Jackson Electric Membership Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1953

106 N.L.R.B. 1019 (N.L.R.B. 1953)

JACKSON ELECTRIC MEMBERSHIP CORPORATION 1019
JACKSON ELECTRIC MEMBERSHIP CORPORATION and
LOCAL UNION NO. 84, INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL. Cases Nos. 10-CA-1395
and 10-CA-1552. August 26, 1953
DECISION AND ORDER
On April 2, 1953, Trial Examiner W . Gerard Ryan issued his
Intermediate Report in the above - entitled proceeding , finding
that the Respondent had engaged in and was engaging in certain
unfair labor practices , and recommending that it cease and
desist therefrom and take certain affirmative action, as set
forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not en-
gaged in certain other alleged unfair labor practices and recom-
mended that the complaint be dismissed with respect thereto.
Thereafter , the Respondent and the General Counsel filed
exceptions to the Intermediate Report and supporting briefs. i
The Board 2 has reviewed the rulings made by the Trial
Examiner at the hearings and finds that no prejudicial error
was committed . The rulings are hereby affirmed. The Board
has considered the Intermediate Report, the exceptions and
briefs, and the entire record in the case , and hereby adopts the
findings , conclusions , and recommendations of the Trial Ex-
aminer only insofar as they are consistent with our decision
herein.
The complaint in this proceeding alleged , inter alia , that the
Respondent on or about October 18, 1951, and June 30, 1952,
discriminatorily discharged and thereafter failed and refused
to reinstate Matthews , Benson , Glenn, Jr., and Miller. The
Trial Examiner found that the General Counsel failed to prove
by the required preponderance of evidence that the Respondent
violated the Act with respect to Benson, Glenn, Jr., and Miller,
and recommended that the allegations of the complaint with
reference to them be dismissed . He found , however, that
Matthews ' discharge was discriminatory and violative of Sec-
tion 8 (a) (3) and (1) of the Act. The Respondent excepted to
this finding . For the reasons hereinafter stated , we find merit
in the Respondent ' s exceptions.
At all times hereinafter mentioned , Matthews was a construc-
tion crew foreman . While engaged in such duties, he joined the
Union and was active in its organizational activities . When the
Respondent learned that Matthews had taken a leading part in
1 The Respondent also filed a "Memorandum on behalf of Respondent to Correct Errors in
Statement of Fact in Brief by the General Counsel in Support of its Exceptions." The General
Counsel excepted to reception of this memorandum, contending that it constituted a reply
brief, not permitted by the Rules and Regulations of the Board. We find the General Counsel's
exception immaterial as it has not been necessary to rely on this memorandum in reaching
our decision.
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers
in connection with this case to a three- member panel. [Members Houston , Styles, and
Peterson].
106 NLRB No 152.
1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such activities, it discharged him on October 18, 1951, for that
admitted reason . On March 11, 1952, the Board issued a De-
cision and Direction of Election 3 as a result of a representation
petition filed by the Union in which, inter alia , the Board held
that the construction crew foremen , including Matthews, were
not supervisors . Following the Board ' s decision and the election
which was conducted in accordance with it, which the Union won,
the Respondent prepared ajob description for all crew foremen,
and on April 8, 1952, it wrote Matthews offering to reinstate him
to his "former position of line crew foreman ." After some dis-
cussion between Matthews and management officials , Matthews
returned to work on April 14, 1952.
The Trial Examiner found that Matthews, after he was rein-
stated on April 14, 1952, was a supervisor within the meaning of
the Act. He also found that he was reinstated to his former
position . However , he concluded , in view of the Board ' s decision
in the representation proceedings issued on March 11, 1952,
that Matthews was not a supervisor and, in view of the Re-
spondent ' s admission that it discharged him on October 18,
1951, for engaging in union activities , it followed that his dis-
charge was discriminatory and violative of Section 8 (a) (3) and
(1) of the Act. The Trial Examiner , upon his own motion, in-
corporated the record of the representation case into the record
of the instant complaint ; evidence relating to Matthews'
supervisory status during the period prior to his reinstatement
on April 14, 1952, was adduced at the hearing in the complaint
case. As to the latter , he made no findings because he con-
sidered himself bound by the Board ' s findings in the represen-
tation case.
We have carefully examined the evidence relating to the
alleged supervisory status of the construction crew foremen
which had been adduced in the representation proceeding, and
are now of the opinion that the construction crew foremen, in-
cluding Matthews, should have been found to be supervisors
within the meaning of the Act. In reaching this conclusion, we
rely on the evidence in the representation proceeding that if a
construction crew foreman insisted that a man in his crew be
reprimanded , such recommendation would generally be followed;
that if labor crew foreman - -found to be supervisors in the
representation case decision - -worked with a construction crew,
they were under the authority of the construction crew foremen;
that Matthews, after at first denying, admitted that he had
signed pay receipts which designated him a line foreman; that
Matthews admitted he was responsible for the properperform-
ance of his crew's work; that he stated that if there was a
dispute among his crew members as to how a job should be
done, he made the final decision ; and that he directed laborers
assigned on occasion to work with his crew. 4
3Jackson Electric Membership Corporation, 98 NLRB No. 96.
4 We note, too, that the evidence as to Matthews' supervisory status adduced in the present
complaint case supports the conclusion reached by us herein as a result of reappraising the
representation proceeding evidence.
JACKSON ELECTRIC MEMBERSHIP CORPORATION 1021
Under the circumstances , we find that on October 18, 1951,
the date of Matthews ' discharge , and at all times material here-
in, Matthews was a supervisor within the meaning of the Act and,
unlike the Trial Examiner , therefore find that his discharge did
not violate Section 8 ( a) (3) and ( 1) of the Act.
As we agree with the Trial Examiner ' s findings that the Re-
spondent had not violated the Act with respect to Benson,
Glenn, Jr ., and Miller , we shall dismiss the complaint in its
entirety. 5
[The Board dismissed the complaint.]
5 In view of our decision herein finding the construction crew foremen to be supervisors
within the meaning of the Act , we shall also issue a separate supplemental order amending
the decision and certification in the representation proceeding to conform accordingly
Intermediate Report
STATEMENT OF THE CASE
Upon a charge filed by Local Union No . 84, International Brotherhood of Electrical Workers,
AFL, herein called the Union , the General Counsel of the National Labor Relations Board,
herein respectively called the General Counsel and the Board , by the Regional Director for the
Tenth Region (Atlanta , Georgia) issued a complaint on May 28 , 1952, against Jackson Electric
Membership Corporation , herein called the Respondent , (Case No. 10-CA-1395). Thereafter
upon the foregoing charge, another charge , and an amended charge filed by the Union, the Gen-
eral Counsel by the said Regional Director , issued a consolidated complaint on September 17,
1952 '(Case No 10 - CA-1552) against the Respondent alleging that the Respondent had engaged
in, and was engaging in, unfair labor practices affecting commerce , within the meaning of
Section (a) (1), (3), and (4) and Section 2 (6) and ( 7) of the National Labor Relations Act, as
amended , 61 Stat 136 , herein called the Act . Copies of the charge , complaint , and notice of
hearing in Case No 10-CA-1395 ; the charge , amended charge , consolidated complaint and
notice of hearing in Case No . 10-CA- 1552 were duly served upon the Respondent and the Union.
With respect to unfair labor practices , the consolidated complaint alleged in substance that
the Respondent , on or about October 18 , 1951 , and June 30 , 1952, discriminatorily discharged
and thereafter failed and refused to reinstate four named employees because of their member-
ship in and activities on beha lf of the Union, and because they engaged in concerted activities
with other employees for the purposes of collective bargaining and other mutual aid and pro-
tection, and for the further reason in the cases of two of the named employees that they
testified at a Board hearing in Case No 10 - RC-1640 2 The answer to the consolidated com-
plaint admitted certain allegations of the consolidated complaint but denied the commission of
any unfair labor practices , denied that it was in commerce within the meaning of the Act and
denied that the Union was qualified to file a charge and maintain proceedings before the Board
on the grounds that the Union had not complied with the requirements of Section 9 (f), (g), and
(h) of the Act at all times material herein
Pursuant to notice a hearing was held before me at Jefferson , Georgia, on October 6, 7, and
8, 1952. The General Counsel, the Respondent and the Union participated in the hearing and
were afforded full opportunity to be heard , to examine and cross -examine witnesses, and to
introduce evidence bearing upon the issues At the hearing the Respondent moved to dismiss
the consolidated complaint on the ground that the Union was not in compliance from July 28,
iOn the same day , the said Regional Director issued an order consolidating the above-
numbered cases.
2 Jackson Electric Membership Corporation and Local Union No. 84 , International Brother-
hood of Electrical Workers , AFL, 98 NLRB No. 96 . The parties in this case participated in
and were parties in the representation proceeding and will be hereinafter referred to as the
representation proceeding.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1952, to August 1, 1952. That motion upon which I reserved decision, is now denied since the
Union was in full compliance at the time when the consolidated complaint was issued. $
At the hearing, the Respondent's unopposed motion to strike paragraph 7 of the consolidated
complaint was granted. Respondent's motion to strike paragraphs 4, 5, and 6 of the consoli-
dated complaint was denied at the close of the General Counsel's case. At the conclusion of
the evidence, the Respondent again moved to strike said paragraphs 4, 5, and 6 and I reserved
decision thereon The motion is disposed of in accordance with the findings and conclusions
hereinafter set forth. The General Counsel participated in oral argument and the Respondent
has filed a brief.
Upon the entire record in the case, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT 4
1. THE BUSINESS OF THE RESPONDENT
The Respondent is now, and at all times material herein has been a corporation organized
under and existing by virtue of the laws of the State of Georgia, maintaining its principal office
and place of business at Jefferson, Georgia, where it is engaged in the distribution of electric
power to consumers in Georgia. During the same period of time, the Respondent made total
sales of electric power valued in excess of $400,000, said power being distributed to farms
and homes, to the American Telephone and Telegraph Company in Jefferson, Georgia, the
airport and the Seaboard Airline Railroad in Winder, and Lawrenceville, Georgia, and the
Gainesville Midland Railroad at Belmont, Georgia The Board has asserted'jurisdiction over
the Respondent in its Decision and Direction of Election, dated March 11, 1952, in the repre-
sentation proceedings
IL THE ORGANIZATION INVOLVED
Local Union No. 84, International Brotherhood of Electrical Workers, AFL, is a labor
organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and background
The Respondent furnishes electric service to ruralareas in 8 counties in Georgia and by its
charter may operate only in rural areas and communities of less than 1,000 in population. Over
the past years, a great part of its activity has been the installation of main lines throughout the
various counties and branch lines to individual consumers. Three construction crews had been
maintained primarily for the construction of new lines and removal and relocation of lines
where necessary in widening highways 5 New installations comprise the greater part of the
work that has been done by the construction crews and it is not the type of activity which can
materially expand or even continue at the same volume indefinitely within the 8-county area
Main lines have now been constructed over most of the areas.
As above referred to, on March 11, 1952, the Board issued a Decision and Direction of
Election as a result of a representation petition filed by the Union in which, inter alia, the
Board held that Robert D Matthews, a construction crew foreman for the Respondent, was not
SN. L. R. B. v. Dant & Russell, Ltd., 344 U. S 375, holding that a complaint may properly
issue at a time when the charging union is in full compliance notwithstanding that there was
not full compliance when the charge was filed.
4 The record herein includes the record in the representation case. The General Counsel
and the Respondent introduced further evidence regarding the supervisory status of crew-
foremen prior to April 1952 and whether the Respondent is engaged in commerce within the
meaning of the Act. I make no findings on such further evidence with respect to the status of
crew-foremen prior to April 1952 nor on the question of jurisdiction since I consider myself
bound by the Board's decision in the representation proceedings.
SService calls are handled by a service crew and in midsummer temporary labor crews
are employed consisting of agricultural workers during the season when there is no work for
them on the farms.
JACKSON ELECTRIC MEMBERSHIP CORPORATION 1023
a supervisor within the meaning of the Act and included him within the unit found by the Board
to be appropriate. In that respect the Board stated:
Upon the present record, we find that, while the construction crew foremen have authority
to direct the work of the members of their crews, such direction is merely routine, and
does not involve sufficient exercise of independent judgment to constitute them super-
visors within the meaning of the Act. We find further that these foremen do not have any
other supervisory powers, and we will therefore include them in the unit.
In the election which was held on March 25, 1952, 25 votes were case for the Union and 11
against the Union.
B. The violations of the Act
Robert D Matthews
The consolidated complaint alleged that Matthews was discharged on October 18, 1951, and
thereafter refused reinstatement because of his membershir in, and activities on behalf of, the
Union and because he engaged in concerted activities with other employees for the purposes
of collective bargaining and other mutual aid and protection.
Matthews was employed by the Respondent in his first period of employment from August 19,
1942, to October 18, 1951 During that period he worked at various jobs but his longest ex-
perience was in charge of a construction crew. While he was in charge of the construction
crew he joined the Union and took a leading part in the organizational activities of the Union.
The Respondent inquired from certain representative citizens in the area to obtain information
as to who was responsible for such activities on behalf of the Union (The Respondent, how-
ever, did not question any of its employees ) Learning that Matthews was a leader in the
movement, the Respondent discharged him on October 18, 1951, because of his activities for
and in behalf of the Union. The Respondent does not dispute the fact that it discharged Matthews
for such activities 5 It maintains that as a foreman in charge of a construction crew which in
its belief thereby constituted him a supervisor within the meaning of the Act, his activities in
behalf of the Union were incompatible with his duties as a supervisor which could result in
serious legal consequences for the Respondent. After obtaining legal advice, the Respondent
discharged him Following the Board's decision on March11, 1952, in the representation pro-
ceedings and the subsequent election on March 25. 1952, which the Union won, a job description
was prepared by the Respondent in which each foreman was advised of his responsibilities and
duties and each foreman was required to sign that notice.? On April 8, 1952, the Respondent
wrote to Matthews, as follows:
This letter constitutes an offer to reinstate you to your former position of Line Crew
Foreman with the duties, responsibilities and salary which the position carries with it at
the present time. In the event you desire to accept this offer, please report not later than
Monday, April 14, 1952.
6On October 22, 1951, the Respondent wrote a letter of recommendation on behalf of
Matthews stating in the final paragraph "He was discharged because of his association with
efforts to organize a labor union among the workers of the Cooperative and assumed duties
which were unbecoming to a person identified as line foreman
7 The notice was dated April 1, 1952, and reads as follows:
TO ALL CREW FOREMAN
Effective immediately all Line Crew Foreman and all Labor Crew Foreman will be
completely responsible for the operation of their respective crews. It will be the duty of
each Foreman to direct the work of the employees under his supervision , to enforce all
rules and regulations of the Company , to hire new employees to fill vacancies , and where
necessary to discharge and discipline employees for failure to carry out instructions to
conform to rules of the Company , or to properly perform their duties.
All Line Crew Foremen and all Labor Crew Foremen will hereafter make monthly re-
ports to the Superintendent of Construction as to the operations of his crew and the per-
formance of employees under his supervision.
Superintendent of Construction
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If we do not hear from you within five days, it will be assumed that you do not desire to
accept this office (sic) of reinstatement
In reply thereto , Matthews conferred at the company office on April 13 , 1952, with Manager
R. J Kelly and Superintendent Frank Cranford at which time Kelly told Matthews that he did
not appreciate Matthews ' attitude in joining the Union without any word to Kelly; that Matthews
was not representing the role of management and that he was expected to represent manage-
ment . Kelly and Cranford then discussed the duties of foremen which they expected Matthews
to perform and told Matthews that if he returned to work it would be necessary for him to sign
the paper which they then gave to him , referred to supra , entitled "TO ALL CREW FOREMAN."
Matthews returned to work on the following day, April 14 , 1952; and, after consulting with the
Union, signed the paper , a few days later , adding over his signature " I have read the above." 8
Matthews testified that when he went back to his job it was with the understanding that he could
hire and fire; that he had no argument or anything to say about it, that he said he would take
the job under the conditions upon which the Respondent offered it, with no qualifications. From
April 14, 1952 , to June 30 , 1952 . Matthews performed his work as crew foreman , in the same
manner as he had worked previously to his discharge He did not, after April 14, 1952, hire,
fire , or recommend anyone to be hired or fired .9 On June 13, 1952 , Superintendent Cranford
told Matthews that when his crew returned that afternoon they were to take their vacation for
the last 2 weeks in June;10 and that there would be no more work thereafter since Cranford had
to lay off one of the construction crews. Later , that same afternoon , Manager Kelly told
Matthews and all the members of his crew that a layoff was necessary because of the shortage
of work and materials , especially copper , but, if the situation changed by the time vacation was
over , they would have work . When some inquired about their termination pay (30 days pay upon
quitting or discharge) Kelly informed them they were not being terminated and therefore were
not eligible for termination pay Matthews has not worked for the Respondent since June 13,
1952 (he received his vacation with pay for the last 2 weeks in June ) and has never thereafter
asked for his job.
Bennie B . Benson
The consolidated complaint alleged that the Respondent on June 30, 1952, discharged Benson
and thereafter refused to reinstate him because of his membership in and activities on behalf of
the Union and because he engaged in concerted activities with other employees for the purpose
of collective bargaining and other mutual aid and protection, in violation of Section 8 (a) (3) of
the Act, and for the further reason that he had testified in the representation proceedings, in
violation of Section 8 (a) (4) of the Act. Benson joined the Union, attended meetings, and testi-
fied in the representation proceedings That he was known to the Respondent as a member of
the Union is proved from the uncontradicted testimony of Benson that on the day before the
representation hearing (in December 1951) he showed his subpoena to Superintendent Cranford
who remarked "Yes, you are a damn big union man now, aren't you9" Benson testified that he
was assigned to different crews as an "extra" wherever someone was needed and that he
might do "most any job." He testified that after his first year he worked only a few days at a
time with Matthews' crew. He was unable to recall at the hearing whether he worked with
Matthews' crew from April 14 to April 24, 1952, or whether he worked with him during the
month of May 1952, but he was definite that his last 4 days of employment were with Matthews'
crew. Benson testified that after they were notified on June 13 that the crew would be laid off,
Manager Kelly told them there might be work after vacation and to return after vacation to find
out. When he returned after vacation, Kelly told him the situation had not changed and that there
was no work. Benson also testified that prior to his layoff there had never before been any
layoff of permanent employees because of scarcity of materials as work would be found to keep
8 The signatures of other foremen who signed between April 4 and April 11 followed an
acknowledgement in these words:
We, the undersigned , certify we have recieved ( sic) a copy of the above , have read,
understood the duties outlined and agree to perform them to the best of our abilities.
9It is the existence of the right to hire and fire, not necessarily the exercise of such right,
which determines supervisory status. N. L . R B. v. Leland- Gifford Co., 200 F. 2d 620 (C.A.1).
10 The vacation for Matthews' crew had been regularly scheduled for the last 2 weeks in
June, 2 or 3 months prior thereto
JACKSON ELECTRIC MEMBERSHIP CORPORATION 1025
the men busy. He testified further that at the time of the layoff the crew was moving some
poles out of the way of a new road which he thought would take about 2 weeks and there was
another 30-pole job which he thought would take about 3 weeks. He testified that he had always
before taken his vacation in September and had not taken it with any particular crew. He did
not know if Matthews' crew had its vacation at the same time as his in 1951. By letter dated
September 25, 1952, the Respondent offered Benson temporary employment as a groundman to
commence September 29; 1952, at Gainesville, Georgia. At the time of the hearing, he had not
made up his mind whether or not he would accept the job iiand would not do so until this case
is over. Benson began work for the Respondent in 1943 as a groundman and has always worked
as a groundman.
William R. Glenn, Jr.
The consolidated complaint alleged that the Respondent on June 30, 1952, discharged Glenn,
Jr., and thereafter refused to reinstate him because of his membership in and activities on
behalf of the Union and because he engaged in concerted activities with other employees for
the purposes of collective bargaining and other mutual aid and protection, in violation of Sec-
tion 8 (a) (3) of the Act; and for the further reason that he had testified in the representation
proceedings, in violation of Section 8 (a) (4) of the Act. Glenn, Jr., began work for the Re-
spondent on May 21, 1945, as a groundman and progressed through the years until he was
first-class lineman. He was the fifth or sixth oldest employee in terms of seniority. He joined
the Union and attended meetings ; testified in the representation case but did not solicit mem-
bers for the Union. He had been a member of Matthews' crew for approximately 18 months
before the layoff. He has not worked for the Respondent since returning from his vacation on
June 30, 1952. He testified that Manager Kelly told them on June 13 to come back after vaca-
tion, that there might be some work; and when he did return at that time, Kelly said the situa-
tion was unchanged. Glenn, Jr., testified that he discussed his insurance policy with the
Respondent 's office manager , R. J. Seymour , as to whether it would remain in force . Glenn,
Jr., was advised by letter from the Respondent dated July 29, 1952, that he had three options,
and to advise the Respondent his choice in the matter. Glenn, Jr., applied for and received the
cash surrender value of his policy.
Edward M Miller
The consolidated complaint alleged that the Respondent discharged Miller on June 30, 1952,
and thereafter failed and refused to reinstate him because of his membership in and activities
on behalf of the Union, and because he engaged in concerted activities with other employees for
the purposes of collective bargaining and other mutual aid and protection.
Miller was employed by the Respondent as agroundman since July 1949 or 1950, as a mem-
ber of Matthews' crew. He joined the Union and attended two or three meetings. He testified
that Matthews told him prior to vacation he was told by Manager Kelly that they were laid off
on account of shortage of materials and because the "crew was costing a little more." On or
about September 25, 1952, the Respondent offered him temporary employment which was ex-
pected to cease upon completion of the job unless further work came up, but at the time of the
hearing Miller had not accepted such offer.
The Respondent's defense
With respect to the unfair labor practices alleged in the complaint, the Respondent denied
that it had at any time discharged Matthews, Benson, Glenn, Jr , and Miller; or had committed
any unfair labor practice. It maintains that Matthews as crew-foreman was a supervisor
within the meaning of the Act when he was discharged on October 18, 1951, and at all times
subsequent thereto.
The Respondent introduced evidence through its manager, R. J. Kelly, that the number of
applications for service had decreased from 329 in the last calendar quarter for 1951 to 255
for the first calendar quarter in 1952 and to 185 for the second calendar quarter in 1952.
Kelly testified that as the workload decreased in new construction, construction crews were
assigned to odd jobs as fill-in work , e.g., salvaging copper wire from scrap material and gen-
eral maintenance work In the early part of June 1952, when there was not sufficient con-
u The General Counsel contends that the letter does not contain an offer of reinstatement to
the same or substantially equivalent employment.
1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
struction work available , Matthews ' crew was assigned to clear right of way. The houses to be
serviced were not yet wired so that the installation work could not be done at that time and
when a more urgent job developed the crew was reassigned to it . Kelly testified that the high-
way job of relocating poles on which Matthews' crew was working at the time of the layoff was
finished by convict labor because the cost of such relocation is payable by the county and the
county elected to do the work itself by using convict labor.
The amount of fill-in work for construction crews had increased materially during 1952.
On June 6, 1952, the Respondent ' s board of directors , at a regular meeting, were advised of
the economic situation following which the directors decided that one construction crew should
be laid off. P Kelly thereupon advised Superintendent Cranford to lay off the least efficient
crew. Kelly testified that when the average work-costs for labor for each crew were reviewed,
and after discussion with Cranford, he decided that Matthew's crew should be laid off. The
study of work-costs covered the period of 11 months prior to July 1, 1952. While Matthews
was not in charge of the crew between October 19, 1951, and April 13, 1952, for the period
during which he was in charge of the crew , his operating costs were higher than that for any
other foreman 13 Kelly testified that he had in the past called Matthews ' attention to his high
labor costs (which Matthews admitted during his testimony). Kelly further testified that he in-
formed Matthews ' crew they were laid off and not discharged and that they would be recalled
as soon as work became available ; that theRespondent since then has continued its operations
with two construction crews and has not hired any new employees nor replaced any of the
laid-off employees for the construction crews. Kelly testified that the board of directors made
no suggestion as to which construction crew be laid off, leaving that decision to him; and that
union membership , or lack of it , was not considered in the selection of the crew for the layoff.
He specifically denied that Benson or Glenn, Jr , were discharged because they had testified in
the representation proceedings . He testified further that Benson was a regular member of
Matthews ' crew and was always designated as operating in Matthews ' crew even though he
would be transferred to other types of work in the warehouse, helping engineers in survey
work , or reading meters He testified further that he had no knowledge that Miller was, or
was not , a member of the Union ; that Benson and Miller were offered work as soon as work,
although temporary, became available; and that he expects shortly to be in a position to offer
work to Glenn, Jr 14
Conclusions with Respect to the Discharge of Matthews on October 18, 1951
The record demonstrates and the Respondent admits that Matthews was discharged on
October 18, 1951, and not recalled to workuntil April 14, 1952, because of his union activities.
The Respondent defends its action on the ground that it considered Matthews as foreman of
one of its construction crews to be a supervisor within the meaning of the Act; that , acting
upon legal advice , and because it believed that his actions , as actions of a supervisor, might
ix The excerpt from the directors ' meeting on that date reads as follows:
A report on the status of construction to date was presented to the Board by L. Frank
Cranford, superintendent in charge of construction. On motion of O. L. Cato, seconded
by L. C. Seagraves and unanimously passed by the Board that Manager R. J. Kelly be
directed to Lay-Off one crew until such time as additional applications for service are
received to warrant the operation of three construction crews.
isForeman Wilkes was in charge of Matthews' crew from October 18, 1951, to April 14,
1952 (5 and 5/6 months). Except for that period, Matthews was in charge from July 1, 1951,
to June 1, 1952 (5 and 1/6 months). The average actual labor costs in excess of estimated
labor costs per month for the 11 months prior to June 1, 1952, were: Matthews' crew (5 and
1/6 months), $351.15; Davis' crew(11 months), $328 87; Vandiver's crew (11 months), $187.48:
Wilkes' crew (5 and 5/6 months), $138.18. Kelly testified that the costs of the crew while under
Matthews and Wilkes were added together and the resulting sum taken as the average for the
crew. It is obvious that such sum does not represent the average since it is necessary to
divide such sum by 2 in order to find the average.
i4 Upon receipt of the Respondent's offers of temporary work, Benson and Miller wrote to
Kelly inquiring how long such work would last. He replied by letters addressed to each that
the work offered did not at that time justify the establishment of a permanent position and
the position would be terminated upon completion of the job, unless additional work was
required.
JACKSON ELECTRIC MEMBERSHIP CORPORATION 1027
place the Respondent in legal jeopardy under the Act. However, in view of the Board's de-
cision in the representation proceedings rendered on March11, 1952, that Matthews was not a
supervisor, it follows that his discharge on the previous October 18 was discriminatory and
violative of Section 8 (a) (3) and (1) of the Act, and I so find. I further find that he was rein-
stated to his position as foreman of a construction crew and on April 14, 1952, was given
supervisory authority and became a supervisor within the meaning of the Act 15
Conclusion with Respect to the Alleged Discharges of
Benson, Glenn, Jr., and Miller on June 30, 1952
With respect to the alleged discharges of Benson, Glenn, Jr., and Miller, as violations of
Section 8 (a) (3) of the Act, and the alleged discharges of Benson and Glenn, Jr., as violations
of Section 8 a) (4) of the Act, the Respondent has offered persuasive proof that they were not
discharged and undisputed proof that a layoff of one construction crew on June 30, 1952, was
an economic necessity Matthews' crew was laid off after comparative study of the excess
labor costs for each of the 3 crews over estimated labor costs, during the 11 months prior to
June 1, 1952. While the laid-off crew was under Matthews' charge for 5 1/6 months, he was
the most expensive foreman. I believe that his crew was selected for layoff because he was
the Respondent's most expensive foreman in terms of excess labor costs and because an
arithmetical error, made in computing the monthly average excess labor costs while the crew
operated at different times under Matthews and Wilkes, led the Respondent to the mistaken,
though honest, belief that the crew's average for the 11 months-in question was the highest.
I have carefully considered all the evidence to discover whether such arithmetical mistake
was really made in bad faith to cover up discriminatory selection of those to be laid off. Kelly
impressed me as an honest and truthful witness. Considering all the evidence, I find that it was
an error in computation which was not made in bad faith to cloak discriminatory discharges
or layoffs.
The Respondent explained to the laid-off crew that they were not being discharged but laid
off until work became available They were not given severance pay to which they would have
been entitled if they had been discharged or had quit; and the Respondent informed them at the
time that it was because they were laid off and not discharged that severance pay was not
owing to them They were informed they would be recalled as jobs became available. Since the
layoff, the Respondent has continued to operate with the remaining two construction crews
under their regular foremen and no new employees have been hired for the construction crews.
All construction crew employees are white employees The only employees added by the Re-
spondent have been colored employees for the temporary labor crews and they have been
terminated in accordance with the usual procedureof employing colored farm labor during the
summer
Matthews' crew at the time of the layoff consisted of Benson, Glenn, Jr., Miller, Nabors, and
Moore. Nabors, who was active in the Union and a member of the union bargaining committee
was recalled to work without loss of time when his vacation ended. While it is true that he was
not happy at his transfer to a new location, there is nothing in this record from which to con-
clude that his transfer was discriminatory treatment, particularly since the new location was
established for economic reasons In any event, he was not named in the charge or in the com-
plaint Moore was recalled after his vacation and without loss of time, because a vacancy for a
groundman occurred in Davis' crew. When Davis requested that Moore fill the vacancy, he was
recalled There is testimony in the record that Moore did not belong to the Union (Moore did
not testify), but there is no evidence that the Respondent knew whether he was a member or
not, or, knowing, had recalled him for that reason. While Miller joined the Union and attended
2 or 3 union meetings, there is nothing in the record to prove that the Respondent had knowledge
of his membership or activities Benson and Glenn, Jr , testified in the representation pro-
ceedings in December, 1951. At that time, Superintendent Cranford remarked, when Benson
showed him a subpoena, "Yes, you are a damn big union man now, aren't you? " I do not con-
sider that such a remark, so remote in time, has any weight in determining whether antiunion
animus prompted the layoff of Benson. While it may be suspicious that Benson was working
with Matthews' crew only 4 days before the layoff in June 1952, and included in the layoff,
findings of violation of the Act must be based on something more substantial than suspicion
and conjecture. Benson had always beendesignated a member of Matthews' crew although after
is The record shows that the Respondent had given specific supervisory authority to all crew-
foremen before Matthews was recalled on April 14.
322615 0 - 54 - 66 .
1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
his first year , he had worked with other crews or had been assigned to fill-in work in the
warehouse , assisting engineers in surveys , reading meters , etc. I find that the layoff on June
30, 1952. was an economic measure ; that the selection of Matthews ' crew for layoff was not
made on a discriminatory basis either individually or as a group ; that the Respondent prom-
ised to recall them when work became available ; that it has offered work to Benson and Miller
as jobs came up; and that no new employees have been hired to replace the laid -off construc-
tion crew employees is
Upon consideration of all the evidence and on the basis of the entire record, I conclude and
find that the General Counsel has failed to prove by the required preponderance of evidence
that the Respondent violated Section 8(a) (4) of the Act by discriminatorily discharging Benson
and Glenn , Jr , or violated Section 8 (a),(3) of the Act by discriminatorily discharging Benson,
Glenn, Jr., and Miller and thereafter discrinunatorily refusing to reinstate them. I shall
therefore recommend that the allegations of the complaint with reference to Benson , Glenn,
Jr., and Miller be dismissed
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
I find that the activities of the Respondent set forth in section III, above , occurring in con-
nection 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
Having found that the Respondent has engaged in unfair labor practices violative of Section
8 (a) (3) of the Act, I shall recommend that the Respondent cease and desist therefrom and take
certain affirmative action which will effectuate the policies of the Act.
Having found that the Respondent discriminated against Robert D. Matthews with respect to
his hire and tenure of employment and the terms and conditions of his employment because he
had joined and assisted the Union and had engaged in other protected concerted activities, I
shall recommend that the Respondent make him whole for any loss of pay he may have suffered
by reason of the Respondent 's discrimination against him from October 18, 1951, when he was
discharged to April 14, 1952, when he was reinstated to his former position , by payment to
him of a sum of money covering his loss of pay, such loss of pay to be computed on the basis
of each separate calendar quarter or portion thereof duting the period from the Respondent's
discriminatory action on October 18, 1951, to April 14, 1952. The quarterly periods, herein-
after called "quarters " shall begin with the first day of October, January, and April . Loss of
pay shall be determined by deducting from a sum equal to that which he normally would have
earned for each quarter or portion thereof , his net earnings ,17 if any , in other employment,
during that period . Earnings in one particular quarter shall have no effect upon the backpay
liability for any other quarter . I shall further recommend that the Respondent upon request,
make available to the National Labor Relations Board , or its agents, for examination and
copying , all payroll records and reports , and all other records necessary to analyze the
i6 The General Counsel introduced the testimony of E. L. Mark Fowler who also testified in
the representation case in December 1951 . Fowler was not named in the consolidated com-
plaint . His testimony was to the effect that he had been transferred by the Respondent con-
trary to his wishes. The Respondent introduced evidence that Fowler 's transfer to a new
location as a promotion to district manager was effected as an economic measure . I have not
considered the testimony surrounding the transfer of Fowler in arriving at the above findings
and conclusions as I consider it wholly irrelevant to the issues . I reject the contention of Gen-
eral Counsel that it should be considered as part of the pattern of the Respondent 's conduct
designed to dissipate the strength of the Union. If it be necessary to make a finding , I would
find that Fowler was given work at the new location as an economic measure , disassociated
from any discriminatory motive.
i7By "net earnings " is meant earnings less expense, such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working elsewhere
than for the Respondent, which would not have been incurred but for the unlawful discrimina-
tion against him and the consequent necessity of his seeking employment elsewhere. See
Crossett Lumber Company, 8 NLRB 440. Monies received for work performed upon Federal,
State , county, municipal , or other work- relief projects shall be considered as earnings. See
Republic Steel Corporation v. N. L. R. B., 311 U. S. 7.
JACKSON ELECTRIC MEMBERSHIP CORPORATION 1029
amounts of back pay due and the rights of reinstatement under the terms of this recommended
order. 18
Having found that there is insufficient evidence in the record to sustain the allegations in
the consolidated complaint that the Respondent violated Section 8 (a) (3) and (4) of the Act with
respect to Bennie B Benson , WilliamR . Glenn , Jr., and Edward M. Miller, I shall recommend
that the complaint as to them be dismissed.
Upon consideration of the entire record, especially that the discharge of Robert D, Matthews
was effected because of the Respondent ' s belief that he was a supervisor and therefore might
legally embarrass the Respondent by his union activities , and that following the Board's de-
cision on March 16, 1952, holding that he was not a supervisor within the meaning of the Act,
the Respondent offered him reinstatement and did reinstate him to his former position on
April 14, 1952, and in the absence of any other unfair labor practices , I am of the opinion that
the policies of the Act will be adequately effectuated if Respondent ceases and desists from
the unfair labor practices found and from any like or related conduct.
Upon the basis of the foregoing findings of fact, and upon the record as a whole , I make the
following:
CONCLUSIONS OF LAW
1. Local Union No 84 , International Brotherhood of Electrical Workers, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Robert D. Matthews
because he joined and assisted the Union and engaged in other protected concerted activities,
thereby discouraging membership in the Union . the Respondent has engaged in unfair labor
practices within the meaning of Section 8 (a) (3) and (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices within the meaning of
Section 2 (6) and (7) of the Act.
4. The Respondent did not discriminate against Bennie B Benson , William R. Glenn, Jr.,
and Edward M. Miller, in violation of Section 8 (a) (3) of the Act as alleged in the consolidated
complaint , and did not discharge Bennie B . Benson and William R. Glenn, Jr., and thereafter
failed and refused to reinstate them in violation of Section 8 (a) (4) of the Act as alleged in the
consolidated complaint.
[Recommenda,,ions omitted from publication.]
isSee F . W. Woolworth Company, 90 NLRB 289.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board,
and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our
employees that:
WE WILL NOT discourage membership in Local Union No. 84 , International Brother-
hood of Electrical Workers, AFL , or in any other labor organization of our employees or
in any other manner discriminate against them in regard to their hire and tenure of em-
ployment or any term or condition of employment.
WE WILL make Robert D. Matthews whole for any loss of pay suffered as a result of the
discrimination against him.
All our employees are free to become or remain members of the above -named union or any
other labor organization . We will not discriminate in regard to hire or tenure of employment
or any term or condition of employment against any employment because of membership in or
activity on behalf of any such labor organization
JACKSON ELECTRIC MEMBERSHIP CORPORATION,
Employer.
Dated .............. By. ... ... .... . . ..... ...... ................. ...
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof , and must not be altered,
defaced , or covered by any other material