPIRE DISTRICT ELECTRIC COMPANY . 621
From all the evidence, we find that the respondent, in transferring
Biddlecome to the Warsaw project both in 1937 and in 1938, discrim-
inated as to the terms and conditions of his employment because of his
membership and activities in the I. B. E. W. and thereby discouraged
membership in the I. B. E. W. and interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
Clyde Dilworth, started to work for the respondent in 1925. Early
in 1937 Dilworth was regularly sent out to all parts of the respondent's
system to check transformers and equipment bushings . In May 1937,
soon after Dilworth joined the I. B. E. W., he was told by O. A. Pendle-
ton, the respondent 's transmission engineer, under whose supervision
Dilworth worked, that the respondent was curtailing expenses and
was not going to send Dilworth or any one else out of town any more.
For a while thereafter Dilworth worked on bushing records, pre-
paring a reference book. Between June 20 and 30, 1937, he was trans-
ferred from Pendleton 's division to the Central Division under Super-
visor Brown. After his transfer Dilworth was obliged to do general
construction work and only occasionally was permitted to do electrical
work, for which he was trained and qualified . Following his transfer,
Dilworth received an increase in pay of $5 per month.
Pendleton testified that in June 1937 his division was not busy and
that because Supervisor Brown needed men to work on a substation
which was under construction, Dilworth's transfer was arranged.
Pendleton further testified that it was his intention to take Dilworth
back into his division when work increased. Pendleton stated that
he himself had clone manual work in constructing a substation subse-
quent to Dilworth's transfer. Dilworth admitted that after his transfer
most of the other men with whom he had formerly worked were also
obliged to do construction work.
From all the evidence we find that the respondent did not discrimina-
torily transfer Clyde Dilworth to discourage membership in a labor
organization.
2. The alleged discriminatory lay-offs
The complaint alleges that four named employees were laid off out
of seniority . We shall discuss their cases seriatim . Of the four factors
considered by the respondent in laying off its men, seniority was con-
sidered by it to be the least important.9
Mitchell Vaughan, while working at Warsaw subsequent to his trans-
fer there ,'° was laid off on August 20, 1937, by Foreman Alexander,
under orders from Rogers , and was replaced by Biddlecome, a union
9According to Spracklen the other factors were ( 1) ability to get along with the pub-
lic ; (2) quantity of work accomplished ; and (3 ) quality of work
10 Discussed above in Section III, B, 1
622° DECISIONS OF NATIONAL LABOR RELATIONS BOARD
member, who had considerable seniority over Vaughan. At the time it
laid off Vaughan, the respondent also laid off at least three other
employees.
Vaughan testified that he had heard that there were two men in his
division who had less seniority than he but who were retained by the
respondent. The respondent's records demonstrate, however, that the
two men named by Vaughan were senior to him in point of service.
From all the evidence, we find that Vaughan was not discriminatorily
laid off.
Ned Barkley is alleged in the complaint to have been discriminatorily
(1) laid off out of seniority, (2) discharged, and (3) refused employ-
ment in the respondent's generating plant at Riverton, Kansas.
Barkley first applied for work in January 1937, at the respondent's
generating plant in Riverton. He was there given considerable en-
couragement by George Irey, the superintendent, and E. J. Drewelow,
the chief engineer, and told that permission to hire him would have
to be obtained from the respondent's main office. Irey told Barkley
not to refuse any work which might become available to him pending
the respondent's approving the new position at Riverton.
Barkley then applied for and obtained a job under Walter Picker-
ing in the respondent's distribution department, starting work there
on February 5, 1937, as a meter tester. In March Barkley received a
letter from Drewelow, notifying him that his application for work
at the Riverton plant had been approved. Barkley went to see
Drewelow and Irey and told them that he had obtained other employ-
ment with the respondent but that he would prefer to work at the
Riverton plant. The evidence is in conflict as to the nature of
Drewelow's reply, Barkley testifying that Drewelow said that he
would try to arrange the transfer and Drewelow, himself, testify-
ing that he urged Barkley to work hard at the job he had but gave
him no encouragement concerning any immediate transfer. Since
transfers from the distribution department to the generating plant
were of unusual occurrence, we accept Drewelow's testimony in this
regard.
Barkley joined the I. B. E. W. on May 5, 1937, and took an active
part in union affairs. Sometime in August, Pickering questioned
Barkley about his union membership asking him whether he had
joined because of dissatisfaction with his job. Near the end of
August, Pickering informed Barkley that he was to be laid off be-
cause the respondent was curtailing expenses, but that he would keep
him on the pay roll for 10 days longer than Superintendent Spracklen
had ordered. At the end of that time, Barkley was laid off. His
place was taken by a man 3 years his senior in point of service.
EMPIRE DISTRICT ELECTRIC COMPANY 623
Barkley admitted at the hearing that he was the youngest man doing
his type of work to be laid off at that time but complained that four
individuals in other departments were retained although having less
seniority than he. One of these was a stenographer. Barkley
admitted that he was not qualified to do such work. Another did
drafting work. Barkley admitted having little drafting experience.
Another operated a telephone switchboard, work at which Barkley
admitted having had no practical experience. The last, an employee
named Brown, did accounting and file work, which Barkley felt that
he could do. Brown received less pay than Barkley and was himself
laid off a few months later. It has already been pointed out that the
respondent did not follow a strict policy of seniority in the matter
of lay-offs. From all the evidence we find that Barkley was not dis-
criminatorily laid off out of seniority or discharged.
A few days after being laid off, Barkley went to the Riverton plant
to inquire regarding the job for which he had previously applied. Ac-
cording to Barkley, Irey told him that the job had not been filled. Irey
testified, however, that the job had been filled in June 1937 and that
he had so informed Barkley. The respondent's records show that a
man was employed in June 1937 at the kind of work for which
Barkley had previously applied.
From all the evidence we find that the respondent did not dis-
criminatorily refuse to employ Barkley at the Riverton plant.
Fred Walters entered the respondent's employ in July 1935. He
worked as a meter tester under Foreman Pickering. He joined the
I. B. E. W. in May 1937 and was active therein to the extent, at least,
of attending meetings when he was in town.
Walters was laid off on October 30, 1937, at the same time that two
other employees who do not appear to have been members of the
I. B. E. W. were laid off. He complains that an employee, named
Buchanan, who had less seniority, was retained in preference to him.
The respondent admits that such was the case, explaining that
Buchanan was held in high regard by Pickering at whose request
Buchanan was put for a while at drafting work. The respondent
laid off Buchanan in February 1938.
From all the evidence we find that the respondent did not discrim-
inatorily lay off Fred Walters.
Jack Pritchard entered the respondent's employ early in February
1937. He worked part of the time on damaged lines but mostly on
new construction work. He joined the I. B. E. W. in April 1937 and
attended union meetings regularly.
Pritchard was laid off August 13, 1937. He complains that Mitchell
Vaughan and Clay Marshall were retained in preference to him al-
though having less seniority than he. As stated above, Vaughan and
Marshall were also members of the I. B. E. W., and they were them-
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
selves laid off a short time after Pritchard. We note also that while
Pritchard had seniority over Vaughan by 1 week, Marshall had 3
weeks' seniority over Pritchard.
From all the evidence we find that the respondent did not dis-
criminatorily lay off Jack Pritchard.
3. The alleged discriminatory discharges
B. D. Stevens, although named in the complaint, did not testify in
his own behalf. He was employed by the respondent as a lineman
at Picher, Oklahoma, under Foreman Wilson. Wilson laid him off
in November 1935 as part of a general curtailment of personnel.
Stevens was a charter member and president of Local No. 950.
There is evidence that Wilson disliked him, telling the other members
of Local No. 950 that they had made a poor choice in electing Stevens
president. Wilson, in his testimony, spoke disparagingly of Stevens,
accusing him of 'serious personal deficiencies. While it appears that
Wilson harbored personal animosity towards Stevens, the evidence
as a whole does not support a finding that Wilson laid off Stevens
because of his union activities. We find, from all the evidence, that
Stevens was not discriminatorily discharged.
William S. Monson 1Y first worked for the respondent in August
1934. He was discharged by Foreman Wilson on December 31, 1936.
Monson was a charter member of Local No. 950 and for a while acted
as its recording secretary.
Monson testified that after the organization of Local No. 950 Wilson
was more difficult to work under and repeatedly spoke disparagingly
of that organization. According to Monson, in December 1936 Wil-
son told him that all he did was "just talk" and that Wilson was
obliged to "let him go to dusty." Monson explained that Wilson
meant thereby, "Just down the road, talking to myself, I guess."
Monson further testified that Wilson told him that he had no coin-
plaint concerning his work, aside from his talking, and that Wilson
gave him his regular check and told him that after he had paid his
bills, he, Wilson, would give him another check for 2 weeks in
advance.
Wilson testified that Monson's discharge was the consummation of
it long series of difficulties with Monson ; that he had received
numerous complaints from Monson's creditors; that he had been called
repeatedly by Monson's wife "to quiet family disturbances at Monson's
house"; that he had received complaints regarding Monson's conduct
toward the public; and that Monson quarreled with other members
of the crew. Wilson further testified that whenever he reproached
u Incorrectly spelled in the complaint : "Munson."
EMPIRE DISTRICT ELECTRIC COMPANY 625
Monson the latter retorted, "Well, now, listen, if you don't like my
work, pay me." A few days before Monson's discharge Wilson stated
that Gang Foreman Clanton complained to him of his inability to "get
along with" Monson. Wilson then told Clanton that if Monson could
not get along with the men the respondent would be obliged to "let
him go." Soon thereafter, according to Wilson, he told Monson that
he had had more trouble with him than with any other man who had
ever worked under him and that he did not know what to do about it.
Monson, according to Wilson, then said, "I will tell you what to do.
Pay me." Wilson did.
Monson admitted that Wilson had on one occasion volunteered to
lend him money with which to pay a debt. He did not deny that his
conduct toward the public had been the cause of complaints, and
denied, but qualifiedly, Wilson's other charges against him.
Monson testified that for a while he had acted as recording secretary
of Local No. 950 and had otherwise been active in the Union. He did
not state, however, when these activities had occurred. It appears,
however, that such activities occurred a considerable time prior to his
discharge.
While the circumstances surrounding Monson's discharge are not
free from doubt, from the evidence as a whole we do not find that
Monson was discharged because of his membership or activities in
Local No. 950.
Herschel Taboi° started to work for the respondent in 1922 and was
discharged on May 6, 1937. He joined the I. B. F. W. in April 1937
and shortly thereafter Supervisor Brown inquired of him regarding
his membership therein.
On the day of his discharge, Tabor was putting on cross arms at
the top of a pole where there were 2,300-volt risers. He had forgotten
to take with him his rubber gloves, which the respondent required its
employees to wear when working on lines of such high voltage. He
called to a fellow workman who was on the ground some distance
away and asked him to bring his gloves. Foreman Mills shouted to
Tabor to get his gloves himself. Tabor did not get them, but went
about his work and handled the 2,300-volt risers without wearing
rubber gloves. Mills called Tabor down off the pole and told him
that he was discharged for his violation of the respondent's safety rules.
Tabor had been severely reprimanded in March 1937 for working
without rubber gloves. Tabor claimed that others had also violated
the safety rules. It was shown, however, that several fatalities among
the respondent's employees had resulted from .their working on high
voltage lines and that the respondent had been attempting for a period
of almost 2 years to compel its employees to observe the safety rules.
From all the evidence we find that the respondent did not dis-
criminatorily discharge Herschel Tabor.
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent as set forth in Section III, above,
occurring in connection with the operations of the respondent
described in Section I, above, have a close, intimate , and substantial
relation to trade, traffic , and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has engaged in certain unfair
labor practices . We shall order the respondent to cease and desist
therefrom . We shall also order the respondent to take certain affirm-
ative action which we find will effectuate the policies of the Act.
We have found that the respondent, because of their union mem-
bership and activities , has discriminated in regard to the terms and
conditions of employment of Hugh Orcutt, T. T. Alexander, and
Claude Biddlecome , thereby discouraging membership in a labor
organization.
We have found that Orcutt's transfer to Columbus, Kansas, where
he was working at the time of the hearing , was not discriminatory.
Orcutt desires to be transferred to Joplin, Missouri , although he
admits not having worked there since 1931, which was prior to the
start of his last term of employment with the respondent. We see
no basis for ordering Orcutt's transfer to Joplin. Orcutt received
the same salary after his transfers as prior thereto.
Alexander , at the time of the hearing , was working for the respond-
•ent at Webb City , Missouri , where he was in charge of maintenance
and distribution. Alexander stated at the hearing that he did not
consider his transfer to Webb City to have been discriminatory, but
expressed a desire to be transferred back to the "hot-stick" gang in
Joplin. Alexander had received $150 per month as foreman of the
"hot-stick" gang in Joplin. The man who replaced him in Joplin
was, at the time of the hearing, receiving $145 per month. Alexan-
der at that time was receiving $160 per month. Alexander stated
that he did not wish to be transferred back to Joplin either at the
salary he received when formerly there or at the salary of his suc-
cessor. Under such circumstances, we see no basis for ordering
Alexander's transfer to Joplin.
Biddlecome desires to be transferred back to Aurora where he was
working before being transferred to the Warsaw project and where
his home and family are located. In order to effectuate the policies
of the Act we shall order the respondent to offer to Biddlecome imme-
diate reinstatement to his former or a substantially equivalent posi-
tion at Aurora , without prejudice to his seniority and other rights
EMPIRE DISTRICT ELECTRIC COMPANY 627
and privileges. We shall also order the respondent to make Biddle-
come whole for any loss of pay he may have suffered by reason of
his discriminatory transfer by payment to him of a sum of money
equal to the amount which he normally would have earned at Aurora
from the date of his first transfer to Warsaw to the date of the
respondent's offer of reinstatement to him to a position in Aurora,
less his net earnings 12 during said period.
Since we have found that the respondent has not discriminated
in regard to the hire or tenure of employment or any term or con-
dition of employment of Marshall, Vaughan, Dilworth, Barkley,
Walters, Pritchard. Stevens, Monson, or Tabor, we shall dismiss the
complaint as to them. We shall also order the complaint dismissed
with respect to the allegation that the respondent conducted parties
on the meeting nights of the I. B. E. W. for the purpose of inducing
employees to stay away from such meetings.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Local Union
B-95 is a labor organization, within the meaning of Section 2 (5)
of the Act.
2. International Brotherhood of Electrical Workers, Local Union
95, and International Brotherhood of Electrical Workers, Local
Union 950, affiliated with the American Federation of Labor, were
labor organizations within the meaning of Section 2 (5) of the Act.
3. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (1) of the Act.
4. By discriminating in regard to the terms and conditions of
employment of Hugh Orcutt, T. T. Alexander, and Claude Biddle-
come, and thereby discouraging membership in a labor organization,
the respondent has engaged in and is engaging in unfair labor prac-
tices, within the meaning of Section 8 (3) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
12 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by Biddlecome in connection with his working at Warsaw, away from
his home in Aurora , which would not have been incurred but for his unlawful transfer
See Hatter of Crossett Lumber Company and United Brotherhood of Carpenters and
Jouieis of America, Lumber and Sawmill Workers Union , Local t590, 8 N L. R B, 440
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
respondent , Empire District Electric Company, Joplin, Missouri,
and its officers , agents, successors , and assigns shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Electrical Workers, Local Union B-95, or any other labor organiza-
tion of its employees, by transferring its employees to less desirable
positions or in any other manner discriminating in regard to their
hire or tenure of employment or any term or condition of
employment;
(b) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self-organization, to
form, join, or assist labor organizations , to bargain collectively
through representatives of their own choosing , and to engage in
concerted activities for the purposes of collective bargaining or other
mutual aid or protection , as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Offer to Claude Biddlecome immediate and full reinstatement
to his former or a substantially equivalent position at Aurora,
Missouri, without prejudice to his seniority or other rights and
privileges;
(b) Make whole the said Claude Biddlecome for any loss of pay
he may have suffered by reason of the respondent 's discrimination in
regard to the terms and conditions of his employment by payment to
him of a sum of money equal to that which he normally would have
earned at Aurora, Missouri , from the date of such discrimination to
the date of the respondent 's offer of reinstatement , less his net earn-
ings 13 during said period;
(c) Immediately post in conspicuous places in each of its plants
and offices and maintain for a period of at least sixty (60) consecu-
tive days, notices to its employees stating ( 1) that the respondent
will cease and desist in the manner set forth in paragraph 1 (a) and
(b), and that it will take the affirmative action set forth in paragraph
2 (a) and (b) of this Order; and (2) that the respondent's employees
are free to become or remain members of International Brotherhood
of Electrical Workers, Local Union B-95, and that the respondent
will not discriminate against any employee because of membership
or activity in that organization ;
13 See footnote 12, supra
EMPIRE DISTRICT ELECTRIC COMPANY 629
(d) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, as amended, be, and it
hereby is, dismissed in so far as it alleges that the respondent has
engaged in unfair labor practices within the meaning of Section 8
(3) of the Act with respect to Clay Marshall, Mitchell Vaughan,
Clyde Dilworth, Ned Barkley, Fred Walters, Jack Pritchard, B. D.
Stevens, William Monson, and Herschel Tabor.
AND IT IS FURTHER ORDERED that the complaint, as amended, be,
and it hereby is, dismissed with respect to the allegation contained
therein that the respondent engaged in unfair labor practices within
the meaning of Section 8 (1) of the National Labor Relations Act by
conducting certain parties for the purpose of inducing employees to
stay away from union meetings.
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