The Middle West Corp.

National Labor Relations Board - Board Decisions

Dec 13, 1940

28 N.L.R.B. 540 (N.L.R.B. 1940)

In the Matter of THE MIDDLE WEST CORPORATION, KENTUCKY UTILI-
TIES COMPANY, KENTUCKY POWER & LIGHT COMPANY, and INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFFILIATED WITH
THE A. F. OF L.
Cases Nos. C-1661 and C-1662.-Decided December 13, 1940
Jurisdiction : electric utility industry.
Unfair Labor Practices
In General: responsibility of employer for acts of supervisory employees.
Where two subsidiaries of a parent holding company operate as a single
closely integrated enterprise under a common management and with com-
mon supervision and control of their labor policies, both occupy the status
of an employer with respect to the employees of each. Holding Company,
however, not a proper party as it neither controlled or was responsible for
labor policy and had committed no unfair labor practice.
Interference, Restraint, and Coercion: anti-union statements; threats to dis-
charge employees joining or belonging to union ; permitting and endorsing
circulation of anti-union letter and petition.
Discrimination: discharges for union membership and activities.
Remedial Orders : reinstatement and back pay.
Deduction 'made from amount of back pay awarded discriminatorily
discharged employees for the period from the date upon. which each was
discharged to the date upon which charges were filed where a lapse of
7 to 12 months had occurred before charges were filed.
Mr. W. J. Perricelli, for the Board.
Stoll, Muir, Townsend c& Park, by M. R. Stoll, of Lexington, Ky.,
and Gordon, Laurent, Ogden c& Galphin, by Mr. Squire R. Ogden,
of Louisville, Ky., for the respondents.
Mr. W. H. Wilson, of Cuyahoga Falls, Ohio, and Mr. Ira Braswell,
of Winchester, Ky., for the Union.
Mr. Raymond J. Compton, 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, affiliated with the American
Federation of Labor, herein called the Union, the National Labor
Relations Board, herein called the Board, by. the Regional Director
28 N. L. R. B., No. 84.
540 -
THE MIDDLE WEST CORPORATION 541
for the Ninth Region (Cincinnati, Ohio), issued its complaint in
Case No. C-1661, dated March 9, 1940, and its complaint in Case No.
C-1662, dated March 26, 1940, against The Middle West Corpora-
tion, Kentucky Utilities Company,, and Kentucky Power & Light
Company, hereinafter called the respondents, alleging in each case
that the respondents had engaged in and were 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 Re-
lations Act, 49, Stat. 449, herein called the Act. ' On March 26, 1940,
the Board, acting pursuant to Artice II, Section 36 (b), of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
ordered that the cases thus instituted be consolidated for the purpose
of hearing.- Copies of the complaints, accompanied by notice of
hearing thereon, were duly served upon the respondents and the
Union.
The complaints alleged in substance that the respondents (1),
discharged and thereafter refused to reinstate James B. Crawford,
Ira Braswell, Ellis Edwards, and Robert J. Lindsay, for the reason
that they joined and assisted the Union and engaged in concerted
activities for the purposes of collective bargaining and other mutual
aid and protection; and (2) by the afore-mentioned acts, by seiz-
ing records of the Union, by making statements hostile to the Union
and tending to discourage membership of its employees therein, by
threatening employees with discharge for their activities in the
Union, by questioning employees with respect to their membership
in the Union, by circulating anti-union petitions and an "executive
policy letter" designed to impede union organization, and by
other acts, interfered with, restrained, and coerced its employees in
the exercise of the rights guranteed in Section 7 of the Act.2
On March 27, 1940, and on April 4, 1940, the respondents filed
separate answers in Cases Nos. 0-1661 and C-1662, respectively,
denying that they had engaged in or were engaging in the unfair
labor practices as alleged in the complaint. The Middle West Cor-
poration denied in its answer that it, "either through a wholly
owned subsidiary, Middle West Service Company, or at all, super-
vises , controls or influences, either Kentucky Utilities Company
or Kentucky Power & Light Company' with respect to employing
or discharging persons who may be or are working for either
of said companies." The answers of Kentucky Utilities Company
and of Kentucky Power & Light Company asserted the defense
of lathes in, the filing of the complaints, in that the complaints
1 An amended order of consolidation was issued by the Board on March 30, 1940.
2 The complaints are identical save that the discharge of Crawford, Braswell, and
Edwards is alleged in Case No . C-1661, and that of Lindsay in Case No . C-1662. ,
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were not issued within a reasonable time after the discharges of
the persons named therein. At the same time, the ' respondents
filed with the Regional Director motions to dismiss the respec-
tive complaints : The Middle West Corporation, on the ground
that it was not an employer within the meaning of the Act and that
the employees named in the complaint were not employed by it;
Kentucky Utilities Company and Kentucky Power and Light Com-
pany, inter alia, on, the ground that they were not engaged in "com-
merce" or in a business "affecting commerce" as defined in the Act,
and that the acts complained of did not lead or tend to lead to
labor disputes burdening or obstructing commerce. The respondents
also filed a joint motion in each, case that the Board elect which of
the respondents it would proceed against and dismiss the complaint
as to the other two, and a motion to make paragraph 7 of the com-
plaint more specific by amendment thereof to state the names of the
persons who as officers, agents, and employees, of the respondents
are therein alleged to have interfered with, restrained, and coerced
the respondents' employees in the exercise of the rights guaranteed
in Section 7 of the Act, and to name the employees who were thus
subjected to interference, restraint, and coercion. The Regional
Director made no ruling on these motions.
Pursuant to notice, and notices of postponement, a hearing wag
held at Lexington, Kentucky, from April 8 to 11 and April '16 to
19, 1940, inclusive, before Mortimer Riemer, the Trial Examiner
duly designated by the Board. The Board and the respondents were
represented by counsel, and the Union by its International and dis-
trict representatives; all participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and-to
introduce evidence bearing upon the issues was afforded all parties.
At the conclusion of the Board's case, the Trial Examiner adjourned
the- hearing for 4 days pursuant to a request by the respondents for
time to prepare their defense.
During the course of the hearing, the Trial Examiner -sustained an
objection by counsel for the Board to the introduction in evidence
by the respondents of copies of charges and amended charges filed by
the Union -prior to the amended charges upon which the complaints
were issued. This ruling is hereby reversed and the charges offered
by the respondents are hereby made a part of the record.3 At the
commencement of the hearing, counsel for the Board offered in evi-
dence all motions previously filed by the respondents with the Re-
gional Director, and at the conclusion of the Board's case and at the
conclusion of the hearing, the respondents renewed the motions for
3 The exhibits in question appear in the record of the hearing as "Respondents Refused
Exhibits Nos. 13, 13a , 13b, 13c, and 13d."
THE MIDDLE WEST CORPORATION 543
severance,of the parties and for dismissal of the complaints. At the
conclusion of the hearing, the Trial Examiner denied all of the fore-
going motions with the exception of that made by The Middle West
Corporation to dismiss the complaint as to it, which he granted in
his Intermediate Report filed thereafter. The Trial Examiner also
reserved ruling on a motion by counsel for the Board to admit in
evidence the affidavit of Roland M. Tillman, a Board witness, which
he denied in his Intermediate Report. At the close of the hearing,
the parties stipulated that the pleadings be conformed- to the proof
with respect to matters of form only. During the course of the hear-
ing, the Trial Examiner ruled upon other motions and upon objec-
tions to the admission of evidence. The Board has reviewed all the
rulings of the Trial Examiner and finds that no prejudicial errors
were committed. Except as indicated above, the rulings are hereby
affirmed. After the close of the hearing, the respondents filed a brief
with the Trial Examiner.
The Trial Examiner thereafter filed his Intermediate Report,
dated August 19, 1940, copies of which were duly served upon the -
parties. He found that Kentucky Utilities Company and Kentucky
Power & Light Company had engaged in and were engaging in un-
fair labor practices within the meaning of Section 8 (1) and (3) and'
Section 2 (6) and (7) of the act by approving and ratifying the
circulation of an anti-union petition, by endorsing and permitting the
circulation of an anti-union letter, by surveillance of a union meeting,
by warning and persuading their employees, through supervisory
officials, to refrain from joining or remaining members of the Union,
and by discriminating in regard to the hire and tenure of employ-
ment of James B. Crawford, Ira Braswell, Ellis Edwards, and Robert
J. Lindsay. He accordingly recommended that these respondents
cease'and desist from the unfair labor practices found and, affirma-
tively, reinstate with back pay the four employees found to have
been discriminatorily discharged. He found further that The Middle
West Corporation had not engaged in the unfair labor practices al-
leged in the complaints and recommended that the complaint against
it be dismissed. Thereafter the respondents filed exceptions to the
Intermediate Report and requested that the Board consider the brief
filed with the Trial Examiner. The Board has considered the brief
and the exceptions to the Intermediate Report and, in so far as the
exceptions are inconsistent with the findings, conclusions, and order
set forth below, finds them to be without merit.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in,the case, the Board makes the following:
FINDINGS OF FAVr
1. THE RESPONDENTS
A. The business of the respondents
Kentucky Utilities Company and Kentucky Power & Light Com-
pany are corporations organized and existing under the laws of the
State of Kentucky. Kentucky Utilities Company is principally en-
gaged in the generation, purchase, transmission, distribution and sale
of electric energy for light, power, and other purposes in 69 counties
in Kentucky and 3 counties in Tennessee. It also owns and operates
gas distribution systems in 4 communities, distributes and sells water
in 12 communities, manufactures and sells ice, and provides` Paducah,
Kentucky, with bus transportation. Kentucky Power & Light Com-
pany is similarly engaged in the purchase, transmission, distribution,
and sale of electric energy, and in 1939 purchased substantially all of
the electric energy sold by it-from Kentucky Utilities Company.
Kentucky Utilities Company and Kentucky Power & Light Com-
pany are subsidiaries of The Middle West Corporation, a holding com-
pany incorporated under the laws of the State of Illinois, which
through its subsidiaries furnishes one or more utility services to 15
States in the United States and 2 Canadian Provinces. The Middle
West Corporation owns all the common stock in Kentucky, Utilities
Company and more than 50 per cent of the stock in United Public
Service Corporation which in turn owns all issued shares of stock in
Kentucky Power & Light Company. Middle West Service ^ Company,
a wholly owned subsidiary of The Middle West Corporation, fur-
nishes supervisory services.under a management contract to both
Kentucky Utilities Company and Kentucky Power,& Light Company.
R. M. Watt, president and director of Kentucky Utilities Company
and of Kentucky Power & Light Company, directs labor relations of
both companies. The operating territory of the two companies is
divided into five geographical divisions within the State of Kentucky,
with the principal supervisory, accounting, and engineering office at
Lexington. Each division has a division manager and other division
officials who act on behalf of either company and are directly responsi-,
ble to the Lexington office. The facilities and business of Kentucky
Power & Light Company are under the direct supervision of the divi-
sion manager of Kentucky Utilities Company for the Northern Divi-
sion at Maysville, Kentucky. Each division is divided' into districts,
which are in charge of a district manager who directs the properties
of both companies within the district and is responsible to the division
THE MIDDLE WEST CORPORATION 545
manager. In addition to district managers, each division has its divi-
sion engineer, accountant, commercial manager, safety director, audi-
tor, production superintendent, and meter superintendent, all of whom
are responsible, to the division manager. Construction and mainte-
nance crews perform planned work within each division under the
general supervision of the engineering division working with the
division manager.
The greater portion of electric energy sold and distributed by
both companies is generated in Kentucky by Kentucky Utilities
Company. The transmission system of Kentucky Utilities Com-
pany extends from Louisville, Kentucky, through its Dix Dam and
Pineville generating stations to the State line between Kentucky and
Virginia, where it connects with the transmission system of Old
Dominion Power Company, its wholly owned subsidiary, south of
Pocket, Virginia, and at other points on the Kentucky-Virginia State
line; and across the Kentucky-Tennessee State line through Mid-
dlesboro, Kentucky, and Cumberland Gap, Tennessee, and again
through Fulton, Kentucky, and South Fulton, Tennessee, where it
connects with the lines of two small Tennessee subsidiaries of Ken-
tucky Utilities Company which obtain all the electric energy sup-
plied to eight communities in Tennessee from it. The transmission
system of Kentucky Utilities Company also connects with, that of
Kentucky Power & Light Company in northern Kentucky, at which
points of connection Kentucky Power & Light Company obtains sub-
stantially all of its electric supply from Kentucky Utilities Company.
Kentucky Utilities Company sells electric energy to unaffiliated
light and power companies in Kentucky, Tennessee, and Illinois. Both
Companies supply, electric energy to manufacturing concerns in Ken-
tucky whose products have a national market, and to four interstate
railroads in Kentucky. They also furnish electric energy to West-
ern Union 'Telegraph Company, Postal Telegraph-Cable Company,
and Southern Bell Telephone and Telegraph Company, to a radio
station, newspapers, and airports, and for navigation lights and the
operation of locks and dams on the Kentucky and Ohio Rivers. The
gross operating revenues of Kentucky Utilities Company for the
year 1939 from the sale of electric energy, gas, water, ice, , and bus
transportation was in excess of $9,250,000. In 1939 the total sales
of electric energy for Kentucky Utilities Company, its wholly owned
subsidiaries, and Kentucky Power & Light Company, was in excess
of 460,416,139 kilowatt hours. For the same period, Kentucky-Utili-
ties Company delivered 52,801,557 kilowatt hours outside Kentucky
and received from without the State 51,374,100 kilowatt hours. All
purchases of electric energy by Kentucky Power & Light Company
from Kentucky Utilities Company were consummated in Kentucky.
546 DECISJONS OFNATIONAL LABOR RELATIONS BOARD
In 1939 Kentucky -Utilities Company and Kentucky Power. & Light
Company expended approximately $65,000 for the purchase of cop-
per wire and cables from outside Kentucky and approximately $49,-
800 for the purchase of poles, of which approximately 60 per cent
were shipped from other States. During the same year, approxi-
mately 35 per cent of the electric appliances sold by them, the sale
of which amounted to approximately $383,600, were shipped from
outside the State of Kentucky.
B. The employer status of the respondents
The Board has fully considered the relationship existing between
Kentucky Utilities Company and Kentucky Power & Light Com-
pany with regard to the contention of the respondents that Kentucky
Power & Light Company was not the employer of certain employees
involved herein. Since, as outlined above,' both companies operate
as a single closely integrated enterprise under a common manage-
ment and ' with centralized 'supervision and control of their labor
policies, it cannot be said that either company is absolved from re-
sponsibility for unfair labor practices engaged in by the other. - We
accordingly find that at all times herein material Kentucky Utilities
Company and Kentucky Power & Light Company, and each of them,
occupied the status of an employer with-respect to the employees
involved herein.
- We are in accord, however, with the contention of the respondents
that The Middle West Corporation is not a proper party to the in-
stant proceedings. We find, as did the Trial Examiner, that there
is no evidence that The Middle West Corporation controlled or was
responsible for the labor policy of Kentucky Utilities Company or
Kentucky Power & Light Company, or that through its officials it
had committed any of the alleged unfair labor practices. There are
no officers or directors common to The Middle West Corporation and
the other two companies. Evidence of control by The Middle West
Corporation is confined to its 100 per cent ownership of the common
stock of Kentucky Utilities and to ownership of 50 per cent but less
than 53 per cent of the common stock of United Public Service Cor-
poration, which owns all of the issued shares of stock of Kentucky
Power & Light Company. Although Middle West Service Com-
pany, a wholly owned subsidiary of The Middle West Corporation,
has a management contract with Kentucky Utilities Company and
Kentucky Power & Light Company whereby services are rendered
in connection with "management, rate, engineering, purchasing, com-
mercial, merchandising, accounting, income tax, insurance and safety,
and other matters," there is no showing that, this, contract included
control or direction of any labor policy. We shall accordingly dis-
c1 THE MIDDLE WEST ' CORPORATION 547
miss the complaint insofar as it alleges that The Middle West Cor-
poration engaged in unfair labor practices 4
II. THE ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers is a labor, organi-
zation affiliated with the American Federation of Labor, admitting
to its membership all employees of the respondents in the gas, water,
electric, and ice departments, excluding supervisors, foremen, clerical
forces, janitors, janitresses, salesmen, office employees, and others
having authority to hire and discharge.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The Union commenced organizing the respondents' employees in
April 1937. Shortly thereafter locals of the Union were established
in three of the four then operating divisions of the respondents. In
June 1937 James Thompson, a clerk at the K. U. Park Power Sta-
tion , circulated among the respondents' employees a document 5 read-
ing as follows :
We, the undersigned employees of the Mountain Division of
the Kentucky Utilities Company, at K. U. Park Station, [Power
Company, Old Dominion Ice Corporation, Dixie Light and
Power Company,] desire to go on record with reference to an
Article that appeared in the current copy of the Electrical
World, dated June 12th, 1937, quoted as follows :
Organize Electrical Workers
^ Organization of a local unit of union electrical workers em-
bracing employees of the Kentucky Utilities Company, except
the office force, and electricians engaged in the building industry,
has been perfected. W. H. Wilson, Kentucky organizer of the
International Brotherhood of Electrical Workers_ and (sic)
A. F. of L. affiliate, said that negotiations would be undertaken
in the near future for a working agreement for higher wages
and better working conditions.
We desire to state that this article is unfair and not true, that
we, as individuals or collectively are not affiliated ^ with any
Union organization [or do we desire, to become so affiliated and
that our working conditions as to hours and wages are absolutely
satisfactory.]
'Hereinafter our reference to the respondents will include only Kentucky Utilities
Company and Kentucky Power & Light Company.
5 Designated in the record , and hereinafter referred to, as the Thompson petition,
413597-42-vol. 28-36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[We desire to enjoy this freedom without any interference]
and we want to pledge the company our loyal support and thank
it for the policy that it has established and maintained toward
its employees e
Thompson testified that the circulation of the petition was sug-
gested by one Creech, the owner of a hardware store in Pineville
patronized by the respondents, and that he and Creech had the Above
petition prepared in the office of a Pineville insurance agent. Thomp-
son further testified that he circulated the petition because he "didn't
want the organization torn up like it had been all over the country
... You could hardly pick up a paper but what you would see
riots and destruction of property and killing and shooting and people
out of work on account of union organizers." Thompson admitted
that six other copies, substantially the same in content, were pre-
pared by stenographers in one or more of the respondents' offices.
Thompson secured from his superior, G. J. Williams, superintend-
ent of production for the Mountain Division who also signed the
petition, permission to take time off and spent 4 or 5 consecutive days
openly circulating the petition among employees during working
hours at K. U. Park Power Station, Pineville, Harlan, Middleburg,
London, and Somerset. At least 11 supervisory employees signed
one or another of the petitions, including J. H. Bailey, division
manager,'' M. E. Graybeal, then division accountant at Pineville; .
H. B. Asher, division engineer, J. D. Graybeal, commercial manager,
H. S. Edwards, division meter superintendent, and W. C. Farley,
division superintendent of construction and maintenance.8 In Lon-
don the petition was circulated with the acquiescense of W. C. Stin-
Thompson testified that the words bracketed above were blocked out because "there
was some few employees-quite a few signed it and some few objected to certain clauses
in it, and I said , 'I will be very glad to mark that out if you object to that.' "
I Indicative of the animus Bailey bore the Union Is the testimony of George Tate, a
former deputy sheriff, who testified that in the fall of 1937 he attended Bailey who was
undergoing treatment for alcoholism at the Hotel Beecher in Somerset - According to Tate,
Bailey said that he did not believe in unions , that he did not like organized labor, and
that he did not want any of his men organized -into unions if he could help it. Bailey
denied making these statements , but admitted that Tate had attended him in December
1935 when he was being treated for alcoholism at the Hotel Beecher. Although the testi-
mony is in conflict as to the exact time of the incident , we credit Tate's testimony and
find, as did the Trial Examiner , that Bailey made the statements substantially as
attributed to him.
B Further light-is shed as to Farley's attitude toward the Union by the testimony of
Joe Wheeler ' Snavely, formerly employed by the respondents as a line foreman. He
testified that in the latter part of 1937 or early in 1938 Farley asked him if any of the
men on his crew belonged to the Union ; that he replied that he had no knowledge of
their union affiliation ; and that Farley then stated that lie was "very much against
the union," and could see no reason why men should want to loin a union and pay out
money to work "for a company when they could work and keep their money ." At the
hearing Farley denied that he inquired of Snavely whether or not the, members of his
crew belonged to the Union , but admitted that he had discussed unions with Snavely.
The Trial Examiner credited the testimony of Snavely we find that Farley made the
statements as testified to above.
THE MIDDLE WEST CORPORATION 549
son, district manager, who was present when Thompson asked em-
ployees to sign it. J. P. Todd, district manager, testified that _he
read the petition, "liked the looks of it," signed it, and gave Thomp-
son permission to circulate it among the employees at Somerset.
When Thompson had completed circulation of the petitions he gave
them to Bailey, division manager, who after reading them returned
them to Thompson. Williams, Thompson's superior, testified that
after Thompson had circulated the petitions he told Williams that
"he had done a big job" and would appreciate,it if he could be reim-
bursed for the expenses incurred in the circulation. Williams con-
sulted Bailey and upon his approval reimbursed Thompson.
The obvious interference with the self-organization of the respond-
ents' employees effected by the circulation of the above petitions needs
little comment. It was clearly designed to impede the then current
organizing efforts of the Union, and the permission given Thompson
to circulate the petition for several days among employees in the
various plants and offices of the respondents without loss of pay and
with reimbursement for the expenses he incurred in so doing, coupled
with the fact that divisional supervisory employees not only expressly
permitted the circulation of petitions but themselves signed them,
was tantamount to open sponsorship by the respondents. By such
acts of their supervisory employees the respondents made clear to
their employees that the respondents considered affiliation with the
Union to be inconsistent with "loyal support" of the respondents,
and disapproved of such affiliation. The respondents thereby inter-
fered with, restrained, and coerced their employees in the exercise of
their rights as guaranteed in Section 7 of the Act.
During 1937 when the Union was organizing the respondents'
employees, and continuing thereafter into 1938, various supervisory
employees of the respondents made threatening and coercive anti-
union statements to employees. James Jessup, an employee at the
Graham power plant, testified that in 1937 shortly after entering the
respondents' employ he asked L. F. Dempsey, power plants super-
intendent in charge of the electric generating operations at Paducah,
Earlington, and Graham, what he` thought about the Union and that
Dempsey replied that sooner or later all employees would be or-
ganized. • Jessup testified that he thereafter joined the Union and
that about 3 weeks later, he again talked to Dempsey, who told-him
that he had met Wilson, the union representative, and had found out
that "it was all a mess and we were getting a dirty deal and he wanted
to advise us to drop the-thing." Jessup stated that on this same
occasion Dempsey also said: "Sooner or later you will be fired, and
they may not get nothing on you now, but later you will be black-
balled from whole western Kentucky." In August 1-938 Jessup
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sought a transfer from Earlingtoi to Graham. According to Jessup,
Dempsey told him that the transfer would be made only on condition
that Jessup would "stay away from the local." Although Jessup
expressed his reluctance to be transferred under such a condition, he
was granted the transfer a few days later. Dempsey denied making
the statements as testified to by Jessup, but admitted having dis-
cussed union matters with him. L. C. Bennett, also employed at
Graham, and a charter member of the Union, testified, that in 1937
or 1938 Dempsey told him, "Les, you are getting old; if you don't get
• out of the union I can't take care of you." Dempsey denied making
this statement but admitted that he had expressed his opinion to
Bennett concerning the Union and that on one occasion he had said
to Bennett, "I don't think much of it." Robert Rich, an-employee at
the Earlington plant, testified that while working in July 1938
Dempsey said to him that "about fifty percent of the men in the union"
at Earlington and Graham plant were dropping out'' and said : "I
advise you to get out rather than remain and hold the bag." Demp-
sey denied advising Rich to resign from the Union, but admitted
that he had discussed the Union with Rich on "various occasions."
Hugh P. Lansden, an operating engineer at Earlington, testified that
in the summer of 1938 Dempsey told him that-he was going to
"break this thing up," referring to the Union, and that he already-
had "two of the best men out' and we will' get more." Roland L.
Tillman, also employed at Earlington, testified that in the sipring
of 1937, Dempsey told him that the employees "would be better off
if we didn't bother with this union and kind of promoted a union of
our own." Dempsey testified that all of the foregoing employees
were "very close" to him and that on numerous occasions they had
asked his advice with respect to union affairs. He stated that he
avoided discussing these matters with the employees, but that "when
they asked me I had to give them a personal answer in some way."
We find, as did the Trial Examiner, that Dempsey made substantially
the statements above attributed to him, by Jessup, Bennett, Rich,
Lansden, and Tillman:
Walter Killion, an employee at Lancaster, testified that A. S. Britt,
the local manager, in the fall of 1937 asked Killion what it cost
to belong to the Union and, upon Killion's reply, stated that it "was
right smart money to give up." Britt admitted that he had a "num-
ber of conversations" with Killion concerning union activities but
could not remember snaking any particular statements to him. John
Buzzard, a lineman, testified without contradiction that in November
1937, upon complaining to Frank Noe, his foreman, concerning the
amount of work he had, Noe replied, "If you don't like your job get
'off of it, and to hell with the Union." We credit, as did the Trial
THE MIDDLE WEST CORPORATION 551,
Examiner, the testimony of Killion and Buzzard. We find that Britt
and Noe made the statements as set forth above.
Robert Coldiron, a line-crew employee, testified that- in August
1938 John Brattan, his foreman, told him "to stay out of the union,"
that it would not do him "any good," and that it would keep the
men from getting vacations. Brattan denied making the foregoing
statements to Coldiron "after his employment" but stated that previ-
ous to Coldiron's employment on the crew they had discussed the
Union. In giving credence to Coldiron's testimony, the Trial Ex-
aminer characterized it as clear, concise, and positive. We find that
Brattan made the statements substantially as testified to by Coldiron.
Brattan admitted on cross-examination that he had sat in his car
near the union hall for a period of 30 minutes while a union meet-
ing was in progress, but explained that he had been at a drug store
nearby and had then decided to sit in his car. He denied that he
had any intention of spying upon the meeting of the Union. Upon a
consideration of the evidence pertaining. to this incident we are un-
able to agree with the finding of the Trial Examiner that Brattan
had engaged in unlawful conduct on this occasion, and find that the
respondents did not maintain surveillance of the union meeting being
held at that time.
Cyril Miller, a maintenance employee at Earlington, testified that
J. L. Walker, assistant manager of the Western Division, asked him
"on the ground of friendship to get out of the union" and during
an ensuing argument told Miller, "If you don't get out I don't expect
I will be able to keep you very long." Walker did not testify. The
Trial Examiner found Miller to be a reliable witness and gave full
credence to his testimony. We find that Walker made substantially
the statements attributed to him by Miller.
On December 13, 1938, the Board ordered an election among the
respondents' employees to determine whether or not- they desired
to be represented by the Union for the purposes of collective bargain-
ing. An election was held from January 16 to January 21, 1939, and
the Union lost. The petition filed by the Union for an investigation
and certification was accordingly dismissed. Shortly after the elec-
tion, Carroll Hoyt Teague, an operator at the Earlington power plant
who relinquished his membership in the Union subsequent to the
election, circulated among the employees for their signature a letter
addressed to Watt, the respondents' president, reading as follows :
Regarding the outcome of the recent vote taken by employees
of the Kentucky Utilities Co., we, the employees of the Earling-
ton and Graham power stations, consider the election a fair and
final- settlement of the question voted on. We feel that any
further attempt to establish the I. B. E. W. as bargaining agent
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the employees of Kentucky Utilities Company; will be detri-
mental to the interest of both the employees and the Company.
We are aware of the misunderstandings and ill feelings that
arose from this controversy preceding the election, and sincerely
regret that such happenings occurred.
We are confident that you, as president of our company, will
see that no employees are discredited because of previous activ-
ities pertaining to labor organizations. With this in mind, we
are severing all relations with the I. B. E. W., and sincerely hope
and believe that all K. U. employees share our view on this
matter.
Teague obtained permission from Dempsey, power plants super-
intendent, to circulate the letter among employees at Earlington,
Graham, Clay, and Sturgis. Teague claimed to have circulated the
letter on his own time. It was circulated with Dempsey's approval,
however, and was presented for signature to employees at the Earling-
ton and Graham plants while they were at work. Thereafter, copies
of the letter signed by employees were sent to L. P. Hite, manager of
the Western Division, Walker, assistant division manager, and Hicks,
production superintendent. Subsequently, Walker and Dempsey told
_ Teague that it was a "nice letter" and expressed the opinion to him
that "it would be appreciated." All signatories received from Watt
the following reply :
The contents of your January 27th. letter afford me a great deal
of pleasure. Your expression assures me of your confidence in
our employee welfare policy. My keenest interest has been
towards the improvement- of employee working conditions and
wages. Many conflicts and interferences have retarded my efforts
from time to time. The full cooperation of every employee is the
only means of overcoming this difficulty, and the only means of
maintaining such a policy once put into effect.
You may be assured that I have only the kindest and most sym-
pathetic feeling towards all employees of every class, irrespective
of any thoughts or actions on the part of some who may have been
inclined to the judgment that their interests could have been bet-
ter served by other methods. - ,
Thank you for the thoughtful expression of your letter, and
good wishes for your health and happiness.
By permitting and later endorsing the circulation of the above letter,
and by Watt's reply thereto, the respondents conveyed to their em-
ployees, as in the case of the petition circulated by Thompson, the re-
spondents' preference that they refrain from or relinquish membership
and activity in the Union. We find that the respondents' conduct
THE MIDDLE WEST CORPORATION 553
constituted an unlawful interference with the rights of self-organiza-
tion guaranteed to their employees in the Act.
The respondents contend that they are not responsible for the activi-
ties of their supervisory employees because Watt, president of the
respondents, at a meeting held shortly after the passage of the Act,
instructed division managers and the heads of various departments
"to comply with the provisions of the Act in going about their busi
ness." The evidence does not show, however, that the respondents pro-
mulgated among their supervisory personnel a clear-cut policy of non-
interference with the union interests and activities of their employees
or that they in any way attempted to disavow the widespread activities
of supervisory employees in opposition to the Union. The respondents
are not relieved of responsibility for the activities of their supervisory
staff merely by refraining from actual participation therein 9 We
also find no merit in the respondents further contention that the evi-
dence does not show that any of their employees were actually inter-
fered with, restrained, or coerced by the activities complained of. In
Matter of Montgomery Ward and Company, we answered a similar
contention as follows : -
It is sufficient that the conduct which constitutes the gravamen
of the unfair labor practice normally results in interference,
restraint, and coercion ; it is immaterial that the proscribed
conduct does not produce the desired result. The respondent's
invasion of the field of union activity which the Act reserves
as a matter of right to the employees is in itself an unfair labor
practice.'°
We find that by the activities of their supervisory employees de-
scribed above in disparaging the, Union, and in warning, threaten-
ing, and questioning employees with respect to their affiliation with
9In Swift & Company V. National Labor Relations Board, 106 F. (2d) 87 (C. C. A. 10),
enforcing as modified Matter of Swift & Company, a Corporation, and Amalgamated Meat
Cutters and Butcher Workmen of North America, Local No. 641, at at., 7 N. L. R. B. 269,
the court disposed of a similar defense, stating :
While the evidence showed that Middaugh, the plant manager , and Young, the
plant superintendent , repeatedly warned against violations of the National Labor
Relations Act and solicitation of union membership on petitioner 's premises during
working hours , they took no effective means to stop repeated violations of the Act.
Furthermore , with . respect to the acts of the supervisory foremen, the doctrine of
respondeat superior applies and petitioner is responsible for the actions of its
supervisory foremen, even though it had no actual participation therein. I
See also National Labor Relations Board v. The A S. Abell Co.. 97 F. (2d) 951 (C. C. A.
4), enforcing as modified Matter of The A. S Abell Company, a Corporation and Inter-
national Printing and Pressmen's Union, Baltimore Branch , Baltimore Web Pressmen's
Union No. 31, 5 N. L. R. B. 644; Titan Metal Manufacturing, et al. v. N. L. It. B , 106 F.
(2d) 254 (C.' C. A. 3), enforcing Matter of Titan Metal Manufacturing Company and
Federal Labor Union No. 19981, 5 N L R. B 577.
w Matter of Montgomery Ward and Company and Warehouse Employees ' Union No 20,
297 affiliated with the A . F. of L., 17 N. L. R. B. 191.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union, and by permitting, endorsing, and participating in the
circulation of the Thompson petition and the, Teague letter, the 're-
spondents have interfered with, restrained, and coerced ' their em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
It was also alleged in the complaints that the respondents had i
seized union records from the locker of a union employee and had
distributed an executive policy letter designed to impede union or-
ganization. As to the first allegation we find, as did the Trial Ex-
aminer, that it is not supported by credible evidence. Inasmuch as
no exceptions were filed to such finding of the Trial Examiner we
will not here review the evidence. In support of the second alle-
gation, it was contended that paragraph 8 of an executive policy
letter mailed by the respondents to all of their employees in Sep-
tember 1937 effected an interference with the organizing efforts of
the Union. This paragraph reads as follows :
The "Company" will recognize for collective bargaining any
group of employees duly authorized to represent a majority of
employees in any such division. The term "division" shall be
defined as the territory or area now covered' by each of the four
operating divisions as now established.-
Although the above statement is susceptible of interpretation as
an attempt by the respondents to dictate the form of employee self-
organization by unilaterally defining the scope of the bargaining unit,
under the circumstances we find, as did the Trial Examiner, that the
circulation of the policy letter by the respondents was not an act of
interference with the rights of their employees to self-organization
within the meaning of the Act. We shall dismiss both of the above
allegations of the complaints.
B. The discriminatory discharges
James B. Crawford was intermittently employed by the respond-
ents from 1924 to July 6, 1937, the date of his discharge. His last
period of continuous employment; during which he worked as a
first-class lineman at London in the Mountain Division, began in
April 1936. Late in June 1937 Crawford signed and circulated
among a line crew at London, an application for a union charter.
Between June 15 and July 6, 1937, he also solicited members in the
Union by distributing membership applications among the employees
for their signature.
"A second policy letter necessitated by the enactment of the Fair Labor Standards Act
was sent to all employees on October 31, 1938. Other than the adjustment in wages
and hours set forth therein, it was similar to the first letter issued in September 1937
and contains a statement identical with that quoted above
THE MIDDLE WEST CORPORATION 555
In the latter part of June 1937 Crawford refused in the presence of
Stinson, the district manager, and several other employees in the dis-
trict office at London, to sign the Thompson petition. Stinson testified
that when Thompson came into the office and asked him for permis-
sion to circulate the petition, he read the petition, told Thompson :
"Go ahead, help yourself,"' and stated that all the men were there or
that they would all be in there in a few minutes. Phelps, Crawford's
foreman, was also present and signed the petition at Thompson's
request. Crawford testified that shortly after he refused to sign the
Thompson petition, Farley, superintendent of construction, asked him
if there had been any union organizers around London, to which Craw-
ford-replied that he had not seen any, but would be glad if they came
there. When Crawford added that a man could not be discharged for
union activities because of the Act, according to Crawford, Farley
stated that the respondents "didn't have to fire a man, that they had
ways of getting around that for union activities." Farley testified
that he did not remember having had a conversation of this nature
with Crawford. The Trial Examiner credited the testimony of Craw-
ford and in view, among other things, of Farley's demonstrated atti
tude of opposition toward the Union 12 we find that Farley made the
statements substantially as attributed to him above.
On July 6, 1937, Stinson told Crawford, "I have some bad news for
you, Jim." Crawford replied, "I bet I can guess what it is. I guess
the old yellow dog has got me, because I refused to sign the yellow
dog petition." Stinson then said, "Well, I have orders to let you go,"
but asserted that it was only to reduce expenses and not because of,
Crawford's union activities, or his refusal to sigh the Thompson peti-
tion. Stinson testified that he had received instructions to discharge
Crawford from Bailey '13 the division manager.
B. F. Cross, a lineman, testified that after Crawford's discharge
H. L. Williams, line foreman, said to him and other members of the
line crew, "You had better be careful what papers you sign. Jim
Crawford is an example." Williams admitted talking to members of
his crew about the Union "right after" Thompson had circulated the
petition and testified that "about the same time" the men had talked
among themselves about Crawford's discharge, but denied making the
statement attributed to him by Cross. We find, as did the Trial
Examiner, that Williams made the statement as testified above.
About 2 weeks after his discharge, Crawford sought the assistance
of Watt, the respondents' president, in securing reinstatement. Watt
agreed to do what he could to help Crawford in getting back his job,
and afterwards talked to Bailey concerning Crawford's reemploy-
See footnote 8, supra.
'- See footnote 7, supra.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. A day or so later, • Crawford saw Bailey who, according to
Crawford, told him that he could return to work" just as soon as I
can place Air. Brown somewhere else." 14 Crawford testified that
Bailey also told him that he would have had his job back sooner if he'
"hadn't threatened to sue in front of the Labor Board." Bailey denied
that he made this latter statement to Crawford. We find, however, as
did the Trial Examiner, that he made the statement to Crawford as
quoted above. Crawford also testified that when lie approached
Howard Asher, division engineer, and asked him to help in getting
back his job, Asher told him, "Jim, your threatening attitude is the
only cause of your not getting back, threatening to sue the company,"
and further remarked, "This union activity, you ought to have- had
more sense than to fool with a thing like that." Asher denied making
the foregoing statements to Crawford, but admitted that he had sev-
eral conversations with Crawford and had said he would do what he
could to help him. We credit, as did the Trial Examiner, Crawford's
testimony as to the statements made by Asher. - -
Shortly after Crawford's conversation with' Bailey; Farley, con-
struction superintendent, offered Crawford a job as lineman at Pine-
ville. Farley testified that Bailey had' called him and told him to
offer Crawford the job. Crawford, who had a home and his wife
and 85-year old mother in London, refused, stating that Bailey had
promised to reemploy him at London and asked Farley if he would
assist in "rushing it up." Thereafter, Crawford again talked to
Bailey. Bailey asked him why he did not- take the job offered by
Farley, and when Crawford replied that he was waiting for the job in
London which Bailey had promised-him, Bailey retorted, "You know
we don't allow our men to pick their jobs." Crawford protested that
he only wanted the job he had been discharged from, and a heated
argument ensued, during which Bailey ordered Crawford from the
office. Crawford left and did not again apply to Bailey for rein-
statement.
The respondents contend that Crawford was discharged solely to
reduce expenses and thereby to offset losses occasioned by the Ohio
Valley flood early in 1937. The evidence shows, however, that two
linemen were reemployed a month or so after Crawford's discharge,
and a third on January 7, 1938. Moreover, whether or not it may
have been expedient for the respondents to reduce their personnel at
that time, we are convinced that in selecting Crawford for dismissal
the respondents were motivated by his activity in the Union and by
his -adherence thereto as manifested in his refusal to sign the Thomp-
14 Brown , a second-class lineman who Williams, line foreman . admitted was not as
experienced or as good a lineman as Crawford , had been transferred to London to do
work which had theretofore been performed in part by Crawford
THE MIDDLE WEST CORPORATION 557,
son petition. Nor did the, respondents remedy their discriminatory
discharge of Crawford by tendering him employment at Pineville.
The evidence concerning the respondents' discriminatory transfer of
Ellis Edwards, discussed below, suggests that by the transfer of
Crawford the respondents sought to suppress Crawford's charges of
discrimination and at the same time obstruct and discourage his sup-
port of the Union by giving him reemployment away from London.
In any event, the position offered to Crawford at, Pineville was not,
under the circumstances, substantially equivalent to that from which
Crawford was discharged.
We find that the respondents discharged James B. Crawford on
July 6, 1937, and thereafter refused to reuistate him to his former or
a substantially equivalent position because he had assisted the Union
and refused to sign the anti-union Thompson petition, and that they
thereby discriminated in regard to his hire and tenure of employ-
ment, discouraged membership in the Union, and interfered with,
restrained, and coerced their employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Ellis Edwards was first employed by the respondents in 1932 as
a clerk in the Somerset office of the Mountain Division. In' June
1935 he was given a job as a meter tester and reader in connection
with the initiation of a special meter-testing program.15 Edwards
joined the Union in June 1937, circulated the application for charter
which, as hereinbefore stated, he gave-to James Crawford for circu-
lation at London, solicited memberships, and was otherwise active
in the Union in and around Somerset. In June 1937 he refused, as
did Crawford, to sign the Thompson petition, objecting to that por-
tion of the petition which stated that employees had no desire to
join a union in the future.18. Edwards, however, signed a second pe-
tition, later presented to him by Thompson, from which the objec-
tionable material had been removed.
In the latter part of November 1937 M. E. Graybeal,. who had
recently been promoted to district manager at Somerset, informed
Edwards that he was to be transferred to Pineville. Edwards testi-
fied that he asked Graybeal if he was not being transferred because
of his union activities, and that Graybeal replied in the affirmative
and added that he had warned Edwards on a previous occasion
when checking his time tickets. According to Edwards, Graybeal,
who had, on the occasion in question, been division accountant at
25 In April 1935, pursuant to then recently promulgated rules of the Kentucky Public
Service Commission , the respondents embarked upon a special program of meter testing.
By agreement with the Commission, the respondents were to test all of their meters
within a period of 21/2 years , and by the end of 1938 the meter program was practically
completed.
is See footnote 6, supra.
558 ' DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pineville, had checked Edwards' time tickets and asked him to
"what account number" he was charging his union activities, fur-
ther questioning, him as to which employees `were members of the
Union. Graybeal denied having thus questioned Edwards or ever
having discussed the Union with him. He testified that when the
transfer occurred , he needed a man at Somerset who could supervise
outside work, that the meter-testing program upon which Edwards
had been working , at Somerset was completed ; that he therefore
recommended to Bailey, the division manager, that Edwards be
transferred to Pineville, and that Claude Hill, then in the meter
department at Pineville , was transferred to Somerset to fill the posi-
tion Graybeal "wanted taken care of." There was, however, no
satisfactory evidence showing that Edwards was unable to do the
work for which Hill was transferred to Somerset . In view of
Graybeal 's anti -union attitude , as evidenced by his signing of the
Thompson petition , and his inadequate and evasive explanation of
why Edwards was transferred to Pineville , we find, as did the Trial
Examiner , that Graybeal made the statements attributed to him by
Edwards.
In the latter part of November 1937 James Edwards, father of
Ellis Edwards , asked Bailey, the division manager , in Graybeal's
office, why Ellis had been transferred to Pineville . ' Edwards testi-
fied that Bailey replied , "Ellis is too active in the union business
with my men here in Somerset and I think it is better for our organi-
zation to send him to Pineville ." Cressel Edwards , a brother of
Ellis Edwards, testified that he was present when his father spoke
to Bailey , and corroborated the conversation as testified to by James
Edwards. Bailey denied the above version of the conversation, and
testified that Cressel Edwards was not present and that Graybeal
was the only other person in the office . Graybeal testified that he
overheard "the principal and important part" of the conversation be-
tween Edwards and Bailey and that Bailey did not make the state-
ment testified to by Edwards. He admitted , however, that he was
called from the office before Edwards and Bailey had finished talk-
ing. Graybeal did not testify as to whether or not Cressel Edwards
was present . The Trial Examiner found both James and Cressel
Edwards to be credible witnesses. We find that Bailey made the
statement attributed to him by James Edwards. We further find,
in view of the foregoing, that Ellis Edwards was discriminatorily
transferred to Pineville because of his membership and activities
in the Union. 1,
Following his transfer to Pineville, Edwards not only engaged in
union activities there but on week ends returned to Somerset where
he manifested an active interest in the affairs of the Union. On
THE MIDDLE WEST CORPORATION , 559
December 24, 1937, H. S. Edwards, superintendent of the meter de-
partment, informed Edwards that he was discharged. Edwards
testified that on that occasion H. S. Edwards said that he had "just
had a talk with Mr. Bailey and Mr. Bailey said that [Edwards]
would have to go." Further, according to Edwards' testimony, H. S.
Edwards expressed reluctance to discharge him,, stating that his work
had been satisfactory and that more men were needed, but that the
matter of discharge was "out of his control." Edwards further
testified that he asked H. S. Edwards whether his union activities
had anything to do with the discharge and that Edwards replied,
"They, did, and the Company is not, going to tolerate any union."
H. S. Edwards testified that the discharge was occasioned by Bailey's
recoi'nmendation that personnel be reduced because the meter-testing
program was nearing completion. He admitted telling Edwards that
he "hated" to discharge him, but denied making any statements con-
cerning the Union or Edwards' union activities. The Trial Examiner
accorded full credence to the testimony of Ellis Edwards. We find
that H. S. Edwards informed Edwards, as stated above, that his
union activities were responsible for his discharge.
Sam Farrell, Jr., who worked on a construction crew under John
Brattan, a foreman hereinbefore referred to, also testified that early
in 1938, following Edwards' reemployment, discussed below, in the
Central Division, he overheard a conversation between Brattan and
Frank McGiboney, superintendent of the meter department, during
which the latter told Brattan that Edwards had been "fired out of the
Mountain Division" for his union activities and that the same thing
would happen to him in the Central Division "if he did not watch
himself." Brattan and McGiboney denied this testimony. We find,
as did the Trial Examiner, that McGiboney made the statement at-
tributed to him by Farrell. In view of Bailey's evident efforts to
suppress the organizing efforts of the Union, discriminatory transfer
of Edwards from Somerset to Pineville, the continuation of his
union activities both at Pineville and Somerset, and the statements
made by H. S. Edwards and McGiboney, we find that Edwards was
discriminatorily discharged at Pineville because of his membership
and activity in the Union.
On February 1, 1938, Edwards was rehired as a meter tester at
Danville in Central Division, without loss of pay from December 24,
1937, and with full restoration of seniority rights and other privi-
leges. Edwards testified that he had obtained permanent employ-
ment elsewhere after his discharge at Pineville, and that when
offered employment by McGiboney, meter superintendent of the Cen-
tral Division, he told McGiboney that he would not return to the
respondents' employ unless full restitution was made for his discrim-
l
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inatory dismissal , with which demand McGiboney complied. The
evidence shows that in response to an inquiry relative to Edwards,
11. -S. Edwards, meter superintendent at Pineville, wrote a letter to
McGiboney, dated January 9, 1938, in which he praised Edwards,
made no mention of his union activities, and recommended his
employment.
Edwards continued his union activities at Danville, circulating an
application for a charter in an effort to establish a new local to
replace one previously disbanded, solicited membership, and was
generally active in. behalf of the Union. Edwards presented the
charter application to George Kerlin, brother-in-law of McGiboney
and substation foreman at Danville, and when circulating it at Eliza-
bethtown, to Ralph Peltzer, a brother-in-law of Niemeyer, district
manager at Elizabethtown, and asked them to sign.
Edwards was discharged by McGiboney on November 1, 1938. He
testified'that when he asked McGiboney whether his union activities
were responsible for the discharge, McGiboney replied that union
leaders were being silenced and discredited by discharge "as fast as
we know who they are." McGiboney denied any mention of union
activities to Edwards, and testified that the discharge was occasioned
by the completion of the meter-testing program in the Central Divi-
sion. The Trial Examiner credited the testimony of Edwards con-
cerning the foregoing conversation. We find that McGiboney made
the statement attributed to him by Edwards.
In discharging Edwards on November 1, 1938, the respondents did
not adhere to the seniority policy contained in.the policy letters issued
by them in September 1937 and October 1938, wherein they stated
that in decreasing their personnel they would give "due consideration
to seniority in service in cases where talent and ability are equal
among employees to be discharged.", Whereas Edwards had been in
the respondents' employ since 1932 and worked on the meter -testing
program since June 1935, Hoskins, who was employed as a meter
tester, in November 1935, was retained. H. S. Edwards testified that
Hoskins was retained to work on water meters on which Edwards had
no experience. Edwards admitted, however, that Hoskins likewise
had no experience on water meters. Moreover, Brown, the respond-
ents' vice president, testified that two men hired expressly for the
meter-testing program also were retained on completion of the proj-
ect. The respondents did not 'contend that the ability of these men
was superior to that of Edwards.
Shortly after his discharge, Edwards saw Charles B. Hanna, divi-
sion manager, and complained that he had left a permanent job upon
the understanding that his employment in the Central Division was
also to be permanent. 'Hanna told Edwards,that,he would see what
THE MIDDLE WEST CORPORATION 561
he could do for him and thereafter contacted George A. Irvine, dis-
trict manager at Danville, with respect to 'Edwards' reemployment.
Several weeks after his conversation with Hanna, Edwards heard of
an opening for a meter reader and service man and went to see
Irvine. He testified that Irvine asked him if he was a member of
the Union, and that he replied in the affirmative. Irvine then asked
Edwards about his qualifications and finally said "You fill the bill,"
and stated that he would send in a pay-roll authorization to the Lex-
ington office. Irvine admitted that he "might have" said to Edwards
"You fill the bill," but tdenied stating that he would send a pay-roll
authorization to the Lexington office or questioning Edwards as to
his union membership. We credit, as did the Trial Examiner, Ed-
wards' version of his conversation with Irvine. Edwards did not get
the job, and a new employee by the name of Thrackmorton was hired
instead. E. W. Brown, vice president of the respondents, testified
that he did not know whether Thrackmorton was hired as a meter
tester or not, but that his "previou"s experience would not qualify him
for a meter tester any more than it would qualify him for gas dis-
tribution." He also stated that Clyde Bate, an old employee, had
been selected to fill the vacancy then existing in the Danville district.
Irvine testified, however, that he hired Thrackmorton in December
1938 because he needed a man for service work on both electric and
gas meters, meter reading, and clerical work, and that Bate was not
employed until ' after Thraackmorton left in April 1939. Irvine of-
fered no explanation for his failure to reemploy Edwards, and, as
stated above, admitted that he was qualified to fill the position then
available.
In view of the fact that Edwards was discriminatorily transferred
from Somerset in November 1937 and discriminatorily discharged at
Pineville in December 1937, and in consideration of all the findings
heretofore made with respect to Edwards, we conclude that lie was
again discharged on November 1, 1938, and refused employment
thereafter because of his membership and continued activity in the
Union.
We find- that the respondents, on November 1, 1938, discharged,
and thereafter refused to'reinstate Ellis Edwards to his former or
a substantially equivalent position because 'of his membership and
activities in the Union, and that they thereby discriminated in regard
to his hire and tenure of employment, discouraged membership in
the Union, and interfered with, restrained, and coerced their em-
ployees' in the exercise of the rights guaranteed in Section 7 of the
Act.
Ira Braswell was first regularly employed by the respondents
in March 1925 as an apprentice in the meter department' at Win-
562 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
chester in the Northern Division. He later became a first-class meter
man and from March 1935 until his discharge on June 1, 1938, was
engaged in meter work in connection with the respondents' meter-
testing program. At the time the program was inaugurated, Bras-
well was the only, experienced man on the meter program in the
Northern Division 17 He was a charter member of the Winchester
local of the Union, becoming its treasurer, business manager, and
a member of the executive board. • He arranged for meetings of the
Union, secured speakers, and later served on, the committee chosen
to negotiate a contract with the respondents. As one, of the most
active union members in the Northern Division, his union activities
were well known to the respondents."'
On June 1, 1938, Hugh Hemphill, superintendent of the meter
department, handed Braswell a letter reading as follows :
Tt is now necessary for economic reasons to return to a normal
schedule and to concentrate all meter shop work at Maysville.
We, therefore, find it necessary to dispense with your services
as of this date. In doing this full consideration has been given
to the amount of work accomplished, workmanship, and the
time in service.
Braswell went to Lexington that afternoon to seek Watt's help in
securing reinstatement. According to Braswell, Watt told him that
there was nothing he could do for him. Watt testified that he told
Braswell he would do what he could to help him, but that the fol-
lowing day Braswell filed charges with the Board and thereafter
Watt made no effort towards securing his reemployment. Braswell
saw Watt for a second time in the latter part of June, and testified
that on that occasion. Watt made disparaging remarks concerning
the Board and the Union and asked, him to cooperate with the re-
spondents by furnishing the names of active union members in their
employ. Watt denied Braswell's version of their conversation and
testified that he merely told, Braswell that he would approve any
arrangement for reemployment that Braswell could work out with
W. P. Hackett, district manager at Winchester. We are in agree-
ment with the conclusion of the Trial Examiner that Braswell over-
stated and exaggerated the substance of Watt's remarks to him
and find that Watt did not make the statements attributed to him
by Braswell.
17 Prior to June 1, 1938, Braswell, Charles Bate, Eveiett Estill , and Thomas Bond, were
the only men engaged in testing and repairing meters in the Northern Division : Braswell
having had longer continuous service with the respondents than any of the otbbr three men
1s In the latter part of April 1938 Braswell told Curtis. district manager at Mt. Sterling,
about a meeting which he had arranged to be held at Mt - Sterling . Curtis said, "John
L. Lewis has got to have another meeting , has he?" Biaswell then replied , "Yes, we
are having a union meeting , but it is not John L Lewis ," to which Curtis responded,
"It is Bill Green, then."
THE MIDDLE WEST CORPORATION 563
Robert Coldiron, an employee whose testimony is hereinbefore
referred to, testified that on the day following Braswell's discharge,
he and a group of other employees were gathered in a room in the
Elizabethtown office, as was customary before reporting to work,
when Zack Lusby, the district manager, entered and told them that
Braswell had been fired the day before for his union activities and
that it "should be a warning to the rest of us to stay out of it."
Ellis Edwards, who was also present on this occasion, corroborated
Coldiron's testimony as to the incident. Lusby denied ever having
made such a statement. The Trial Examiner found Coldiron to
be a credible witness and attached no credence to Lusby's denial:
We find that Lusby made the statement as testified to by Coldiron
and Edwards.
The respondents 'contend that Braswell was discharged because
of the completion of the meter-testing program and because he was
less efficient than Bate and Estill, who were retained.la Brown, vice-
president of the respondents, testified that he decided Braswell was
inefficient in 1925 "the first time I ever saw him," and that he "didn't
want him in -the Mountain Division." Hemphill, meter superin-
tendent, testified that he selected Braswell for dismissal in pref-
erence to Bate and Estill on the basis of his "idea of what each
man was doing" and cited in support of his action the following
work record allegedly showing the comparative efficiency of the four
men doing meter testing work for the period between May 25, 1935
to June' 4, 1938:
Type of test Bate Estill Braswell Bond
Complaint_______________________ _______________ 72 17 411 56
New meters______________________ ______________________ 459 282 1088 445
Old meters_______________________________________________ 5983 4965 3457 3461
Total___________________________________ 6514 5164 4956 3962
Percent of total __________________________________________ 31 6 25 2- 24 0 19 2
Hemphill admitted that he had not compiled the above work record
prior to discharging Braswell, and it is impossible to believe that his
asserted ability to estimate the amount of work performed by the
four men over a period of 3 years would reveal that Estill had tested
1.2 per cent more meters than Braswell. Moreover, Braswell's ap-
19 Bond was discharged at the same time as Braswell , but was rehired in October 1'038
as a member of the inventory crew Bond , who had joined the Union, testified that he
"dropped out" prior to his discharge because he "Just lost interest ." Bate and Estill
likewise resigned from the Union Bate testified that he could not remember the date
he resigned , but that it was before Braswell iias discharged , and that his decision to do
so was founded on the "general welfare of the employees . we were not making any
progress " Estill, who had been secretary of the local , also testified that he did not
remember exactly when he gave up his membership , but that it was motivated by a "lack
of interest."
413597-42-voh, 28-37
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
parent deficiency in the number of old meters above shown to have
been tested by him is more than compensated for by his completion
of almost three times as many complaint tests as were made by all
of the other three men combined, which latter type of test Hemphill
admitted took more time because it was "often necessary to travel
a considerable distance to make 'that -test." Braswell was paid be-
tween $15 and $20 per month more than any other man in the meter
department, and as late as October 1, 1937,-his salary was increased
from $127.50 to $135 a month. It is impossible to reconcile this action
by the respondents toward the end of a 3-year period during which,
as contended in their brief, Braswell's efficiency had decreased 66
per cent. Furthermore, nothing was said to Braswell either before
or at the time of his discharge to the effect that his work was in any
way unsatisfactory. In fact during the spring of 1938 when Bras=
well had an opportunity to secure another position and asked Wester,
the respondents' personnel director, what his future employment
status would be on completion of the meter-testing program, Wester
told him that his work was satisfactory and that if he wanted to
continue with the respondents there was no reason why he should not
do so. In view of the foregoing, we find no merit in the respondents'
contention that Braswell was inefficient. Nor do we find support in
the record for the respondents' further contention that Bate and
Estill were retained also because of their versatility in performing
various types of work in the meter department. The evidence fails
to show that there existed or that Braswell was unable to perform
any work in the meter department which allegedly necessitated the
retention of Bate and Estill. Notwithstanding our finding that Bras-
well had given an inaccurate account of his conversation with ,Watt,
Braswell's known leadership in the activities of the Union in and
around Winchester, the respondents' efforts, as hereinbefore found,
to discredit and discourage membership in the Union, the failure
of the respondents to sustain their contention that Braswell was
inefficient and incapable of performing work other than that involved
in the meter-testing program, and the respondents' violation of their
announced labor policy in disregarding Braswell's extensive expe-
rience and length of service in their employ, all lead us to the con-
clusion, reached also by the Trial Examiner, that Braswell was dis-
charged because of his membership and activity in the Union.
We find that the respondents, on June 1, 1938, discharged, and
thereafter refused to reinstate Ira Braswell to his former or a sub-
stantially equivalent position because of his membership and activi-
ties in the Union, and that they thereby discriminated in regard to
his hire and tenure of employment, discouraged membership in the
THE MIDDLE WEST CORPORATION 565
Union, and interfered with, restrained, and coerced their employees
in the exercise of the rights guaranteed in' Section 7 of the Act.
Robert J. Lindsay was first employed by the respondents on Feb-
ruary 22, 1926, as a mechanic's helper. He was later promoted to the
position of plant operator at Paducah, where except for - a brief
period in' 1937, he worked for over 9 years until his discharge on
June 22, 1938. Lindsay joined the Union in May 1937, became an
officer of the Paducah local, was its representative at a union con-
ference held in Lexington, and was otherwise known to be active in
union affairs.
In the latter part of May 1937, shortly after L. F. Dempsey, power
plants superintendent, was put in charge of the Paducah plant,
Dempsey'questioned J. V. McGregor, chief engineer at Paducah, con-
cerning the various employees and particularly Lindsay. McGregor
outlined- the nature of Lindsay's duties and was thereupon instructed
by. Dempsey to transfer Lindsay to repair work at a lower rate of, pay.
Lindsay complained of his demotion to W. H. Wilson, international
representative of the Union, who thereafter discussed Lindsay's griev-
ance with Dempsey and Watt. On July 7, 1937, Lindsay was returned
to his former position as operator and thereafter was granted several
pay increases which raised his former salary of $120 to $140 a month.'
Dempsey testified that he ordered Lindsay's demotion because of
his inefficiency, but that Lindsay was restored, to his former job as
plant operator due to an increase in plant operation and because "we
gave preference to those older men." McGregor testified that Lindsay
failed to perform small repair jobs normally assigned to operators
when the plant was not in operation and that "he usually always had
some excuse he didn't have time, or something like that." S. F.
Brown, also a plant operator at Paducah and a witness for the re-
spondents, testified that he found unfinished work when he went on
duty following Lindsay's shift, but that he "couldn't say whether he
(Lindsay) could have gotten it all done before I got there or not."
Brown admitted on cross-examination that Lindsay "seemed to be" a
"pretty good plant operator." Lindsay was never informed by the
respondents that his demotion was due to unsatisfactory work, and it
is not reasonable to assume that the respondents would have accorded
him preference in ordering his reinstatement as an operator and sub-
sequently increasing his pay if in fact he was inefficient. We are con-
vinced that neither was Lindsay inefficient nor was his alleged ineffi-
ciency the cause of his demotion. Indicative of the true motive for his
demotion is Lindsay's testimony that the day before he was reinstated
as an operator, E. R. McBride, foreman of the repair crew to which
Lindsay had been assigned, told him that another operator was to be put
on the Paducah plant and that he thought Lindsay would get the job if
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he dropped out of the Union and "let the union go to Hell." McBride
denied mentioning the Union in his conversation with Lindsay, but
admitted telling him that another operator was to be put on and that
he discussed the possibility of Lindsay's obtaining the job. He also
testified that McGregor had asked him if he thought Lindsay had
"straightened out" and would make a good operator. We credit, as
did the Trial Examiner, Lindsay's version of the foregoing conversa-
tion and find that McBride made the statements as testified to by Lind-
say. We have already found that Dempsey, who ordered Lindsay's
transfer, was hostile to the Union, and in view of Lindsay's known
union activities and all the other circumstances surrounding the inci-
dent of his transfer, we find, in accordance with the conclusion of the
Trial Examiner, that the real reason for Lindsay's demotion was his
activity in the Union.
On the night of June 22, 1938, a 2,300-volt cable exploded in the
Paducah plant, causing an interruption in service which lasted from
11: 30 p. in. to 12: 10 a. in. Lindsay, who was on duty at the time,
sent an employee of another company, who happened to be present,
to summon McGregor from his home to the plant. When McGregor
arrived, he endeavored to locate the trouble and, following a second
explosion, decided that the quickest way to restore service would he
to throw the disconnecting switches located outside the plant., With
the assistance of Lindsay and Stice, a night service man who had
just arrived at the plant, McGregor threw the switches and service
was restored.
On July 1, 1938, Lindsay was discharged by McGregor acting
under orders from Dempsey, allegedly because of his prior inefficiency
and his failure promptly to restore service after the breakdown on
June 22. McGregor testified that service was restored 10 minutes
after he arrived at the plant, and that Lindsay himself could have
disconnected the outside switches in 5 minutes. Lindsay, however,
testified that it took approximately 20 minutes to restore service
after McGregor's arrival. Whatever time was taken to rectify the
trouble, it is evident that Lindsay did not act unreasonably in sum-
moning McGregor to the plant rather than attempt to restore service
by himself. Lindsay's conduct under the circumstances was con-
sistent with a rule of the respondents which provided that "where
employees are called upon to do work which they consider hazardous
and which in their judgment is not provided with sufficient safeguards
they are expected to bring the matter to the attention of the foreman
before commencing such work." S. F. Brown, a plant operator here-
inbefore referred to, testified that on one occasion when a breakdown
occurred while he was on duty he telephoned to the power plants'
superintendent who came to the plant from his home; and that, ap=
THE MIDDLE WEST CORPORATION -567
proximately 25 minutes elapsed before they had been able to restore
service.
Brown, vice president of the respondents, testified that the re-
spondents would not customarily discharge an operator for making
a single mistake if his record was good, but maintained that Lindsay's
efficiency prior to June 22 also was taken into consideration. We have
previously found, however, that the evidence does not sustain the
respondents' contention that Lindsay was inefficient, and even assum-
ing that he was derelict in the performance of minor duties, the
increase in Lindsay's salary, the last of which was granted shortly
before his discharge, belie any assertion by the respondents that such
omissions were regarded as serious. It is also significant that the
discriminatory demotion and subsequent discharge of Lindsay were
both effected by Dempsey, it nowhere appearing that McGregor, who
as Lindsay's immediate superior logically would be the one to urge
disciplinary measures for inefficiency, ever suggested that Lindsay
be either demoted or discharged. A consideration of all the evi-
dence impels us to conclude that Dempsey, in furtherance of his
previously expressed opposition to the Union, availed himself of the
breakdown incident as a pretext to discharge Lindsay because of his
membership and activity in the Union.
We find that the respondents discharged Robert J. Lindsay on
July 1, 1938, and thereafter refused to reinstate him to his former or
a substantially equivalent position because of his membership and
activity in the Union; and that they thereby discriminated in regard
to his-hire and tenure of employment and discouraged membership in
the Union, and interfered with, restrained, and coerced their em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondents set forth in Section
III, A and B above, occurring in connection with the operations of
the respondents 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 respondents have engaged in certain unfair
labor practices, we shall order that they cease and desist from such
practices and, to effectuate the purposes of the Act, we shall order the
respondents to post notices stating that they will not engage in the
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conduct from which they are ordered to cease and desist. The re-
spondents' employees will thus be assured that they may exercise the
rights guaranteed by the Act without fear of interference, restraint,,
or coercion. As a further means of removing and avoiding the
consequences of the respondents' unfair labor practices, we shall order
the respondents to take certain affirmative action more particularly
described below.
Having found that the respondents discriminated in regard to
the hire and tenure of employment of James B. Crawford, Ellis
Edwards, Ira Braswell, and Robert J. Lindsay, we shall order the
respondents to offer each of said persons full reinstatement to his
former position, and to make each whole for any loss in pay he may
have suffered by reason of such discrimination, subject to the follow-
ing qualification. The charges herein were first filed with respect to
Crawford on June 27, 1938, Edwards on May 20, 1939, Braswell on
June 2, 1938, and Lindsay on August 23, 1938. The respondents con-
tend in their answer that the delay of the complainants and the Union
"in obtaining the issuance of the complaint" is a bar both to reinstate-
nient and to the payment of back pay. We find merit in the re-
spondents' contention only in so far as it pertains to the effect of
the delay in the filing of charges upon the period for which we will
order the payment of back pay. Since charges were first filed ap-
proximately 1 year after Crawford's discharge and almost 7 months
after Edwards', we shall order the respondents to make them whole,
only for the period from the date of the filing of charges to the date
of the respondents' offer of reinstatement by payment to each of
them of a sum equal to that which he normally would have earned as
wages during said period, less his net earnings during said period.22
Since there was no appreciable delay in the filing of charges with
respect to Braswell aiid Lindsay, we shall follow our usual practice
and order the respondent to make them whole by payment to each of
them of a sum of money equal to that which he normally would
have earned as wages from the date of his discharge to the date of the
offer of reinstatement, less his net earnings during said,period.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
22 By "net earnings " is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere. See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R B . 440. Monies
received for work performed upon Federal , State, county, municipal , or other work-relief
projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B.,
decided by United States Supreme Court, November 12, 1940.
THE MIDDLE WEST CORPORATION 569
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, affiliated with
the A.-F. of L., 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, employ-
ment of James B. Crawford, Ellis Edwards, Ira Braswell, and Rob-
ert J. Lindsay, thereby discouraging membership in International
Brotherhood of Electrical Workers, affiliated with the A. F. of L.,
the respondents have engaged in and are engaging in unfair labor
practices, within the meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act, the.
respondents have engaged in and are engaging in unfair labor prac-
tices within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
5. The respondent has not, by the circulation of an executive
policy letter or by the seizing of union records from the locker of a
union employee, engaged in unfair labor practices, within the mean-
ing of Section 8 (1) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respond-
ents, Kentucky Utilities Company and Kentucky Power & Light
Company, Lexington, Kentucky, and their officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Electrical Workers, affiliated with the A. F. of L., or any other labor,
organization of their employees, by discharging or refusing to rein-
state any of their employees or in any other manner discriminating
in regard to their hire or tenure of employment or any term or condi-
tion of employment;
(b) In any other manner interfering with, restraining, and co-
ercing their employees, in the exercise of their right to self-organi-
zation, to form, loin, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
e
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to James B. Crawford, -Ellis Edwards, Ira Braswell,
and Robert J. Lindsay, immediate and full reinstatement to their
'former positions or to substantially equivalent positions, without prej-
udice to their seniority and other rights and privileges;
(b) Make whole they said James B. Crawford for any loss he may
have suffered by reason of the respondents' discrimination against
him by payment to him of a sum of money equal to that which he
normally would have earned as wages during the period from June
,27, 1938, the date on which a. charge was first filed as to him, to the
-date of the respondents' offer of reinstatement, less his net earnings
during that period;
(c) Make whole the said Ellis Edwards for any loss of pay he
may have suffered by reasons of the respondents' discrimination
against him by payment to him of a sum of money equal to that
which, he normally would have earned as wages during the period
from May 20, 1939, the date on which a charge was first filed as to
him, to the date of the respondents' offer of reinstatement, less his
net earnings during that period;
(d) Make whole the said Ira Braswell and Robert J. Lindsay for
any loss of pay they may have suffered by reason of the respondent's
discrimination against them by payment to each of them of a sum of
money equal to that which he normally would have earned as wages
during the period from the date of his discharge to the date of the
respondents' offer of reinstatement, less his net earnings during said
period ;
(e) Post immediately in conspicuous places on the respondents'
premises, and maintain for a period of at least sixty (60), consecu-
tive days from the date of posting, notices to their employees, stat-
ing: (1) that the respondents will not engage in the conduct from
which they are, ordered to cease and desist in paragraphs 1 (a) and
(b). of this Order; (2) that the respondents will take the affirmative
action set forth in paragraphs 2 (a), (b), (c), and (d) of this Order;
and (3) that the respondents' employees are free to become or remain
members of International Brotherhood of Electrical Workers, affili-
ated with the A. F. of L., and that the respondent will not discrimi-
nate against any employee because-of membership or activity in said
-labor organization;
(f) Notify the Regional Director for the Ninth Region in writing
within ten (10) days from the date of this Order what steps the
respondents have taken to comply therewith.
IT IS FURTHER ORDERED that the complaints, in so far as they allege
that the respondents, by circulating an executive policy letter-and,by
THE MIDDLE WEST CORPORATION 571
seizing union records from the locker of a union employee, have
engaged in unfair labor practices within the meaning of Section 8 (1)
of the Act, We, and they hereby are, dismissed.
AND IT IS FURTHER ORDERED that the complaints against The
Middle West Corporation, Chicago, Illinois, be, and they hereby are,
dismissed. -
CHAIRMAN HARRY A. MILLIS took no part in the consideration' of
the above Decision and Order.