West Texas Utilities Co.

National Labor Relations Board - Board Decisions

Mar 30, 1940

22 N.L.R.B. 522 (N.L.R.B. 1940)

In the Matter Of WEST TEXAS UTILITIES COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS
Cases Nos. C-847 and R-998.-Decided March, 30, 1940
Electric, Gas, Water, and Ice Utility Industry-Interference, Restraint, and
Coercion: anti-union statements by managerial and supervisory employees to
supervisory and ordinary employees interfering with rights guaranteed by the
Act to supervisory, as well as to non-supervisory, employees ; distribution by
managerial employees of a letter disparaging the Union and indicating that per-
sons employed by another concern had been discharged by that concern for union
activities ; suggestions to employees that they withdraw charges filed by the Board ;
publishing a distorted and incomplete account of employees' rights under-the Act;
pay increases granted at time of union organization campaign to discourage mem-
bership in the Union ; spying upon union organizers ; surveillance of activities of
union organizers and of union activities of employees ; conduct of an election
among employees and publication of results thereof in such a manner and under
such circumstances as to discourage membership in Union-Disci imination: found
as to transfer and subsequent discharge of two employees and as to discharge of
another ; allegations not supported by evidence dismissed as to two employees, one
of whom was allegedly discharged both for union activity and for giving tes-
timony under the Act--Company-Donti-nated Union: support, domination of,
and interference with formation and adminstration of the "Committee." an
unaffiliated labor organization and its successor, the Association ; diversion
of employee organizational efforts from affiliated union by respondent's man-
ifestations of hostility thereto ; suggestion by respondent that employees were
free to form and join an unaffiliated organization "in opposition to dues-col-
lecting unions" ; participation by supervisory employees in formation and ad-
ministration of unaffiliated organizations without interference from respondent
contrasted with respondent's efforts to discourage employees of similar status
from engaging in activity of affiliated Union; because of unneutral attitude man-
ifested by respondent toward the affiliated and unaffiliated organizations com-
peting for membership among its employees, the Board rejects upon facts of
this case respondent's claim that eligiblity of supervisory employees for affiliated
Union relieves respondent of responsibility for their activities in connection with
the unaffiliated organizations ; ordered to refuse to recognize-Reinstatement Or-
dered: for employees discriminatorily transferred and discharged, to positions
held by them>prior to transfer, and for employee discriminatorily di`s'charged;
prior claim of total and permanent disability in workmen's compensation suit by
discriminatorily discharged employee, held not to bar reinstatement where
employee subsequently notified respondent of readiness and ability to return to
work-Back Pay/: awarded-Investigation of Representatives: controversy con-
cerning representation of employees : dispute concerning Union's majority status
and appropriate bargaining unit-Unit Appropriate for Collective Bargaining:
controversy as to whether two districts or entire system, comprising nine, should
constitute unit : held that, especially in view of respondent's efforts to prevent
22 N. L R. B, No 24.
522
WEST TEXAS UTILITIES COMPANY 523
organization, employees in the two districts should not be compelled to await
complete organization of nine districts before fully enjoying the righta guaran-
teed under the Act; controversy as to exclusion of members of maintenance and
repair gang : these employees found to be common laborers and therefore ex-
cluded from unit of electrical workers ; Board finds appropriate a unit of elec-
trical generation, transmission, distribution, installation, and service employees,
excluding supervisory employees, clen ical employees, sales employees, full-time
meter readers, chemists, hourly paid maintenance and repair men, night watch-
men, janitors, yard clean-up and delivery men, but including employees at least
partially engaged in repair and installation of meters and appliances-Election
Ordered: to take place at such time as Board shall hereafter direct.
Mr. L. AT. D. Wells, Jr., for the Board.
Collins, Jackson & Snodgrass, by Mr. Scott Snodgrass and Mr.
H. E. Jackson, of San Angelo, Tex., and Mr. A. K. Doss, of Abilene,
Tex., for the respondent.
Mr. Karl H. Mueller, Mr. Harold Mueller, and Mr. V. L. Ingram,
of Fort Worth, Tex., and Mr. Lawson Wimberly, of Austin, Tex., for
the Union.
Mr. James P. Farrell, of San Angelo, Tex., for the Association.
Mr. William Stix, of counsel to the Board.
DECISION
ORDER
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On December 14, 1937, International Brotherhood of Electrical
Workers, herein called the Union, filed with the Regional Director
for the Sixteenth Region (Fort Worth, Texas), herein called the Re-
gional Director, a charge alleging that West Texas Utilities Company.
San Angelo, Texas, herein called the respondent, had engaged in and
was engaging in unfair labor practices within the meaning of Sec-
tion 8 (1) and (3) of the National Labor Relations Act, 49 Stat. 449,
herein called the Act. Amended charges alleging violations of the
same subdivisions of Section 8 of the Act were filed by the Union with
the Regional Director on March 19 and on April 26, 1938.
On or before December 28, 1937, the Union filed with the Regional
Director a petition alleging that a question affecting commerce had
arisen concerning the representation of employees of the respondent
in its generation, transmission, and distribution departments at San
Angelo and McCamey, Texas, and requesting an investigation and
certification of representatives pursuant to Section 9 (c) of the Act.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On June 29 , 1938, the Board, acting pursuant to Section 9 (c) of
the Act, and Article III, Section 3, of National Labor Relations Board
Rules and Regulations-Series 1, as amended, herein called the Regu-
lations, ordered an investigation and authorized the Regional Direc-
tor to conduct it and to provide for an appropriate hearing upon due
notice; and , acting pursuant to Article III, Section 10 (c) (2), of
the Rules and Regulations, further ordered that the case arising upon
the petition be consolidated for purposes of hearing with the case
arising upon the charges filed by the Union.
Upon the charge and amended charges filed by the Union, the Board,
by the Regional Director, issued its complaint dated July 14, 1938,
against the respondent , alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and (3) and Section 2 (6) and (7) of
the Act.
On July 22 , 1938, the respondent filed with the Regional Director
motions to dismiss the complaint and the petition and answers to the
complaint and the petition . Pursuant to notice, a consolidated hear-
ing in the complaint and representation cases , herein called the first
hearing, was held in San Angelo, Texas, from July 25 through August
6, 1938, before Harlow Hurley, the Trial Examiner duly designated
by the Board.
Upon a second supplemental charge, filed by the Union with the
Regional Director on August 4, 1938, the Board, by the Regional
Director, issued its supplemental complaint, dated August 6, 1938,
alleging that the respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of
Section 8 ( 1) and ( 2) and Section 2 (6) and (7) of the Act. The
respondent filed an answer to the supplemental complaint in which,
without waiving its motion to dismiss for want of jurisdiction, it
denied the allegations thereof.
Pursuant to notice , a hearing on the original and supplemental
complaints and on the petition , herein called the second hearing,
was held in San Angelo, Texas, on August 15 and 16, 1938, before
Harlow Hurley, Trial Examiner , as a continuation of the earlier
proceeding.
On August 25, 1938, the Board ordered that, in accordance with
Article II, Section 37, of the Regulations , proceedings in these cases
be transferred to and continued before the Board for action pur-
suant to Article II, Section 38, of the Regulations ; that no Inter-
mediate Report be issued by the Trial Examiner ; that pursuant
to Article II, Section 38 (d), of the Regulations , Proposed Findings
of Fact , Proposed Conclusions of Law, and Proposed Order be
issued; and that the parties should have the right within 10 days
WEST TEXAS UTILITIES COMPANY 525
from the receipt of the Proposed Findings, Conclusions, and Order,
to file exceptions, to request oral argument before the Board, and to
request permission to file a brief with the Board.
On October 21, 1938, the Board ordered that, in accordance with
Article II, Section 38 (d), and Article III, Section 8, of the Regu-
lations, the first and second hearings and the testimony, evidence,
and exhibits taken therein and the motions and rulings made therein
be set aside and stricken from the record,in these proceedings ; that
the Board's order of August 25, 1938, be revoked ; that the proceed-
ings be remanded to the Regional Director for the purpose of con-
ducting a new hearing; and that the Regional Director be authorized
to issue notices of a new hearing.
On November 7, 1938, the Union filed with the Regional Director
an amended charge and an amended petition for investigation and
certification of representatives pursuant to Section 9 (c) of the Act.
Upon this amended charge and amended petition for investigation,
the Board, by the Regional Director, issued its amended complaint
and notices of hearing on the amended complaint and petition, dated
December 12, 1938.1
The amended complaint alleged that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1), (2), (3), and (4) and Section 2 (6) and
(7) of the Act. Copies of the amended complaint and of the accom-
panying notice of hearing were duly served on the respondent, the
Union, and the Utilities Workers Protective Association, herein called
the Association. The amended complaint, as further amended with-
out objection during the hearing held on December 19, 1938, herein
called the third hearing, alleges in substance that, because of their
membership and activities in the Union, the respondent discrimina-
torily transferred Volney R. Quinlan about November 28, 1937, and
W. H. Wills about December 5, 1937, from the positions previously
held by them, and discriminatorily discharged Wills about January
15, 1938, G. L. Yarbrough about February 12, 1938, R. S. Elder about
April 19, 1938, Quinlan about July 23, 1938, and J. T. Joyner about
October 8, 1938; that Joyner was discharged for the further reason that
he testified in this proceeding; that the respondent dominated and in-
terfered with the formation and administration of a labor organiza-
tion which acted through an employees' representation committee,
herein called the Committee, and with the formation and administra-
tion of the successor of that organization, the Utilities Workers Pro-
tective Association; that the respondent spied on meetings of the
1 Between September 1, 1938, and November 9, 1938 , the respondent filed a number of
motions which were denied by an order of the Board on November 18, 1938, and subse-
quently withdrawn by the respondent in a stipulation entered into by all the parties on
December 19, 1938. See infra, footnote 3.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union ; that the respondent questioned employees about their member-
ship in the Union and by oral statements and by articles in "Electric
Times," a magazine published by the respondent for its employees, in-
formed employees of its hostility to labor unions; that the respondent
conducted an election among its employees to ascertain whether or not
they desired a union- to represent them; and that, by these and other
acts the respondent interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
On December 15, 1938, the Association filed with the Regional Direc-
tor motions to intervene in the representation and in the complaint
cases.
On December 19, 1938, the respondent filed with the Regional Direc-
tor (1) motions, which are hereby denied, to dismiss the complaint
and to dismiss the petition on the ground that the Board is without
jurisdiction of the respondent; (2) an answer to the amended com-
plaint in which it admits certain allegations as to its business, denies
other allegations, and makes affirmative allegations relating to cer-
tain of the unfair labor practices set forth in the complaint; and (3)
aneanswer to the-amended petition in which it alleges that the Union
does not represent a majority of its employees in the unit set forth in
the petition, denies that such unit is appropriate for collective bargain-
ing, denies that a question affecting commerce has arisen, and alleges
that all employees of the respondent or, alternatively, all employees of
the respondent except those in District D, constitute an appropriate
unit.
Pursuant to notice, a consolidated hearing in the complaint and
representation cases was held in San Angelo, Texas, on December 19,
1938, before Thomas S. Wilson, the Trial Examiner duly designated
by the Board. The Trial Examiner granted the Association leave to
intervene in the complaint case with respect to the trial of issues aris-
ing under Section 8 (2) of the Act, and also leave to intervene in the
representation case. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues was afforded all parties.' During the course of the hearings the
Trial Examiner made rulings on motions and on objections to the ad-
mission of evidence. The Board has reviewed the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed.
By a stipulation entered into on December 19, 1938, between the
Board, the respondent, the Union, and the Association all the parties
agreed that the record made on the first and second hearings, including
all testimony of witnesses, written exhibits, stipulations as to facts,
2 Participation by the Association was limited to issues arising in the representation
case and under Section 8 (2) of the Act in the complaint case
WEST TEXAS UTILITIES COMPANY 527
and all evidence introduced at those hearings, be considered as the
record made on the third hearing, and that all objections reflected
by that record should be preserved for the benefit of the parties mak-
ing them; and all the parties agreed, moreover, that at the third
hearing any party might introduce evidence pertaining to any issue.'
During' the' course of the third' hearingit 'was orally stipulated 'by all
the parties that any and all evidence wherever appearing in the record
of these proceedings might be considered by the Board in connection
with any issue to which it is relevant and material, subject to any
objections and exceptions appearing in the record. Since all the in-
terested parties have agreed to reinstatement of the record of the first
two hearings for the purpose of the third hearing, the Board has no
objection thereto and approves the stipulation.
On January 5, 1939, the Board issued an order that, in accordance
with Article II, Section 37, of the Regulations, this proceeding be
transferred to and continued before the Board for action pursuant
to Article II, Section 38, of the Regulations; that no Intermediate
Report be issued by the Trial Examiner; that pursuant to Article II,
Section, 38 (d), of - the Regulations, Proposed Findings of Fact, Pro-
posed Conclusions of Law, and Proposed Order be issued; and that
the parties should have the right, within 10 days from the receipt
of the Proposed Findings, Conclusions, and Order to file exceptions, to
request oral argument before the Board, and to request permission
to file a brief with the Board. This order was served on all the parties.
On October 14, 1939, the respondent, the Union, the Association, and
counsel for the Board entered into stipulations with relation to certain
facts pertinent to the issue of the Board's jurisdiction and to the deter-
mination of the unit appropriate for collective bargaining.
On December 13, 1939, the Board issued its Proposed Findings,
Proposed Conclusions of Law, Proposed Order, and Proposed Direc-
tion of Election, to which exceptions were filed by the respondent and
the Association on January 15 4 and by the Union on January 16, 1940.
8 By this stipulation ( 1) the respondent withdrew all its motions filed in this proceeding
between September 1 and November 9, 1938, both inclusive , and agreed that the Board's
orders of August 25 , October 21, and of November 18, 1938, should stand with ' full force
and effect and that no legal objection to them would be raised at any time before the
Board or any Court of the United States ; and (2 ) the Union withdrew its request (which
does not appear in the Board's files) that the Board rescind its order of October 21, 1938,
and agreed that it stand with full force and effect and that no legal objection would be
raised at any time before the Board or any Court of the United States . Cf. supra,
footnote 1
4 By its exceptions the Association requested the Board to "set aside and vacate" certain
proposed findings or , alternatively , to reopen the case to permit the Association to establish
the contrary of those findings Since the amended complaint and the respondent's and
the Association 's answers thereto adequately raised the issue to which the findings in
question relate, since no substantial reason is shown by the Association for its failure
to adduce the evidence which it desires an opportunity to present ; and since the Associa-
tion has not specified the nature of the evidence which it proposes to adduce, we hereby
deny the request for a rehearing
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 25, 1940, the respondent filed a brief. Pursuant to
notice, oral argument was had on January 30, 1940, before the Board
in Washington, D. C. The respondent appeared by counsel and the
Union by its international representative and participated in the oral
argument.
The Board has considered the exceptions and brief filed by the
respondent and the exceptions of the Association and the Union but,
save in so far as they are consistent with the findings, conclusions,
and order set forth below, finds the exceptions to be without merit.
Upon the entire record in the proceedings, the Board makes the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
A. General nature of the respondent's business
The respondent, a subsidiary of The Middle West Corporation,°
is a Texas corporation with its principal office at Abilene, Texas. It
has assets of approximately $45,000,000, and operates throughout an
area of 45,000 square miles in 49 counties of, western Texas, pro-
viding electricity, water, gas, or ice service in 166 cities, and coln-
munities.6 The respondent maintains electric-generating plants of
an aggregate capacity of approximately 53,000 kilowatts, including
3 steam-power plants (1 at San Angelo with a capacity of 25,000
kilowatts, 1 at Abilene with a capacity of 5,000 kilowatts, and 1
near Quanah with a capacity of 15,000 kilowatts) and 16 smaller
electric-generating plants (including 14 operated by Diesel power),
of which 15 are used for standby purposes; 7 2,608 miles of integrated
electric transmission lines; 13 ice plants; 7 water plants with 140
miles of mains; and 1 gas plant with 8 miles of mains. Throughout
the entire system the respondent has approximately 1,000 employees.
In• 1937 electricity totaling 298 million kilowatt hours was generated
and gross revenues of $4,689,058 were realized from its sale to 13,265
commercial, municipal, and industrial and to 36,208 domestic cus-
tomers; 53 million cubic feet of gas were sold to 408 customers,
resulting in a gross revenue of $21,324; and 902 million gallons of
S The Middle West Corporation , a holding company, owns 52.72 per cent of the common
and 3127 per cent of the preferred stock of the Central & Southwest Utilities Company,
which in turn owns 99 . 72 per cent of the common stock of the American Public Service
Company , which in turn owns all of the common and 31 61 per cent of the preferred stock
of the respondent . These figures are as of November 30, 1936
The respondent provides some communities with mole than one of these types of
service.
7It is the respondent 's practice to supply the entire system by use of the San Angelo
and Quanah plants, keeping as heavy a load as possible on the latter plant at all times
and operating the Abilene plant only intermittently as needed.
WEST TEXAS UTILITIES COMPANY 529
water were distributed to 8,237 customers , yielding a total income of
$263,408.
Except for control relays located south of the Quanah power sta-
tion which prevent the flow of power northward but permit it
southward , no control is installed to interfere with the free flow of
electric power throughout the respondent 's entire transmission net-
work. The respondent 's lies are connected with those of Texas
Electric Service Company and power moves freely from one system
to the other , each company receiving from the other approximately
the salve amount of power as is delivered to it. The respondent
sells power to Pecos Valley Power & Light Company, which serves
oil fields in five counties of Western Texas." At a point in the
southern boundary of Hartley County, the respondent receives power
from, and at a point in the western boundary of Wheeler County,
delivers power to Southwestern Public Service Company. An emer-
gency interconnection is maintained with Central Power & Light
Company.' If the respondent were to cease operating its San Angelo
and Abilene plants, it could obtain sufficient power through its inter-
connections with other companies to enable it to meet its normal
peak loads.
At Abilene , which is the location of the respondent 's principal office.
the president and general manager, the vice president and general
superintendent , the superintendent of transmission , the meter super-
inteilclent , the production superintendent , and the construction super-
intendent have their headquarters. There the respondent maintains a
central repair shop for automobiles and a central storeroom for sup-
plies and merchandise . Abilene is the center of operations for numer-
ous dispatchers , engineers , maintenance crews, and electricians. For
customer service and routine local distribution , the respondent 's system
is divided into nine districts.10
The respondent , in the course of its operations during 1937, used
materials and supplies-exclusive of water and of fuel for its steam
and Diesel plants-of an aggregate value of $371 ,544.11. Of this
e Although it does not keep a regular operating crew on hand the Pecos Valley Com-
pany has an 18,000 -kilowatt generating plant which can be put into operation within 24
hours and which is mole than adequate to supply the normal load of its own customers
and of the respondent ' s customers in District H, who together requue approximately
13,000 kilowatts
6 Pecos Valley Power & Light Company and Central Power & Light Company ate subsicli-
aries of The Middle West Corporation
"These districts are designated by letters Some of the districts ate referred to in the
record by the names of cities where the respondent has its principal office within them, a^
follows D-Dalhart, E-Quanah; H-McCamey, K-San Angelo Eldorado, Mertzon, Ozone,
Sonora, and Sterling City-which are among the towns named infra-ate situated in
District K
530 DECISIONS OF NATIONAL LABOR,. RELATIONS BOARD
total, commodities to the value of $75,641.62,11 or approximately 20
per cent, were received from points outside Texas and additional com-
modities to the value of $215,399.68, or approximately 58 per cent,
were manufactured outside Texas but delivered from warehouses in
Texas.12 In 1937 the respondent received appliances for resale to the
value of $566,656, of which articles costing $39,195, or approximately
7 per cent, came directly from manufacturers outside Texas and addi-
tional articles valued at $523,397, or approximately 92 per cent,"
were manufactured outside Texas but delivered from warehouses
within the State.
B. The respondent's electrical customers
1. Interstate sales
On the Texas side of the Texas-Oklahoma border, near Quanah and
near Vernon, the respondent has interconnections with the electrical
transmission system of Southwestern Light & Power Company, herein
called Southwestern, a company which transmits and distributes power
within Oklahoma and which is a subsidiary of The Middle West Cor-
poration. On November 1, 1928, Southwestern and the respondent
entered into a contract whereby the respondent agreed to furnish to
Southwestern electrical energy under-"firm"- power of 5,000 kilowatts.
On May 26,,1934," by a supplemental agreement,. the amount of firm
power was increased to 8,500 kilowatts, which is equivalent to approxi-
mately 16 per cent of the respondent's aggregate generating capacity.
By the original agreement each company agreed to furnish to the other
"emergency" power. During the year 1937 the respondent delivered
alld sold to Southwestern approximately 41/2 million kilowatt hours
per month, constituting more than 1/6 of the power generated by the
respondent. The contract between the two companies was terminated
on November 1, 1938, but under a temporary arrangement the respond-
ent continued to furnish, and Southwestern to purchase, power in ap-
proximately the same quantity as it had previously. Negotiations
"This does not include purchases totaling $ 14,208 20 which were shipped partly from
points within and partly from points outside Texas ; nor, for lack of information about
the shipping point , does it include two shipments , totaling $3,894 , from companies outside
Texas
1=These materials include copper wire, aluminum cable. guy strand , creosoted pine poles,
lmhtning arresters , transformers , insulators , meters, switches , incandescent lamps , copper
pipe, copper tubing , and other commodities All fuel for steam and Diesel plants, of
which the total cost during 1937 was $426,702 45 , was purchased in Texas . Water used
in generating electiicity, as well as that distributed to customers , oiiginated in Texas
watersheds
"This includes a purchase of appliances valued at 878,288, some of which were shipped
to the respondent from outside Texas
-WEST, TEXAS UTILITIES COMPANY 531-
were in progress at the time of the third hearing looking toward the
conclusion of a new contract.14
2. Sales to railroads engaged in interstate commerce
At Cisco, Putnam, Baird, Clyde, Abilene, Merkel, and Trent the
respondent supplies electricity to Texas & Pacific Railway Company,
which is engaged at those points in transporting passengers and
freight in interstate commerce. This power is used for the operation
of automatic electric block signals and for lighting and operation of
stations and other structures on terminal lands.
The respondent supplies electricity to Panhandle & Santa Fe Rail-
way Company at seven locations in San Angelo, at its stations from
McCamey to San Angelo, inclusive, at Sonora, Eldorado, Bronte,
Hamlin, Sylvester, McCaulley, Crowell, and other stations, at each
of which points the railway is engaged in transporting passengers
and freight in interstate commerce. This power is used for round-
house lighting and power, for passenger depots, switchyards, freight
office, warehouse, and street-crossing signals 15
At Menard, Santa Anna, Ballinger, Miles, and Valera the respond-
ent furnishes electricity to Gulf, Colorado & Santa Fe Railway
Company for its stations, for telegraph lines, and for incidental use.
At'points-where' it is served by the respondent this railway company,
is engaged in an interstate freight and passenger business. At San
Angelo the railway uses the terminal facilities of Panhandle & Saute
Fe Railway Company, which receives power from the respondent.16
At Dalhart the respondent supplies electricity to Chicago, Rock
Island & Pacific Railway Company, which is there engaged in trans-
porting passengers and freight in interstate commerce. The power
is used for lighting and operations of various structures on terminal
14 Because of relays which are Installed in the respondent 's transmission lines, the
power which is furnished to Southwestern comes exclusively from the respondent 's Quanah
plant, and none of the power generated at the San Angelo station flows into Oklahoma
At the interconnection between the lines of the respondent and Southwestern ;, there, is an
automatic mechanism which, in the event of an interruption of the flow of power from
the respondent ' s lines, would in 5 seconds establish a connection between Southwestern's
lines and the lines of Oklahoma Gas & Electric Company , an Oklahoma company, which
would provide Southwestern with sufficient electricity for its needs Southwestern, more-
over, has generating equipment of its own which can be placed in operation upon an hour s
notice and which is adequate to supply all the current it requires.
15 The San Angelo shops of Panhandle & Santa Fe Railway Company are equipped with
steam boilers which normally are kept in operation, which were formerly used to operate
the shop machinery, and which, in case of emergency, could be used for that purpose at
any time The rai1NNay company has sufficient oil lights available for lighting purposes
In the territory in which it is served by the respondent it maintains one line of dispatching
service which can be operated with wet cells on 2 hours' notice.
16 At they points where Gulf;- Colorado & Santa 'Fe Railway, Company; receives.po\tii,,,
from 'the respondent , the railway has battery equipment which can be used to supple
electrical energy for its telegraph instruments
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lands and for operation of telegraph instruments used in the dis-
patching of trains.'
The respondent supplies electricity to Fort Worth & Denver City
Railway Company at Quanall, Childress, Clarendon, and 13 other
points, at each of which the railway handles freight and passengers
moving in interstate commerce. The power is used for lighting,
water pumps, signals, and other purposes.
The respondent also supplies power at various points to Missouri,
Kansas & Texas Railway Company; Wichita Valley Railway Com-
pany; Sante Fe Railway Company; Quanah, Acme & Pacific Rail-
way Company; Abilene Southern Railway Company; and St. Louis-
San Francisco Railway Company.
3. Oil pipe lines
The respondent, in 1937 and 1938, supplied electrical energy for
the operation of oil pipe lines to Shell Pipe Line Corporation at
three points, to Humble Pipe Line Company at six points, to Mag-
nolia Pipe Line Company at two points, and to Atlantic Pipe Line
Company, Texas-New Mexico Pipe Line Company, and Texas Pipe
Line Company each at one point.1'
A trunk line of Shell Pipe Line Corporation runs from Hobbs,
New Mexico, to a tank farm at Wink, Texas, where there are two
branches, one going to Houston, Texas, and the other to Cushing,
Oklahoma. The former line runs through McCamey, Eldorado, and
Menard, at which points there are pumping stations powered by
electricity received from the respondent.111 At McCamey there is a
telephone line and a telegraph line, including a telegraph panel
board, which are activated by electricity furnished by the respond-
ent. These communication systems, which are essential to operation
of the pipe line, are used for dispatching purposes and for other
intra-company messages.21 From McCamey one branch of the line
lv Dalhart is situated in the respondent ' s District D, which is 45 miles removed fiom
the nearest point in any of the respondent 's other districts while the respondent operates
a 220 -kilowatt Diesel generating station at Texline in District D and maintains for emer-
gency purposes a 1300 -kilowatt Diesel plant at Dalhart , it normally purchases from South-
western Public Service Company, and receives through its interconnection in the south
line of Hartley County. all electricity used by it in District D communities other than
Texline
"The recoid does not disclose the nature of the operations conducted by any of these
pipe -line companies except the Shell and Humble companies
19 From May 1937 through April 1938, the respondent furnished to Shell Pipe Line
Corporation 2,897 , 000 kilowatt hours of electricity at Eldorado and 2 , 918,000 kilowatt
hours at Menard The recoid does not disclose the amount of power furnished at
McCamey
20 The Shell Company has on hand batteries which are adequate to operate the tele-
graph system in the event of a brief interruption of the power supply Sources of power,
other than the respondent , are available for operation of the telephone system, but not of
the telegraph equipment
WEST TEXAS UTILITIES COMPANY 533
runs to Healdton, Oklahoma, and another to Houston, Texas. The
station at McCamey is a "head station," while those at Menard and
Eldorado ' are "booster stations." If the power at the head station
were cut off, the Oklahoma branch line would have to be shut down
between McCamey and Healdton, Oklahoma. The average daily
volume of oil passing through McCamey at the 'date of the hearing
was 60,000 barrels.21
One branch of the pipe line of Humble Pipe Line Company
originates at Hobbs, New Mexico, and runs through a gathering
station at Wink, Texas, to Big Lake, where there is another gather-
ing station and the dine forks into two sections, one running to Ingle-
side, near Corpus Christi, the other to Baytown, near Houston. The
latter line runs through Mertzon, San Angelo, Miles, and Coleman.
At Coleman it is joined by a line from the Texas Panhandle.
From May 1937 through April 1938 the respondent furnished to
Humble Pipe Line Company 3,139,900 kilowatt hours of electricity
at Mertzon; 86,010 kilowatt hours at San Angelo; 2,795,600 kilowatt
hours at Miles ; and 2,355,600 kilowatt hours at Coleman.22 Power
supplied by the respondent to the Mertzon, Miles, and Coleman sta-
tions is used to operate electric motors which motivate the pumps;
and power supplied to the San Angelo station of the pipe line, where
the pumps are operated by Diesel motors, is used for auxiliary
machinery, for lights, and for the company's own telephone and tele-
.mraph systems which are essential to the operation of the pipe line.23
W. G. Jenkins, chief engineer of Humble Pipe Line Company at its
San Angelo pumping station, testified that, since oil from New
Mexico might be routed to Ingleside rather than to Baytown, he was
uncertain whether any of it passed, through San Angelo. He stated
however, that oil was dispatched from Hobbs hourly and that he has
at San Angelo detected telegraphic messages from the dispatcher at
Hobbs destined for Houston. From the use of the telegraph line to
convey dispatching signals from Hobbs, New Mexico, to Houston,
we infer that oil is sent through the pipe line from New Mexico to
n Part of this volume is accounted for by the temporary shifting of surplus oil from
McCamey. When that operation is completed the volume will drop to 26 , 000 or 27,000
barrels a day
The Shell Company has an interconnection with a pipe line belonging to the Texas
Company, which runs to Houston and is one of several other pipe lines which serve the
McCamey area . These pipe lines operate at less than their capacity and it would be
possible to send oil through them in the event of an interruption at Shell's McCamey
station Pecos Valley Power & Light Company has transmission lines which iun within
a mile of McCamey , and the Shell pumping station could readily in the-event-of an
emergency be connected with the lines of that company Cf footnote 7, supra
. 2' Electricity in lesser quantities was furnished to Humble Pipe Line Company at
Hawley and Merkel At Hawley the seivice is used for incidental light and power in
connection with the operation of a pumping station ( apparently on the Panhandle branch
line). At Merkel the powei is used to operate a gathering station
23 If,the power supplied by the respondent to the San Angelo pumping station were cut
ofV. that station could not operate until lightine machinery was installed
3s3033-41--\ of 22---5
534 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Houston, Texas, and that it passes en route through the points where
the pipe line receives power from the respondent.
The normal flow of the pipe line from Big Lake through the points
serviced by the respondent is between 45,000 and 50,000 barrels a day.
If the electricity were cut off at a booster station such as Mertzon
or Miles, the flow would be diminished by about 10,000 barrels.
4. Post offices
The respondent furnishes electric power to United States Post
Offices in 40 communities. This power is used in all those offices for
lighting and in some of them for operation of stamp-canceling ma-
chines, conveyors, and other auxiliary equipment.
5. Telephone companies
The respondent furnishes electricity to San Angelo Telephone Coin-
pany at San Angelo, Ozona, Sterling City, and eight other points; to
Southwestern Bell Telephone Company at Abilene and four other
points; and to eight other telephone companies at various points.
The energy received by the companies is used in transmitting and
receiving interstate and local communications.24
6. Telegraph companies
The respondent furnishes electricity to Western Union Telegraph
Company at San Angelo, McCamey, Abilene, Ballinger, Quanah, and
seven other cities ; and to Postal Telegraph Company at Abilene, San
Angelo, and Cisco.25
7. Airways
The respondent furnishes electricity which is used for Airway
Beacon No. 4, maintained by the United States Department.of Com-
merce at Shamrock, and for beacon lights at the Abilene and Merkel
airports. American Airlines operates planes which fly through Texas
on a transcontinental schedule, and one east-bound and one west-
bound plane make daily stops at Abilene. The respondent furnishes
electric power for the operation of a radio weather station located
near Abilene which is maintained by the United States Government
for the purpose of giving weather information to pilots of airplanes
in transit.
24 At San Angelo and at Abilene , as well as at certain other points , the telephone com-
panies have generating equipment which would permit them to operate for indefinite
periods without receiving any power from the respondent
Postal Telegraph Company , and possibly western Union Telegraph Company, has ade-
quate emergency generating equipment at each of the points where it receives power
from the respondent and could operate without any electricity from the respondent.
4
WEST TEXAS UTILITIES COMPANY
C. Conclusions
535
The respondent receives from outside Texas a substantial portion
of the materials used by it in its operations. It sells large quantities
of the power generated by it to a company located in Oklahoma. A
labor dispute between the respondent and its employees would seri,
ously affect the flow in interstate commerce of the materials received
by the respondent and of the power generated by it.
A large area in the State of Texas is primarily dependent upon
the respondent for the generation and almost totally dependent upon
the respondent for the transmission and distribution of electric
energy.26 Within that area the respondent supplies electric power
to railroads engaged in the interstate transportation of passengers
and commodities, to pipe lines engaged in the interstate transporta-
tion of oil, to telephone and telegraph companies engaged in the
interstate communication of messages, to post offices of the United
States which receive and transport mail from one State to another,
and to facilities used by commercial airplanes in making interstate
flights. A labor dispute between the respondent and its employees
would burden and obstruct the operations of these agencies of inter-
state transportation and communication.
There is evidence that a number of the agencies engaged in inter-
state commerce to which the respondent supplies electrical energy
have equipment which-would enable them, in an emergency, to oper-
ate without receiving power from the respondent, but the agencies
which are so equipped do not constitute all of the respondent's cus-
tomers engaged in interstate commerce. The Board, moreover, has
jurisdiction over unfair labor practices which burden interstate
commerce and, while some of the agencies which have emergency
apparatus could maintain their operations without the benefit of the
respondent's power, the transfer from one source of power to another
would in many instances entail not only delays,, dislocations, and
interruptions of commerce, but also additional expense, all of which-
would interfere with the free flow of interstate commerce.27
2e The respondent is the principal supplier of electrical energy on a commercial ba,is in
all the communities which it serves. In four communities , however , there are competing
municipal plants and two utility companies compete with the respondent in a total
of eight counties ( Upton , Reagan , Pecos , Crockett , Sherman , Moore, Hartley , and Dallam)
27 In Matter of Southern California Gas Company and Utility Workers Organizing Com-
mittee, Local No 132, 10 N . L. R B. 1123, 1132 , we said
The Company 's chief contention that a labor difficulty which completely tied up
the operations of the Company would not necessarily result in a complete cessation
of the operations of its consumers may be granted without thereby conceding that
the Board lacks jurisdiction For it is not necessary for a labor dispute to result
in a complete paralysis or cessation of activities in order to affect , burden , obstruct
or impede the free flow of interstate commeice The dislocation of the activities of
an industrial area falling short of a complete paralysis cannot be regarded as trivial,
or as an effect upon commerce so slight as not to be within the power of Congi ess
to prevent.
536 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers, affiliated with
the American Federation of Labor, is a labor organization which
admits to membership electrical workers engaged in the assembling,
construction, installation or erection, repair, or maintenance of equip-
ment required in the production of electricity and in the operation,
inspection, and supervision of equipment by which electricity is
generated, utilized, and controlled. Employees of the respondent
engaged in these types of work are eligible for membership in Local
898 of the Union.
Utilities Workers Protective Association, and the Committee, to
which it is the successor, are labor organizations. Membership in
the Association is limited to all regular and some part-time em-
ployees of the respondent, not including officials and executive officers,
in the transmission, generation, distribution, service, meter, water-
pump station, water distribution, and ice-production departments
in Districts G, H. and K.
111. THE UNFAIR LABOR PRACTICES 91
About September 10, 1937, W. L. Ingram, international vice presi-
dent of the Union, came to San Angelo, to ascertain whether the re-
spondent's employees were interested in organizing a union and left
some application blanks with Volney R. Quinlan, one of the employees
named in the coliiplaint. Ingrain returned to San Angelo about
September 21, 1937, and met with a group of employees who had ap-
plied for membership and had requested the Union to issue a local
charter. The charter, granted to Local 898, was installed at a meeting
held in San Angelo on October 5. Shortly thereafter W. H. Wills,
another employee named in the complaint, made a trip from San
Angelo to McCamey to assist in organizing employees of the respond-
ent in District H.
Following is a list identifying persons frequently referred to in the decision:
H. H Batjer, manager of District K.
P W. Campbell, safety director.
K. A Ferguson, distribution superintendent, District B.
H S Guthrie, meter foreman, District K.
G A Hollowell, production supeiintendent.
W E Huss, chief engineer, San Angelo power plant.
w L Ingiam, international vice president of the Union.
J F Longley, transmission superintendent
H E Pittman, manager of District H.
F W Schroeder, vice president and general superintendent.
Clemon Scott, shift engineer, San Angelo power plant.
Al Stein, construction superintendent
Olin Thames, assistant chief engineer, San Angelo power plant.
Dan Whitaker. meter superintendent.
Lawson Wimberly, international representati'ie of the Union.
WEST TEXAS UTILITIES COMPANY 537
In September 1937, F. W. Schroeder, the respondent's vice president
and general superintendent, heard from Dan Whitaker, general meter
superintendent, and Al Stein, construction superintendent, that the
Union was organizing the respondent's employees. Schroeder told
Stein that if the men were considering the formation of a union "there
was something wrong," and lie instructed Stein to talk to the men in
San Angelo and to find out what the trouble was. Pursuant to these
instructions, Stein consulted a number of employees at the powerhouse
in San Angelo late in September or early in October in order to discover
whether they had any complaints. _
About the middle of September, G. A. Hollowell, the respondent's
production superintendent, who had heard of the Union's organiza-
tion efforts, made a special trip to San Angelo. While Hollowell fre-
quently made trips to San Angelo in the course of his duties, he
remained there 10 days on this occasion, a longer period than he
customarily stayed. Finding that some employees favored the Union,
lie endeavored to discourage them from joining it.
Because of the "dissention and unrest" which lie believed to exist
in the San Angelo power plant, late in October Hollowell brought
seven employees to the plant from other locations in the respondent's
system in order that they might-familiarize themselves with the work
in the San Angelo station. These men remained in San Angelo for 2
or 3 weeks and, on their departure, a second group of four men was
brought in.
A. Interference, restraint, and coercion
1. Anti-union statements
Virtually from the inception of the employees' efforts to organ}ize,
officials and supervisors of the respondent made statements to em-
ployees in an attempt to discourage them from joining the Union and
participating in its activities. Hollowell expressed appreciation of the
attitude shown by R. S. Elder'29 an employee whom he thought not.to
have joined the Union, and disapproval of the attitude of C. J.
Williams, a shift engineer -10 whom he considered to be sympathetic
with the Union. In September or 'early October Hollowell, informed
Sylvester Grounds that the respondent "didn't think we were loyal
to the company by organizing the union, or he thought we were making
a mistake doing it"; subsequently he made a similar anti-union state-
ment to Grounds; and he likewise advised W. A. Camfield, another
worker, to use his "own head" and do his own "thinking" about this
"union business." Hollowell admitted that he had talked, to "most of
20 Cf. infra.
30 See infra, footnote 33.
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the employees" at the San Angelo plant about the Union, that these
conversations occurred as late as April or May 1938, and that he had
referred to union organizers as "evangelists." While he testified that
his strongest statement with reference to the Union had been that he
did not believe any benefit would come to them from it and that it
would'probably cause dissension in the plant, he failed to deny specifi-
cally the statements which other witnesses attributed to him. Since he
admitted having presented to employees arguments against the Union,
we find that he made the remarks set forth above and those referred to
in footnote 31.31
On one occasion J. F. Longley, the respondent's superintendent
of transmission , assembled the District K transmission crew and told
them that he was going to talk about the Union. Having remarked
that the company had been fair to its employees, that it had paid them
when they were sick, and that it had pro-rated their work during the
depression, he told them of a man who had been required to pay $100
for a union card in order to obtain permission to work. Commenting
that, if he were a worker, he would not want the Union to take any
money out of his earnings and that he knew the company would not
pay higher wages, he declared that he and his men would "get along"
regardless of whether they were union members, but he advised them,
if they were members, to resign and, otherwise, not to join. Subse-
quently, at a meeting in the office of H. H. Batjer, the manager of
District K, at which Batjer, Longley, P. W. Campbell, safety director
of the respondent, and K. A. Ferguson, distribution superintendent
for District K, were present, Longley told A. S. Ray, a foreman'32
that if he owned a business and if Ray, being his employee, joined
the Union, he would have to ask him to get another job. Campbell
said to Ray that the Union would do the same thing as the Ku Klux
Klan, which had created strife, caused killings, and made neighbor
turn against neighbor. While on several occasions Ferguson had
told Ray that he should determine for himself whether or not to
join the Union, subsequently-after Ray had become a member-he
inquired, ". . . I want to ask you something, do you still think
you bettered yourself by joining the Union?" When Ray answered
affirmatively, Ferguson said that Ray had had a bright future with
the Company and expressed regret at hearing that he belonged to
the Union.
" Other anti-union statements made by iiollowell are set forth in the discussion of
discrimination aa;ainst wills, Quinlan, and Elder, infra
32 Buck Dorsey, as well as Ray himself, testified that Ray is a foreman Although a list
of employees prepared by the respondent identifies Ray simply as a "gioundman," we
believe that the testimony of Dorsey and Ray is entitled to credence, because that list fails
to designate as supervisory employees not only Ray but also the shitt engineers at the
San Angelo power plant, who are admittedly foremen . Cf infra
WEST TEXAS UTILITIES COMPANY 539
W. E. Huss, chief engineer of the San Angelo power plant, told
C. J. Williams, "Mr. Wiliams, about this damn union that is coming
on, . . . I don't approve of it ... I want it stopped ... If it ain't
stopped, I am going to fire every damn man in here. ... Them or-
-ganizers will take your money, and leave you boys holding the sack;"
and lie stated that he did not approve of Williams' attitude toward
the organization and that the company would spend $500,000 fighting
the Union.33 Declaring that for 35 years he had been combatting
Ingram, who had a $50,000 home which he had "made. . . off the
Union," Huss warned an employee named Spencer, "The first crooked
step you make, out you go," but he refused to advise Spencer as to
what to do if he was already in the Union. To other employees Huss
made statements that the Union would be "a pretty cold-blooded out-
fit" and that if they listened to the union organizers they would "get
in a hell of a shape." On October 4, when he notified the men of a pay
increase, Huss declared that the "God-damned Union didn't have any-
thing to do with it." 34
Huss denied that lie had told any employees not to join the Union
or made statements that membership in it would interfere with their
employment. He testified that he advised his men that it was their
privilege to join but, he admitted, "I told them my side of it, that
I felt like it would be better to their advantage and my advantage
not to be in it." Because in notifying employees of the October 4
pay increase Huss spoke of the "God-damned Union," because-as
we point out below-he circulated a letter indicating that men em-
:u The respondent excepted to our failure to declare in our Proposed Findings that
Williams was a shift engineer , and hence a supervisory employee, on the ground that we
made such a finding with respect to Clemon Scott , who occupies an identical position.
See infra There is merit in this exception and we correct the findings accordingly
In its exceptions the respondent fuither contends that since Williams , as a supervisory
employee , is to be excluded from the unit appropriate for the purposes of collective
bargaining , we must hold that Huss ' and Hollowell ' s remarks were not made to him
as an ordinary employee This exception implies that Hollowell and Huss , by expressing
to Williams their disapproval of his attitude toward the Union , were seeking merely to
prevent a supervisoi y employee from interfering with the exercise by other employees of
the rights guaranteed them by Section 7 of the Act. Huss' statement, however, that the
organizers would "take your money and leave you boys holding the sack" precludes us
from so interpieting the evidence That Huss and Hollowell should have placed such
a restraint upon a supervisory employee would, moreover , have been entirely inconsistent
with the numerous anti-union statements made by them personally Consequently it is
unnecessary to pass upon the legality of this conduct as an effort to prevent a supervisory
employee from inteifeiing kith, restraining , and coercing ordinary employees in the exer-
cise of their rights under the Act It suffices to say that a supervisory employee is not
deprived of the protection which the Act affords him in the exercise of the rights guaran-
teed employees by Section 7 either by reason of his supervisory status or by virtue of his
exclusion from an appropriate bargaining unit. See Mattes of Pearlstone Pmintinq Com-
pany, doinq' business as Pearlstone Printing cf Stationery Company and Allied Punting
Trades Council, affiliated with the American Federation of Labor, 16 N L R B 636;
cf. Matter of West Oregon Lumber Company and Lumber and Sawmill Workers Local
Union No . 3, International Woodioorkers of Apinerica , 20 N L. It. B 1.
u The circumstances and manner of granting the pay increases are discussed infra
540 DECISIONS OF NATIONAL LA13OR RELATIONS BOARD
ployed elsewhere had been discharged for union activities,35 and
because he admitted having made statements evincing his hostility
to the Union, we find that he made the statements set forth above
and those referred to in footnote 36.36
J. T. Joyner,3' an employee, testified that in December 1937, H. S.
Guthrie, foreman of the meter gang, asked him about the "dollar
and ten cents an hour" that he was receiving and, when Joyner dis-
claimed any such earnings, said, "Well, I thought when you joined
the Union, they paid you a dollar and ten cents an hour"; tliat when
at approximately the same time he asked Guthrie about work,3E
Guthrie intimated that he should execute an affidavit to the effect
that he had withdrawn from the Union; and that when he wrote
out such a statement and presented it to Batjer, Batjer stated that it
was satisfactory, that he believed Joyner had withdrawn from the
Union, and that "a man out of the Union (could) go a long ways
with the company."
Batjer and Guthrie both testified that in the conversations they
had with Joyner the suggestion of a disavowal of union membership
had originated with Joyner and that they had told him it was im-
material whether he belonged to the Union or not. In view, how-
ever, of the fact that Batjer was present and interposed no objection
when Longley and Campbell spoke to Ray about the Union and of
the fact that Guthrie subsequently took a leading role in the activity
of the Committee and of the Association," organizations hostile to
the Union, we find that Batjer and Guthrie made the statements
attributed to them by Joyner.
Late in January 1938, Schroeder, the respondent's vice president
and general superintendent, received a communication on the letter-
head of Lower Colorado River Authority, Austin, Texas, signed by
S. W. McLain, which was directed to the respondent and four other
companies. The letter mentioned five men who had "torn up the
Buchanan Job and . .. put everything in trouble with this leader,
Mr. Ingram, I. B. E. W. organizer;" stated that they (the five men)
were proceeding to San Angelo, Abilene, and other cities to organize
workers and call a strike; and contained the following warning: "So
please be guided by the loss that these men and their families, are
taking now. Just for a handful of so-called union men as they call
themselves . . . Please watch out for these five men." Although
Schroeder neither knew, nor conducted any investigation to ascertain,
A( See infra
°Huss made other anti-union statements which are set forth in the discussion of
discrimination against Quinlan and Elder. See infra
a' Cf. infra.
sn Joyner had been temporarily laid off in November and was seeking reinstatement.
so See infra
WEST TEXAS UTILITIES COMPANY 541
who McLain was, he distributed to Whitaker, meter superintendent
of the respondent, and to M. E. Pittman, manager of District H,
photostatic copies of the letter, telling those men that it contained
information concerning the company's operations which might be
interesting, to them. ' Whitaker gave a copy of the letter to Huss,
who passed it around the San Angelo plant, saying to employees,
"Here, I want you to read this, see what them devils are getting you
into . . . Them boys will tell you one thing, and do another .. .
Look there, that is the kind of mess you are getting into, that is the
kind of fellows you are tied up with." 40
On April 1, 1938, Schroeder told W. E. Thompson, concerning
whom a charge had been filed with the Board, that he wanted to talk
with him about it, that it would be better for his future "not to go
through the discharge," that all the Board could do would be to
transfer Thompson back to his former job, and that if he were so
transferred the foreman would "fire" him at the first opportunity.4'
In October 1937 the respondent, after a lapse of several years,
resumed publication of its house magazine, "Electric Times." 42 Under
the caption, "Facts you May Want to Know," the journal stated that
"union recruiting agents regard the situation as `hot' for commission-
pulling in new dues-paying members," that they (the union organizers)
were making false and misleading statements, confusing to both em-
ployers and employees, and that "complete knowledge of the facts is
the only sound basis for intelligent action."
This introduction was followed by questions with "answers by
government officials" purporting to "give the facts about the Wagner
law." The questions, which are all answered essentially in the nega-
tive, are :
Does the Law apply to workers in all Industrial plants? ...
Does the Law require me to join and pay dues to a Labor
Organization? ...
If the Union members in my plant get enough of a following,
can they force my employer to sign an agreement with the
Union? ...
Suppose my employer did want to sign an agreement with a
Labor Organization, could they force me in and could they dis-
criminate against me if I refused? .
Does the bill destroy Company Unions? .. .
Does the Wagner Act destroy the Open Shop Merit System? ...
4° Huss admitted that he had shown the letter to employees and did not deny having
made the remarks set forth in the text
a For similar conversations between Schroeder and Quinlan and between Campbell and
wills, see intro
42 From the contents of this magazine , we infer that it is distributed to employees in
all of the respondent ' s districts.
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The answers of "government officials" are supplemented with com-
ments by the respondent that it is not engaged in interstate commerce,
that it will take any steps necessary to guard itself and its employees
against becoming engaged in interstate commerce, and that the Act
gives employees the right to organize "in opposition to outside dues-
collecting unions." This statement of facts concerning the Act is
patently incomplete and distorted; while it meticulously points out
that nothing in the Act compels employees to join outside unions, it
almost wholly fails to give an exposition of the rights guaranteed to
employees by the Act and of the unfair labor practices in which
employers are prohibited from engaging. Indeed the article provided
employees with scarcely any clue to the respects in which the re-
spondent's conduct, before and after its publication, flagrantly
contravened the Act.
It is unnecessary, however, to determine whether the mere publica-
tion of the article constituted an unfair labor practice,43 because for
the purposes of this decision we need only consider it in conjunction
with other activities of the respondent described herein. When so
viewed, the publication of this statement manifests itself as one of
the varied elements in the respondent's campaign to prevent employees
from joining the Union. Consequently we conclude that under the
circumstances of this case, the respondent, by publishing this -article,
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
We find that by the anti-union statements set forth and referred
to in this subsection, by circulating among employees copies of the
McLain letter, by suggesting to employees that they withdraw charges
against the respondent filed by them with the Board, and. by pub-
lishing a distorted and incomplete account of the rights of employees
under the Act with the intention of discouraging membership in the
Union, the respondent interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of
the Act.
2. Pay increases granted
In his canvass of employee opinion, Stein, the construction superin-
tendent, ascertained that some employees were dissatisfied With, the
wages they were receiving. On October 4, 1937, Huss distributed
pay checks to workers in the San Angelo power plant, stating that the
as Cf, however, Matter of Nebel Knitteng Company, Inc. and American Federation of
Hosiery Workers, 6 N L R B. 284, enf'd as mod , 103 F. (2d) 594 (C C. A. 4) ; Matter
of Szmplex Wire and Cable Company and Cable Workers Feder at Local Union 21020, affiliated
with the A. F of L, 6 N L R B. 251; Matter of Mansfield Mills, Inc and Textile Workers
Ofganezeng Committee, 3 N L R B. 901.
WEST, TEXAS UTILITIES COMPANY 543
checks contained a raise and that he wanted the employees to under-
stand that "the God-damned union didn't have anything to do with it."
In fact, however, the Union was the chief reason for the increase.
Shortly before organization of the Union was started, Huss stated,
in response to a request for a raise, that there was nothing he could do.
Schroeder, moreover, admitted that the final decision to grant an
increase was made after Stein had given hint a report of his trip to
San Angelo. Furthermore, the pay roll for October 4, as originally
made up, was based on the former wage scale.
As the result of Stein's survey the respondent knew that the desire
for increased compensation was one of the principal incentives in-
ducing men to join the Union. The wage increase was intended to
lessen the effectiveness of this basic appeal and thereby to diminish
employee sympathy for the Union. We find that the respondent
granted the wage increase in such a manner and at such a time that.,
under the circumstances, the action was intended to and necessarily
did discourage membership and activity in the Union and that the
respondent thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed by Section 7 of
the Act.44
3. Surveillance of union organizers, of employees, and of union
activities
Beginning in September 1937 company officials. including Longley,
superintendent of transmission, Miles Turner, local manager at San
Angelo, Whitaker, general meter superintendent, and Stein, con-
struction superintendent, stationed themselves near the entrance to the
union hall as employees assembled for meetings and frequently re-
mained there until the meetings disbanded. For several months this
happened on the occasion of every union meeting and it continued at
least until February 1938. Schroeder, the vice president and general
superintendent, admitted that some of his subordinates had informed
him that they had seen certain employees going into union meetings.
Since the respondent made no attempt to explain the presence of its
officials in the vicinity of the union hall, we conclude that they were
there to observe and to intimidate employees who attended the
meetings.
" See Matter of American Range Lines, Inc. and Marine Engineers, Beneficial Associa-
tion, 13 N. L . R. B. 139; Matter of Roberti Brothers , Inc and Furniture Workers Union,
Local 1561, 8 N L. R. B 925 , 930; Matter of Hercules -Campbell Body Co , Inc. and United
Automobile Workers of America, Local #118, 7 N. L. R . B. 431, 434; cf . National Labor
Relations Board v. American Potash and Chemical Corporation , et al , 98 F ( 2d) 488
(C. C. A. 9 ), cert. den , 306 U. S. 643, enf 'g Matter of American Potash & Chemical
Corporation and Boras 6 Potash Workers ' Union No . 20181, 3 N L . R. B 140.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On November 25, 1937, Lawson Wimberly, international representa-
tive of the Union, went to Quanah. When he registered at his hotel,
the clerk pointed out Hollowell, the respondent's production superin-
tendent, who was in the lobby, and said that he had been inquiring
about Wimberly. Following Wimberly's arrival Hollowell, however,
made-no effort-to speak.,to him. As. Wimberly drove around the city
of Quanah to the residences of various employees, he was followed by
Hollowell and Skipper, chief engineer of the, Quanah power plant,
who remained in their car outside the residences while Wimberly went
in. When Wimberly once asked Hollowell and Skipper why they were
following him, Hollowell replied that they did not intend to allow
the employees to be poisoned by union propaganda.
A day or two after Wimberly's arrival, Longley, the respondent's
transmission superintendent, who had been staying at the same hotel,
moved into the room next to Wimberly's. On three or four occasions
when Wimberly stepped into a telephone booth in the hotel lobby to
make a call Longley went into the adjacent booth. On November 26,
shortly after Wimberly had gone up to his room with another man,
he heard' the door of the neighboring room open and close. Having
become suspicious of Longley, Wimberly looked through a small crack
over the door of the bathroom of his suite into Longley's room and
discovered him standing on a chair, looking over another door between
the two rooms.
Hollowell, Longley, and Skipper made no effort to explain their con-
duct in Quanah. We find, therefore, that Longley was spying on a
union organizer; that Longley, Hollowell, and Skipper were shadow-
ing or observing and attempting to intimidate the organizer and em-
ployees of the respondent; and that the purpose of these actions was
to discourage employees from joining the Union.
Subsequent to January 1938, Guthrie, the District K meter foreman,
asked Joyner if he knew where the Union was holding its meetings,
stating that it had not met at the place named in a newspaper account.
We find that by spying upon a union organizer, by the surveillance
of and attempted intimidation of employees and of a union organizer,45
by the surveillance of union meetings, and by inquiring concerning the
place where union meetings were to take place, the respondent inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
45 The rights guaranteed in Section 7 of the Act are substantially diminished if an
employer may interfere with the tree access of employees to unions or union representa-
tives, even though those representatives aie not themselves employees . By surveillance,
spying upon , and attempted intimidation of an organizer , the respondent interfered with
the right of its employees to obtain nfoimation and assistance from a labor organiza-
tion-a preliminary but nevertheless essential feature of the exercise of the right to
"form, join , or assist labor organizations " See Matter of Harlan Fuel Company and
United Mine Workers of America , District 19, 8 N. L . R B. 25 ; Matter of Ralph A.
Freundlich, Inc, etc and Max Marcus , ct al, 2 N . L R B. 802.
WEST TEXAS UTILITIES COMPANY .545
4. Election conducted by the respondent
On April 14 or 15, 1938, the respondent held an election in the pro-
duction, line, and service departments in the San Angelo and McCamey
districts, purportedly to ascertain whether the employees wanted to
be represented by a union. At the San Angelo plant an assembly of
employees was summoned by Hollowell, the production superintend-
ent, and Huss, the chief engineer of the plant, who told the men that
the respondent wished an expression as to whether the men desired
an organization or not; that the ballots, which they passed out, were
not marked in any way ; and that the men could sign them or not as they
chose. Hollowell and Huss stood by as the men cast their ballots.
Since the respondent indicated both orally and on the ballot that
the ballots might be signed, and since most employees signed their
ballots, the vote was not secret. Employees, aware from other mani-
festations that the respondent was opposed to the Union, could not,
without fear of reprisal, vote in favor of or abstain from voting against
the Union either by a signed or unsigned ballot. We find that the
holding of this election under the circumstances and in the manner
recited was an attempt by the respondent to discourage, and had the
necessary effect of discouraging, membership in the Union, and that
the respondent thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.46
In the April 1938 issue of "Electric Times" the respondent published
an article which commenced as follows :
LABOR ORGANIZERS
MAKE NEWS IN SAN
ANGELO, MccAMEY AREAS
Even though the company claims it is not under the Wagner
Labor Act, it offered to answer charges of union organizers to
the National Labor Relations Board, particularly the allegation
that the organizers had succeeded in enrolling a majority,of W. T.
U. employes as paying members in production, line; aria service
departments in the San Angelo and McCamey areas.
The article continued that, in order to show that no question affecting
commerce existed, employees "of their own free will expressed them-
selves in secret ballots" and that "an enthusiastic expression on the
40 See Matter of Arthur L Colton and A. J. Colman, co-partners, doing business as Kiddie
Kover Manufacturing Company and Amalgamated Clothing Workers of America, 6 N. L.
R. B. 355, enf ' d National Labor Relations Board v. Arthur J Colton and Abe J. Colman,
Co-Partners doing business as Kiddie Kover Manufacturing Company, 105 F. (2d) 179
(C. C. A. 6 ) ; ef. Matter of The Heller Brothers Company of Newcomerstoien and Intei-
national Brotherhood of Blacksmiths , Drop Forgers, and Helpers , 7 N. L R. B. 646, 657.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
issue was recorded"; that, although the ballots required no signatures,
all but a few ballots were signed; that, by a vote of 41/2 to 1, employees
in certain departments expressed their opposition to unionization; and
that, in a subdivision of the production department where a union
organizer had met with the most favorable response, the ratio was 21/2
to 1 in opposition to unionization.
The circumstances and manner of holding the election were factors
which-regardless of employee sentiment-made it virtually certain
that the vote would result in rejection of union organization. The
report in "Electric Times" stated that a preponderant majority had
vote4,,4gainst ,l iion affiliation. In this article the respondent repre-
sented'as an expression of the actual sentiment of its employees toward
outside organization the result of an election in which they were not
free to vote according to their desires. The effect of this misrepre,
sentation was to minimize the Union's strength and, hence, to dis-
courage employees from joining the organization. We find that by
the manner in which the election results were published in "Electric
Times" the respondent attempted to and did discourage membership
in the Union and that the respondent thereby interfered with, re-
strained, and -coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.47
B. The transfers, lay-offs, anul discharges
-W. H. Wills started to work for the respondent in 1927. He was
employed successively as an oiler, fireman, and engineer, and, after
approximately 2 years, was placed in charge of the control room as a
switchboard operator, at which position he served continuously for
more than 8 years. When he was first employed, his salary was $90
a month, but lie received successive increases until by December 1937
it was $130 a month.'s In 1935 or 1936 Huss asked Wills whether he
would take a job as relief engineer and Wills replied that, since that
job would require him to work part time with the repair and main-
tenance gang, he could not do it because lie was not qualified for and
did not kno}v anything about that type of work.4"
On September 16 or 17, 1937, Wills agreed to join the Union, and
on October 5, 1937, he was installed as a charter member of Local 898.
In September, Stein, the construction superintendent, asked Wills
41'i'he very phraseology of the article-that the respondent had offered to "answer
charges" that the Union represented a majority of its employees-plainly irdmcated to
employees the respondent ' s hostility toward the Union.
48 01 October 4, 1937, employees at the San Angelo power plant received a $10 raise
,'i'hc record does not disclose whether wills' other increases were general or individual
rOIt is appament that during wills' service as an "engineer " he was not required to do
the type of work pei toimed by members of the repair and maintenance gang %
WEST TEXAS UTILITIES COMPANY - 547
whether he had any complaints. Wills mentioned several matters and
declared his belief that they could be satisfactorily adjusted only
through the formation of a union. Shortly after October 5, during his
regular 2-day rest period, Wills made a trip to McCamey to help or-
ganize employees in District H. He was "active vice president" of
Local 898 and since November 1937 has been in charge of the Local's
activities.J°
On September 18, 1937, Hollowell told Wills that, if the men joined
the Union and organizers came to Abilene to talk to -the Company,
the-respondent's officials would not "even talk to the sons of bitches."
Following Wills' trip to McCamey, Hollowell asked him whether he
was thinking of quitting and said, "Well, I heard you had been out
at McCamey and had pretty good luck, and I thought maybe you
were going in that kind of business." About Friday, December 3,
Hollowell told Wills that, while lie did not know what the organizers
were saying about the membership of the Union in Quanah and
Abilene, "they don't have a danm one" at either of those places, to
which Wills responded that it would not change his conduct if they
had no members in Texas.-','
On Monday, December 6, 1937, following the last conversation de-
scribed above, Huss informed Wills that lie was to be transferred to
the repair and maintenance gang. Wills protested to Huss that he
had previously told him of his attitude toward working with the
1 epair gang, that lie was afraid of that kind of work, and that he was
not quallfiad to do it, but said that lie would do the best that he could.52
Wills was replaced on the switchboard by R. H. Stanley, who was
first employed by the respondent on November 1, 1937, in the capacity
of a motor repairman at McCuney.53
- The respondent maintains that Wills was transferred for`business
reasons" having to do with the efficient and proper operation of the
San Angelo plant and not because of his union activities.'' From the
60 Quinlan , who had been elected president of the local in October, was in November
transferred from San Angelo to McCamey See tinfia
"Out reasons for finding that Hollowell made these remarks are set forth, supra
52 It does not appear that any change was made in wills' rate of pay when lie was
transferred
Stanley was subsequently active in organization of the Committee and of the Associa-
tion See infia
^r The amended complaint, dated December 12, 1938, alleged that wills was disctiniina-
torily discharged about January 13, 1938 On December 19, 1938, the amended complaint
was amended without objection to comprise the further allegation that wills was dis-
criminatorily transferred about December 5, 1937 The respondent filed no answer to
this supplemental allegation A substantially identical allegation, however, had been
added to the original complaint on July 27, 1948, during the first hearing, and on
August 6, 1938, the respondent had filed a supplemental answer alleging that wills'
transfer was due to business reasons
Since on December 19, 1938, the pasties agreed that the iecoid of the earlier beatings
aught be'"considered as part of the record in the case, we shall treat the allegations of
the supplemental answer of August 6 concerning wills as if they had been expressly
renewed after the amended complaint was amended on December 19, 1938
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence it appears that the respondent does frequently shift employees
from one position to another. There is no proof, however, that an
additional man was needed on the maintenance and repair gang. Nor,
assuming that a man was needed for maintenance and repair work, is
there any evidence that other men than Wills were unavailable. The
testimony, moreover, far from showing that Wills was better qualified
for such work than other employees, demonstrates that he had never
done work of that type and that he considered himself unfitted for it.
Wills was replaced by Stanley, who had been chief engineer of
another power company and was undoubtedly qualified to perform
many jobs at the San Angelo station. The respondent does not attempt
to show, however, why it placed Stanley at the switchboard rather than
at some other post; nor why, in order to create a vacancy for Stanley at
the switchboard, it displaced Wills rather than an operator on one
of the other shifts.
The specific justification advanced for Wills' transfer was that his
work had been deficient in a number of respects. It must be borne
in mind, however, that while witnesses testified to approximately four
offenses, only one of the four was ever called to Wills' attention, and he
never was actually reprimanded for any of them. Not until January
20, 1938, when he was discharged, was Wills informed that his transfer
had any relation to the manner in which he had been performing his
duties. At that time Huss, the chief engineer, told Wills that lie' had
been transferred for failure to cooperate with his fellow employees,
the same explanation as he gave in his testimony. We shall discuss
in detail the charges made against Wills at the hearing.
In the first place, Otto Pirtle, a fireman, testified that on several
occasions when he had telephoned to Wills, Wills had failed to answer.
Although Wills denied that he had ever refused to answer his tele-
phone, Pirtle's account receives corroboration from Scott's testimony
that Pirtle had complained to him about Wills and that Pirtle and
he had together tested the telephone to ascertain that it was ringing
properly. Because of this corroboration we believe Pirtle'stestimony,
rather than Wills' denial, worthy of credit. Although it nowhere
directly appears that Wills was-or that he should have been-suffi-
ciently near the telephone to hear it ring, we infer that it was his
duty as switchboard operator to remain near the telephone.
Secondly, Pirtle charged that on a number of occasions after he
had given flow readings to Wills over the telephone, Wills hung up
the receiver before Pirtle could give him the "boiler on and off." Wills
stated that he had never hung up the telephone before the-fireman,' had
finished giving him information. On cross-examination Wills testi-
fied that Pirtle had refused to join the Union after having pledged
WEST. TEXAS UTILITIES COMPANY 549-
himselflf to do so, and he admitted that this had diminished his con-
fidence in Pirtle "so far as (his) word was concerned ." Pirtle testified
that in 1930 he had had an altercation with Wills and that when he,
Pirtle, after an absence of several years, returned to the plant in the
fall of 1937, Wills would not speak to him or return his greeting.
Wills' failure to deny that he would not greet Pirtle, together with
the difference in their attitudes toward the Union, lends credibility
to Pirtle's testimony . We find, accordingly , that on several occasions
Wills terminated telephone conversations with Pirtle before Pirtle
had given him all the information he desired to.
Pirtle claimed that Wills would not call him to give him advance
information of load pick -ups.65 He said, moreover , ". . . when I
would call him, why, what he would tell me, why, he wouldn't pick it
up like he said, he would-was going to pick it up, so I just figured
he was telling me wrong, to try to put me off ; I didn 't know. " In tes-
tifying before Pirtle took the stand , Wills answered affirmatively
when he was asked on cross-examination whether it was necessary for
him "to keep in touch with ( the) engineer , and with (the) fireman,
.. to advise them of the load that was coming on according to the
dispatcher." Pirtle said that other switchboard operators gave him
such information . Following Pirtle's testimony , however, Wills
stated , again upon cross-examination, that "in ordinary operation"
the fireman would know when a big load was to be ; picked up or
dropped and that it was not the switchboard operator 's duty to tell
him. Supporting, Wills' testimony that it was not his duty to com-
municate ordinary variations to the fireman is the fact that Scott, the
shift engineer , according to his own assertion , had memorized the
load schedule , from which it follows that Pirtle, the fireman, might
have been equally familiar with the ordinary schedule. This would
explain why Wills did not communicate ordinary load changes to the
fireman. There remains, however, Pirtle's undenied testimony that,
after Wills had upon request given him advance load information,
Wills picked up a different load increase from that which he had-said
he would.56 It is, of course , possible that between the time that Wills
gave Pirtle the advance information and the time that Wills picked
up the load, the, dispatcher might have signalled a different pick-tip
to Wills. In that event , however, Wills should have communicated
the change to Pirtle . On the entire record we conclude that Wills was
at fault in giving the fireman misleading information or in failing,
cc The switchboard operator works in the control room of the plant, records meter read-
ings, and controls the load on the turbine r iom the dispatchers who are located at
Abilene, ' Qttanah ,rand McCamey, he receives communications at frequent , intervals ,intlicatine
anticipated changes in load
ss when he switchboard operator actually changes the load he conunnuuater the
increase or decrease to the engineer and the fireman by a dial signal system
288033-41-vol 22-36
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
after having once given the fireman information, to notify him of sub-
sequent changes indicated by the dispatcher.,
Finally,. Scott complained that several times Wills had failed
promptly to pick up the load according to schedule. Scott said that
on one occasion when the 6: 15 pick-tip was 10 to 12 minutes overdue,
he had walked into the control room and asked Wills whether the
dispatcher had changed the load schedule. Wills said, "No sir," but
proceeded to pick up and indicate on the dial system a load increase,
although during the time that Scott was in that room no message was
received from the dispatcher. Scott stated that on two occasions
within the succeeding 3 or 4 days he noticed a similar delay but that
before Scott "would get to the door" Wills had picked up a - load
increase. Since Wills made no effort to explain or deny the conduct
attributed to him by Scott, we find that on several occasions he failed
to pick up the load according to schedule.
This review of the evidence indicates that Wills was in several re-
spects remiss in the performance of his duties. It remains for us
to determine, however, whether his misconduct was the cause of his
transfer or whether in assigning Wills to another job the respondent
was motivated by consideration of Wills' union membership and
activity..'' Upon the entire record we are satisfied that the shortconf-
ings of Wills' work were not the actual reason for his transfer. In
making this determination we bear in mind'the history of the respond-
cut's continual efforts to discourage union activity, for this is a factor
inseparable from the other circumstances which throw light upon the
cause of the transfer.
Wills was vice president of the Union and-following the transfer
of the president, Quinlan-assumed the leadership of the organization.
On three widely separated occasions Hollowell made remarks to Wills
which unmistakably betrayed the respondent's disapproval of his union
activities. The last of these conversations occurred but 3 days before
Wills' transfer. In this regard it is significant that Huss did not effect
the transfer of Wills without first consulting Hollowell. The record
does'not disclose the date or dates when that consultation took place.
On December 3, howeiver, when Hollowell spoke to Wills he was in
San Angelo, presumably on one of his periodic visits to supervise the
management of the power station. These considerations lead Lis to
believe that the relation between the conversation of December 3' and
the transfer of December 6 was causal, as well as temporal, in nature.
51 See Matter of Kelly-Sprinpheld Tire Company and Untied Rubber Workers of Antler ice,
Local No 26, et al , 6 N L R B 325. 342 , where we said : "While proof of the presence
of proper causes at the time of discharge may have relevancy and circumstantial bearing
in explaining what otherwise night appear as a discriminatory discharge, such proof is
not conclusive The issue is whether such causes in fact induced the discharge or whether
they are but a justification of it in retrospect "
WEST TEXAS UTILITIES COMPANY 551
A further fact, to winch we have already adverted, patently reveals
that Wills' misconduct was not the cause of his transfer. Except for
Scott's single inquiry concerning the change in the load schedule,
no one-whether supervisor or fellow employee-ever expressed a word
of complaint to Wills. That Wills was never criticized for his faulty
performance, even though it had been called to the attention of Scott,
Thames, Huss , and Hollowell, is persuasive evidence that the respond-
ent attached little importance to it.58 We find that Wills was trans-
ferred from the switchboard to the-maintenance and repair gang be-
cause of his union membership and activity and that the respondent
thereby discriminated in regard to his condition of employment to
discourage membership in the Union, and restrained, coerced, and
interfered with its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
Wills worked with the repair gang on Monday and Tuesday, Decem-
ber 6 and 7. He testified that on Tuesday he sustained an injury to
his side and back in attempting to loosen a frozen steam pipe. Wednes-
day and Thursday were Wills' days off. On Wednesday he consulted
a physician and on Thursday he gave Thames, the assistant chief engi-
neer, for delivery to Huss, a note from his doctor stating that he was
injured. For a considerable period thereafter Wills was unable to
.work and was confined to his bed most of the time.
On January 13, 1938, while Wills was still in bad health, Campbell
'and Hollowell called at Wills' home and talked with him about his
claimed injury and the compensation he desired for it. Campbell
told Wills that he had "got (himself) into a mess ." He said to Wills
that his attitude was wrong and, shaking his finger in Wills' face,
declared, "You have filed charges against the Company before
the National Labor Relations Board. . . . You are fighting the
Company."
58 Huss explained that he had not cautioned wills about his conduct because, since wills
had been working on the switchboard fen 9 years , he did not think it necessary and
because, moreover , wills "was not the type of man " lie could talk with We are convinced,
however, that had wills ' offenses substantially intertered with operation of the plant,
Huss would hate repumanded him Consequently we infer that wills' misconduct was not
of a serious nature
69 Wills was named in the charge filed by the Brotherhood with the Regional Director on
December 14, 1937
The respondent appears to contend that Campbell ' s remarks concerning the situation
In which wills had placed himself and concerning his attitude pertained solely to wills'
conduct in seeking compensation for his claimed injury and not to the inclusion of his
name in the charge filed with the Board That the remarks related at least in part to
the charge filed with the Board is clearly indicated by the portions of wills ' testimony
which we have summarized'or quoted . That testimony is uncontroverted , for Hollowell
did not attempt to refute it in his testimony and the respondent did not present Campbell
as a witness In cross-examining wills the respondent produced testimony concerning this
'conversation given by Wills in an action brought by him to recover compensation for the
injury he claimed to have suffered on December 7 The respondent apparently believes that
wills' testimony at the compensation tiial supports its contention that Campbell's
remarks related solely to the matter of the injuiy We are unable to take that view,
552- DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On January 17, 1938, Wills' attorney filed with the Texas Industrial
Accident Board a claim for compensation for total and permanent
disability. Two days later Huss asked Wills to come to the power-
house.' When in response Wills went there the following day, Huss
told hiln that the Company had not been getting any cooperation out
of him; that this had been the cause of his transfer to the maintenance
and repair gang; that, according to the statement of the respond-
ent's and of Wills' physicians, Wills' condition was not the result of
an injury; and that "under those conditions" the Company did not
any longer need his services.60 Thereupon Huss gave Wills his pay
check, which comprised his usual salary up to January 16.61
We have already found that Wills was an extremely active union
member. In September he was one of the first employees to indicate
his willingness to join the Union. About that time Hollowell told
him that the respondent would never deal with the Union. In Octo-
ber he took a trip to McCamey to aid in organizing employees. With
reference to this trip Hollowell later asked Wills whether he was
leaving the Company's employ in order to go into the business of
organizing unions. Following the transfer to McCamey of Quinlan'62
who had been elected president of the Local, the active leadership
of the Union devolved upon Wills, its vice president. Early in De-
cember Hollowell told Wills ,that, regardless of whatever claims the
UniQu's, organizers might, be„mat ig, it„had nct,:lnelnber in Quanah
or Abilene. Wills indicated that this information would not "change
,,him) any." When these conversations failed to discourage Wills
from continuing his union activity, the respondent attempted to attain
that end by transferring Wills to a job which the respondent's officials
i new he did not want to fill.
In view of Wills' extraordinary prominence in the Union and of the
repeated endeavors made by the respondent to cause him to abandon
his affiliatipn with that organization, we are strongly disposed to
believe that he was discharged because of his union activity. The
fact that on January 13, in speaking to Wills, Campbell mentioned
the charge against the respondent which named Wills and told him
however, for even in his testimony at the compensation trial, Wills declared that in then,
conversation of January 13, Campbell had accused him of filing a charge with the Board.
The fact that subsequently Schroeder, one of the respondent 's chief executives, sug-
ested to Quinlan and Thompson that they withdraw charges filed by them with the
Boal'd (see snfra), supports the conclusion that Campbell was expressing to Wills the
respondent' s displeasure at Wills' acquiescence or participation In the filing of charges,
and we so find.
"Huss testified that on about January 13 he had decided to "drop" Wills because he
had not reported back to work and because the respondent's physician (who died before
she hearing took place), to whom Huss spoke at that time, reported that his examination
r f Wills did not, disclose any signs of an accident but indicated rather that Wills' ill health
eras due to a tubercular condition.
UI The respondent customarily gives 2 weeks' salary, to persons leaving its employ.
"Tins transfer, which is alleged in the complaint as an instance of discrimination, is
discussed infra.
WEST TEXAS UTILITIES COMPANY 553
that he had the "wrong attitude" and that he was "fighting the com-
pany" corroborates and confirms this view 83 We are further impelled
to this conclusion by consideration of the anti-union animus which
characterized the respondent's behavior from the first signs of the
Union's organizing efforts.
In its, answer, to the,,amended' complaint the respondent. says :
. . . the reason W. H. Wills ceased to work for it was because
he claimed to have suffered an accident and' to be totally inca-
pacitated for work and respondent further shows that at the time
it notified the said W. H. Wills that his services would be needed
no further he then was claiming to be totally and permanently
incapacitated for the performance of any labor . . 64
We do not find the contention persuasive. Shortly before Wills sus-
tained the injury which occasioned his claim, the respondent had trans-
ferred him to a new and less desirable position because of his union
activities. From the episode of January 13, when Campbell and
Hollowell called on Wills, we infer that the respondent's antipathy to
Wills' union affiliation had not abated. It was not necessary to dis-
miss Wills from the respondent's employ in order to place some one
at work in his stead; the respondent, in fact, had already filled his
post at the switchboard and it does not appear that there was any
lack of men to substitute for him on the maintenance and repair
gang-6° While Wills' disability afforded an apparent excuse for his
discharge, we are convinced that he would not have been discharged
but for his union membership and activity. We conclude that the
respondent discharged Wills because of his union membership and
activity, that it thereby discriminated in regard to his tenure of em-
ployment to discourage membership and activity in the Union, and
that, it thereby interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.
Volney, R. Qurinalan, was employed by the respondent as mainte-
nance electrician at the San Angelo power plant from April' 1928 to
November 1937, and as appliance serviceman at McCamey from then
until. July .1938. Having started,.to work at $125..-a month, he later
received an individual raise of $5. Subsequently wage cuts during
the depression reduced Quinlan's earnings to $120, but at the time
03 We find that , in mentioning the charge filed with the Board , Campbell intended to
discourage Wills from pressing it and to induce him to withdraw it, and that by seeking
to induce Wills to forego recourse to the means which the law affords employees for the
protection'of their rights under the Act the respondent interfered with , restrained, and
coerced Wills in the exercise of those rights.
64 It should be noted , however, that Wills' compensation claim was not filed until
January 17, whereas-according to Huss-the decision to discharge Wills was made
about January 13. See supra.
65 Cf our discussion of the maintenance and repair gang, is fra.
554 DECISIONS OF NATIONAL LABOR - RELATIONS BOARD
that his employment was terminated his compensation had risen to
$140 a month.66
When Ingram, international vice president of the Union, first came
to San Angelo he gave Quinlan some membership application blanks
and Quinlan was one of the first and most active employees in the
organization of the Union. Since October 5, 1937, Quinlan has been
president of Local 898 and until November 22, 1937, when he was
transferred to MeCamey, he took part in all union meetings in San
Angelo.
On many occasions in September Hollowell spoke to Quinlan about
the Union, telling him, among other things, that the organizers were
nothing more than "dues-collecting gentlemen that were going around
and taking ... money for nothing" and that the respondent did not
consider itself within the jurisdiction of the Board. On September
14 Huss asked Quinlan what he knew about the Union that was being
organized and what he had to do with it; he said, "I want to tell you
right now that we don't-I don't want any God damn union, and I
am not going to have any God damn union," and warned Quinlan,
moreover, that if he had anything to do with the Union he would
discharge him. About September 20 Huss told Elder, another em-
ployee, that he believed Quinlan was , the ringleader in the union
campaign` and intimated that Quinlan would be discharged if he
discovered that his belief was well founded.
On November 22, 1937, Hollowell informed Quinlan that he would
be transferred to McCamey. When Quinlan asked him the reason
for the transfer, Hollowell said that Quinlan had not been "getting
along." 87 Quinlan challenged Hollowell to say that the Union was
the cause of the transfer, to which Hollowell responded by saying,
"Well, you wouldn't want me to commit myself, would you?" The
transfer was undesirable from Quinlan's point of view, because his
family, consisting of his wife and two children, resides in San Angelo,
because McCamey is a smaller city than San Angelo, and because
its housing facilities are poor.
Quinlan's position was filled by a non-union man and at McCamey
Quinlan replaced Stanley, who had been detailed to San Angelo.-
Hollowell'h-testifi6d that because ofrthe dissension and unrest at San
Angelo he "borrowed" Stanley from the McCamey district in order
"to have somebody available" ; in answer to a question as to what
affirmative steps he had taken to eliminate the dissension, he said,
66 While there was a general raise of $10 at the San Angelo power station in October
1937 (see supra), it does not appear whether the wage cuts and the other increases were
general or individual.
67 See infra.
69 See supra.
WEST TEXAS UTILITIES COMPANY 555
"The only steps I took were to remove or transfer Mr. Quinlan and
Mr. Grounds." 69 Upon Wills' being assigned to the maintenance
and repair gang he was replaced as switchboard operator by Stan-
ley.70 Thus the respondent, by three transfers, sent one active union
man to a remote location, assigned another to undesirable work, and
brought an outstanding non-union man into the San Angelo plant,
which was the center of the Union's activity.
In its answer to the amended complaint the respondent alleges
that, as an. employee, Quinlan was subject to transfer,at any time.
The evidence reveals that workers were not infrequently transferred
from one point to another in the company's system. There was,
moreover, at McCamey a vacancy which Quinlan was qualified to fill.
The facts we have previously related, however, point strongly to the
conclusion that the reason why Quinlan was selected to fill the va-
cancy was that he had been conspicuously active in the Union. The
testimony of the respondent's witnesses does not persuade us to the
contrary.
Hollowell testified that, in the fall of 1937, Quinlan had on several
occasions told him that he could not "get along with" or "believe"
Huss and that he had therefore thought it well to place Quinlan
where he could work under more pleasant conditions. There is no
evidence, however, that Quinlan's performance of his duties was
affected in any way by the antipathy for Huss which he is said to
have voiced to Hollowell. Indeed, until Hollowell told him of his
conversation with Quinlan, Huss was unaware of Quinlan's asserted
feeling toward him. Although in September a similar animosity
towards Huss had been expressed by Wills to Stein, Wills was not
transferred to a position out of Huss' jurisdiction. The record does
not disclose that Quinlan asked to be transferred to McCamey and
we infer that he did not.71 We are of the opinion, on the entire
record, that Quinlan's asserted declaration to Hollowell that he could
not get along with Huss was not the cause of his transfer to
McCamey.
In October 1937, prior to Quinlan's transfer, Pittman, manager
of District H, told Schroeder, the vice president and general super-
intendent, that he :needed a motor repairman. at McCamey. -Stariley-
was hired and filled the job for a short period. As we have seen,
however, Hollowell soon brought Stanley to San Angelo so that he
09 Grounds , who was financial secretary of the local union , was named in the original
charge filed in this case but that charge was dismissed as to him on April 9 , 1938, by an
order of the Regional Director.
-0 Subsequently Stanley took a leading part in organization of the Committee and the
Association See infra
71 Huss testified that at the time that lie learned of Quinlan's reported animosity, and
sclely because of it, lie requested Hollowell to transfer Quinlan to another post
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
might familiarize himself with the work.72 As a consequence of
Stanley's transfer another man was needed for the post of motor
repairman at McCamey and Quinlan was given that post. In the
previous paragraph we have discussed the asserted lack of harmony
between Huss and Quinlan. No reason for Quinlan's transfer other
than' this claimed friction was assigned or shown; the respondent-did
not attempt to prove that Quinlan was better qualified than other
men for the job at McCamey, nor that his work at the San Angelo
plant was such that he could more easily be spared than other em-
ployees. Upon the entire record we conclude that Quinlan was
selected to fill the McCamey vacancy because he was the leader of
the Union.73
We find that by the transfer of Quinlan from the San Angelo plant
to McCamey, the respondent discriminated in regard to a condition
of his employment to discourage membership in the Union, and that
by this conduct the respondent interfered with, restrained, and co-
erced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
On. December 16, 1937, a charge was filed with the Board' alleging
the discriminatory transfer of Quinlan.74 In February or March
1938, Schroeder called Quinlan into the office of Pittman, manager
of District H, who was present, and asked him what he intended to
do about the charges which he had filed with the Board. After
Quinlan said that he would allow them to follow the regular course,
Schroeder asked Quinlan whether he knew what Duck Walker had
done. Quinlan answered that he knew that Walker had written to
the Board to request that he be permitted to withdraw the charge
which had been filed in his behalf; Schroeder told Quinlan "that the
Board . . . could force him to send (Quinlan) back to Angelo, but
that (he) would never get along there"; and Quinlan responded
that under these circumstances he did not care to go back to San
Angelo until "changes had been made that would justify (his) going
back."
On July 15, 1938, Quinlan asked Pittman whether he could go on
a vacation, and, -after some discussion, Pittman said that, Quinlan
could take 7 days and traveling time. Pittman testified that he had
instructed Quinlan to make arrangements with his foreman, W. M.
,2 Cf. supra
12 The Union was seeking to organize employees at McCamey as well as at San Angelo.
It had its greatest concentration of strength at the San Angelo power station. Union
meetings seem to have been held in San Angelo rather than in McCamey . The plant at
San Anglo, moreover , is the principal source of energy for the respondent 's system. By
transferring Quinlan to McCamey the respondent not only removed an active union man-
ihe president of the Local-from the place where organization was most advanced, but
also gave employees an illustration of the treatment that they might expect if they joined
or became active in the Union.
74 See supra.
WEST TEXAS UTILITIES COMPANY 557
Edwards, concerning the date of his leave.' Quinlan, on the other
hand, testified that he had received no such instructions and that
he had informed Pittman of his intention to begin his vacation the
following week end.
Without notifying Edwards that he was going to commence his
vacation , Quinlan left McCamey after work on Saturday , July 16,
and went to San Angelo , taking with him his personal effects and
some tools which he ordinarily kept in his "bunk house" at Mc-
Camey. Sunday was Quinlan 's day off but, when on Monday he-did
not appear for work, Pittman and Edwards ascertained that he had
taken with lint the articles which he customarily kept at McCamey.
Edwards temporarily substituted for Quinlan first a clerk and sub-
sequently W. A. Hale, a lineman ,"' while Pittman asked Dan
Whitaker , the meter superintendent , to send a permanent replace-
ment from Abilene. Hardin, the substitute , arrived about Friday.
On Saturday , July 23, Quinlan , having heard rumors , that he had
been discharged , returned to McCamey and asked Pittman "what it
was all about." Pittman told Quinlan that it had been necessary
to send to Abilene to get a replacement for him . Quinlan there-
upon asked whether he was discharged . According to Quinlan's
testimony , Pittman said that he was ; but Pittman testified that he
told Quinlan that lie "didn 't fire him, that he had quit."
In its supplemental answer 77 the respondent makes the following
assertions with reference to Quinlan 's discharge :
Respondent denies each and every allegation to the effect that
it did discharge Volney Quinlan on or about July 23, 1938. Re-
spondent says that if the employment of Quinlan with the
Respondent ceased on or about that date, the same was the result
75 While Pittman testified that on previous occasions Quinlan had failed to consult
Edwards when he took leave of a day or two, his testimony does not clearly indicate that
there was more than one such incident. Quinlan admitted that he had once gone to San
Angelo without making ariangements with Edwards, but it appears that upon his return
he explained to Edwards' satisfaction why he had not consulted him before leaving
'Although Edwards, the line foreman, testified that Quinlan's departure left him short-
handed because two men weie on vacation and one was attending a funeral, W. A. Hale,
the lineman who temporarily replaced Quinlan, testified that while he was working at
Quinlan's job he was not busy. Hale, moreover, was permitted to take a vacation which
commenced on Thursday afternoon, July 21
' The amended complaint, dated December 12, 1938, alleged that Quinlan was dis-
criminatorily transferred about November 28, 1937. On December 19, 1938, the amended
complaint was amended without objection to include the further allegation that Quinlan
was discriminatorily discharged about July 23, 1938. The respondent filed no answer to
this supplemental allegation A substantially identical allegation, however, bad been
added to the original complaint on July 25, 1938, during the first hearing and on August
6, 1938, the respondent had filed a supplemental answer containing the assertions quoted in
the text.
For the reason set forth in note 54, supra, we shall treat the allegations of the supple-
mental answer of August 6, concerning Quinlan as if they had been expressly renewed
after the amended complaint was amended on December 19, 1938.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the voluntary act of the said Quinlan and it shows in particu-
lar that it did not cause such employment to cease because of any
activity of the said Quinlan in connection with any labor union
or in connection with the organization of any labor union.
While thus, in effect, the respondent alleges that Quinlan quit, and
while Pittman claims to have told Quinlan on July 23' that he had
quit, we believe that the termination of Quinlan's employment can-
not be so explained. Quinlan had been employed by the respondent
for 10 years and, in so far as the record discloses, had never spoken
of leaving the respondent's employ. Pittman, moreover, had given
Quinlan permission to take a vacation and therefore had reason to
suspect the actual cause of Quinlan's absence. Under the circum-
stances, it would have been so unreasonable to have reached the con-
clusion that Quinlan had quit that we are satisfied that neither
Pittman nor Edwards drew that inference. We conclude that Quin-
lan was discharged.
Quinlan testified that on July 23, when questioned about his failure
to consult Edwards, he told Pittman that he had the latter's per-
mission to start his vacation on Monday, July 18.78 He expressed
the belief, moreover, that his disagreement with Pittman as to
whether he should have spoken to Edwards was due to an "honest
misunderstanding" 79 which had arisen from their conversation of
July 15. Pittman and R. E. Ruble, chief clerk of District H, testi-
fied, however, that on July 23 Quinlan said that he had not talked
to Edwards because he knew that the "son of a bitch" would not
give him permission to go on his leave. Since Quinlan failed to
rebut this testimony of Pittman and Ruble, we find that he made the
remark; and from this and other facts we conclude that he should
have spoken to Edwards before going on his vacation. The evidence
does not demonstrate, however, that his failure to do so was the
cause of the termination of his employment.
Despite the fact that Quinlan had been employed by the respondent
for 10 years, the respondent upon his absence from work made haste
to secure a permanent replacement for him-although, since Hale was
not busy during the period that he temporarily replaced Quinlan,
it appears that there was little work for such a person. On July 23
Quinlan asked Pittman whether he could go back to work on the
following Monday. Pittman replied that he "had a Ivan in his place,
and . . . didn't want to make any more changes." Pittman denied
that in refusing to continue Quinlan's employment he had given any
consideration to his union activities. We are of the opinion, how-!
73 July 18 was the first working day that Quinlan was absent.
" In its exceptions the respondent urged that "honest misunderstanding" referred to
the entire discharge, but we do not so construe the testimony.
WEST TEXAS UTILITIES COMPANY 559
ever, that although Quinlan was remiss in failing to make arrange-
ments with Edwards for his vacation, a less severe penalty than
discharge would have been meted out to him had he not been a mem-
ber of and active in the Union.""
We cannot lose sight of the fact that the respondent had repeatedly
ende'avvoied to cause Quinlan to abandon his union activities. In the
fall of 1937 Hollowell and Huss had expressed to him disapproval
of the Union and Huss had made it known that Quinlan would be
discharged if it appeared that he was the "ringleader" of the organ-
izing campaign. When these tactics were unsuccessful the respondent
attempted to render Quinlan's organizing efforts ineffective by trans-
ferring him from San Angelo to McCamey. Subsequently, after the
Union had filed a charge with the Board alleging that this transfer
was discriminatory, the respondent had tried to make Quinlan with-
draw the charge. Bearing in mind the numerous ways in which,
ever since September 1937, the respondent had expressed its bitter
hostility towards the Union, we conclude that Quinlan was dis-
charged because of his membership and activity in that organization
on an occasion when his failure to make proper arrangements for
his vacation afforded an apparent justification for it.
Upon the entire record we find that by discharging Quinlan the
respondent discriminated in regard to his tenure of employment in
order to discourage membership and activity in the Union and thereby
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
G. L. Yarbrough worked for the respondent as a ground man on a
line crew from October 1929 until the latter part of 1932, when lie
was laid off because of lack of work; he again worked for the
respondent, serving as an operator in the waterworks, for several
months in 1933; and from 1935 until November 1937 he served as a
ground man on the distribution crew. Yarbrough joined the Union
on October 5, 1937, and attended meetings regularly.
In November 1937, Yarbrough was transferred to the "cut-off
list" 81 by Ferguson, the District K distribution superintendent, who
told him that Guy Rutherford, district chief clerk at San Angelo,
wanted to borrow him for a time. He remained at that work until
about February 11, 1938, when Ferguson laid hun off, telling him
that work was slack. Yarbrough inquired whether he was being
laid off because of the Union and Ferguson replied, "Let's don't talk
about the union" ; and when Ferguson pointed out that two new
80 Although Quinlan 's name was not removed from the pay roll until July 23, we find
that he had in effect been discharged earlier , for Hardin had arrived about July 22 to
replace him permanently.
° bi Men working on the "cut -off 'list" attempt to collect delinquent accounts and, where
unsuccessful, disconnect the customers ' service -
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ground men were being retained, Ferguson said he had a right to
select the men who were to work for him. Neither of those men was
a member of the Union. Yarbrough's work was satisfactory and he
had received no complaints about it.
The respondent contends that Yarbrough was hired as an extra
man and was laid off because there was insufficient work to warrant
keeping him. Batjer stated that Yarbrough would have been laid
off in November but for the fact that another employee, who was to
have been assigned to the "cut-off list," had been disabled by an
infected hand and that Yarbrough was willing to use his own car
for the work. When this employee was again able to work, Yar-
brough was replaced by him.
At about this time the respondent had reason to suspect that one
of its employees had given some information to an attorney who
was prosecuting a claim against it for the wrongful death of a man
who had been electrocuted on its power lines. On February 18 or
19 the respondent learned that Yarbrough had recently asked Ray,
an employee, what attorney represented the plaintiff in the electrocu-
tion matter. A day or so later Yarbrough admitted to Ferguson
that he had conferred with the attorney because he thought "the
company had done him wrong, and he wanted to get even," but said
that he was `-`sorry" he had done s0.112 Ferguson testified that prior
to February 18 or 19 no opportunity to reengage Yarbrough had
arisen. Batjei stated that, because of the disloyalty manifested by
Yarbrough in offering information to the attorney, the respondent
was not disposed to rehire him, although it retained his name on a
list of persons eligible for reemployment.
Yarbrough's union activity, in so far as the record discloses, was
not such as to render him especially conspicuous. His employment
had been irregular and, while two men with less seniority were
retained on the ground crew at the time that Yarbrough was laid off,
the respondent did not purport to observe a seniority system. We
deem it credible that it was because of Yarbrough's offer of informa-
tion to a party adverse in interest to the respondent that the re-
spondent did not reinstate him.83 We find that Yarbrough's union
-membersliip and activities were not the cause of his lay-off- or of
the respondent's failure- to reinstate him.
R. S. Elder was employed by the respondent from February 9,
1928 to April 19, 1938. After working several weeks as an oiler,
he was assigned to maintenance work, in which capacity he remained
until his discharge. Initially he received 40 cents an hour, but
"' At the hearing Yarbrough admitted that he had hoped to receive "a little money" for
the information which he had offered to communicate to the attorney.
13 In so far as the record discloses , Coward--who is discussed infra-was the only man
hired after Yarbrough 's lay-off to do work which Yarbrough was qualified to perform.
WEST TEXAS UTILITIES COMPANY 561
before the end of 1928 he was placed on a monthly salary of $115
and in 1938 he was earning $150.84 Elder joined the Union on
October 5 , 1937, and was a member of its executive board.
On September 20, 1937, Huss asked Elder whether he had heard
the talk about a union and said, "They sure will be in dutch with the
company , there will be plenty of trouble, and if they get it there will
be a lot of faces missing around here ." 85 On September 20 Hollo-
well said to Elder, "Roland, I want you to know I appreciate the
attitude you have taken in this trouble we are having ... I under-
stand you are not for it , if I have been rightly informed"; and,
when Elder replied that he had promised to join when he was shown
that it majority of the plant employees favored the Union , Hollo-
well replied , "Well, you don't have to join." On October 4 Huss,
in handing Elder his check , said that it included it $10 raise, that
he wanted him to understand that the Union "did not have a damn
thing to do with it," that he did not appreciate the way Elder had
been talking around the plant, and that he thought that Elder was
"undermining " him. When Elder expressed the hope that he would
he successful in organizing the Union and asked Huss how that
would injure him, Huss responded that he had been working at the
plant for a long time and that if there were a union he would have
to do some things that the men would not like.
The respondent permitted its employees to take for personal use
waste gasoline which had served to clean machinery but did not per-
mit them to take fl esh gasoline for such use. In January 1938, ac-
cording to their testimony, Stanley se and R. E. Long,"' employees
hostile to the Union , observed Elder taking some gasoline which one
of them declared to be clean and unused . "" Long made a written re-
port of this to Huss. Moreover , Stanley,. Chief Engineer Huss, As-
sistant Chief Engineer Thames, and Morgan Jett, another employee,
testified that they had observed similar occurrences from April 4 to
April 11.89
84 Employees at the San Angelo power station received an increase of $10 on October 4,
1937, but the record does not reveal whether the other increases were individual or
general.
I-, See also Huss' remark to Elder about Quinlan, supra.
88 See supra.
81 Long was subsequently active in the formation of the Committee . See snfra
84Although Long claimed that he had never before seen a fellow employee taking
gasoline for personal use, he said that this was the first time in his 17 years of emplo}went
with the respondent that he had made an "affidavit " about a fellow employee
^ Stanley asserted that he had seen Elder take gasoline on Apnl 4 , 6, 8, and 10 , Huss
and Jett that they had seen Elder do so on April 10 and 11 , and Thanes that he had
witnessed such an occurrence on April 10
Elder admitted that about Februaiy 1938 , after finishing sonie work at the low-lift pump
house- to which he had driven in his car-and because by using his car he had saved
time for the respondent, lie had poured into his car about i/2 gallon of gasoline which
remained from the supply he had taken with him in order to work on the pumps Since
the pump house is situated about a mile from the power plant, it is clear that this
incident was not one of those referred to by Stanley, Long. Huss, Thames, or Jett
562 DECISIONS OF NATIONAL LABOR . RELATIONS BOARD
On April 14 or 15, as we have found, the respondent conducted an
election among the employees at the San Angelo power plant for the
ostensible purpose of determining whether they wanted to be repre-
sented by a union in their dealings with the respondent. A few min-
utes after the balloting terminated Hollowell approached Elder and
said, "Roland, I noticed several of you talking over there after this
ballot was going on. I wonder if you were talking about this ballot?"
When Elder replied affirmatively, Hollowell declared that such a con-
versation might prevent the respondent from getting a true expres-
sion of its employees' desires, adding, "Of course, you boys can do
some things we can't, the company couldn't do." This colloquy, af
fords a clear indication that in April the respondent was aware of
Elder's continuing interest in the Union.
On April 19 Huss summoned Elder to his office and told him that
it was reported that he had been taking gasoline which belonged to
the respondent. Hollowell, who was present, told Elder that it would
be better to resign than to be discharged and that he would like to
be in a position to give Elder a reference in case he applied for a
job elsewhere. Elder, having requested time to consider what action
to take, returned after several hours and refused to resign, where-
upon he was discharged.
In relating these occurrences, Elder did not, upon direct examina-
tion, clearly testify that he had at either conference on April 19 de-
nied the charge made against-him, although subsequently, at the end
of his cross-examination, he declared that he had. Huss and Hol-
lowell testified that Elder made no denial to them. Moreover, Elder
admittedly did not ask for the source of the report. We are of the
opinion that Elder was observed taking small quantities of gasoline.
We believe, however, that this was not the cause of his discharge.
The respondent's continually expressed opposition to the Union
constitutes the background against which the evidence relating spe-
cifically to Elder must be evaluated. From that evidence we-have
found that in September 1937 Huss and Hollowell made clear to.
Elder the respondent's opposition to the Union and, sought to per-
suade him not to participate in its activities. In October Huss at-
tempted to discourage Elder from talking in favor of the Union to
other employees. When the Union received its charter Elder be-
came a member and at that time or later was elected to its executive
board. In April Elder was still an officer of the Union and, we
have found, the respondent was aware of his continuing interest
in that organization.
Elder had been employed by the respondent for 10 years and
had received increases in pay. No complaint was made as to his
work. The first information concerning his misconduct came from
persons with a strong antipathy for the Union. That the respond-
WEST TEXAS UTILITIES COMPANY 563
ent did not accord to an employee of 10 years' standing a warning
when it first obtained knowledge of his conduct but instead took
pains to obtain written proof that Elder was engaged in a minor
peculation, causes us to believe, despite denials by Huss and Hollo-
well, that the respondent utilized Elder's misbehavior as a pretext
for discharging an active union employee.- We find that by dis-
charging Elder the respondent discriminated against him in regard
to his tenure of employment to discourage membership in the Union
and that it thereby interfered with, restrained, and coerced its em-
ployees in the exercise of rights guaranteed in the Act.
J. T. Joyner was employed by the respondent "off and on" from
1928 to October 1938. In the summer of 1937 he was working with
a line crew; he was laid off in November because of lack of work but
in December he was given a few days' work putting up Christmas
stringers; and at the end of December 1937 he was employed to
work with the meter gang, being told at that time by Guthrie that
the work was temporary and might last a day, a week, or a year.
The last employment was in connection with a special project of
removing meters from locations inside customers' buildings to more
accessible outside locations, for which project the respondent had
allotted limited funds.
Joyner became a member of the Union on October 5, 1937, and was
subsequently active in it ; although he attended no meetings during
the first 7 months of 1938, he subsequently went to them and was
a member at the time of the third hearing. We have previously
made findings concerning anti-union statements made to Joyner by
Batjer, the district manager, and Guthrie, the meter foreman, and
concerning the assurance which he gave them, upon their suggestion,
that he had withdrawn from the Union.91
On August 27, 1938, Batjer informed Joyner that since the funds
for the meter project were exhausted, and that since an employee
mimed Jones- was coming back-to San Angelo from Dalhart, the re-
spondent would have to lay Joyner off more or less permanently. when,
Jones returned. At that time Guthrie told Joyner that he would let
him know if any opportunities for employment arose following his
lay-off. Following several unfulfilled predictions of Jones' arrival,
he returned to-work with the meter gang in San Angelo in October
and Joyner was laid off.
Jones, who was not a member of the Union, had worked for the
respondent for 8 years. In 1935 he was transferred from San Angelo
to Dalhart to become chief meter man for District D. In April or
90 See Matter of Titmns Optical Company and Optical Workers Union, Local No 20682,
9 N L R . B 1026 , 1036; Marathon Rubber Products Co. and Frank Reindl , et a] , 10
N. L R B 704, 714; Hearst Consolidated Publications , Inc. and Baltimore Newspaper
Guild, 10 N L R. B 1299, 1314.
91 Supra, III, A, 1.
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
May 1938, Batjer learned from Whitaker, the meter superintendent,
that the Dalhart climate was injurious to the health of one of Jones'
children and a decision was reached to bring Jones back to San Angelo
about the time that school would open. Whereas Joyner was qualified
only to install meters, Jones had the additional capacity to test and
repair them.°2 Following Joyner's lay-off all outside meter work was
performed by two members of the meter gang, Van Zandt and Good-
win. Van Zandt had been in the respondent's employ for 15 or 20
years and in the meter gang for 3 or 4; Goodwin had worked for the
respondent prior to 1928 and since 1935 and had spent 2 years on the
meter crew. The respondent.had no need for an additional "outside"
meter man and Jones spent the major portion of his time repairing
and testing meters.
In November and December 1938, Wayne Coward, a non-union man,
received 12 or more days' employment as an extra ground man in the
distribution department. It is not clear from the record whether he
had previously worked for the respondent in San Angelo or at any
other, place but, in any event, it appears that for several years he had
not been in the respondent's employ. Joyner was qualified to do the
work for which Coward was hired.
The complaint alleges that the respondent discharged and refused
to reinstate Joyner because of his union membership and activities and
because he testified during the first hearing in August 1938.°3 In De-
cember 1937, however, when Joyner was hired, he was told that he
was being engaged for special work of uncertain duration. His em-
ployment was not terminated until 2 months had elapsed from the day
that he originally testified in these proceedings. Significant, too, is
the fact that when Joyner was hired in December 1937, he was told that
he was being engaged for specialized work of a temporary nature.
Jones, moreover, who returned to the meter gang at the same time
that Joyner was laid off, was required and able to do certain work for
which Joyner was not qualified. Finally, while Joyner could have
performed the work for which Coward was engaged, Coward was
hired to work ila the distribution department under the supervision of
Ferguson rather than in the meter gang under Guthrie. Thus, al-
though in August Guthrie had told Joyner that he would inform him
following his prospective lay-off if there was any work, the need for
a man arose in a section distinct from Guthrie's. We find that by lay-
ing off and by not reinstating Joyner the respondent has not discrimi-
!-Flom Itecember 1987 to Tune 1938 the repairing and testing of meters was done by
the "peilodic testing ci ew ," which was operating in the San Angelo district during those
months; from .June until Jones ' arrival this work was performed by Guthrie
' , Jovuei's testimony related to several anti -onion statements made to him by Batjer
;nod Guthrie, to Batter's suggestion that it would be helpful to Joyner in his attempt to
:set woi k if lie would give the respondent a iN ritten statement that he had withdrawn from
the Union , and to Guthi ie s request for information about the place where union meetings
wide held
WEST TEXAS UTILITIES COMPANY - - 565
nated in regard to his hire or tenure of employment to discourage,
membership and activity in a labor organization or because he had
given testimony under the Act.
C. The Committee aiul the Utilities Workers Protective Association
We have hereinabove found that, from the time that the respondent's
employees began to evince in in the Union, vigorous repressive,
measures were taken to, prevent them from belonging to that organi-
zation. Managerial and supervisory employees exercised surveillance
over union activities. They disparaged the Union, advised workers
not to.belong to it, and threatened them with discharge if they became
members-threats which were not idle, for in pursuance of them Wills
and Quinlan were transferred and subsequently they, as well as Elder,
were discharged .94
The inevitable effect of the respondent's persistent and open opposi-
tion to the Union w-as to deprive its employees of the right to select an
outside labor organization, and more particularly the Union, as a col-
lective bargaining agency, and to restrict, their choice-if they cared ,
to. organize-to -some other form of collective representation.°' More-
over, in October 1937, through an article in the house organ, "Electric-
Tunes," the' respondent substantially suggested that its' employees form' ,
an unaffiliated union. In that article, while giving employee's` an in-
complete statement of facts concerning the Act,96 the respondent
pointed out that they could organize a shop committee or plant-limited
union "in opposition to outside dues-collecting unions." 97
It was in this setting that the Committee was formed in July 1938,
a week or 10 days before the opening of the first hearing iii this pro-
ceeding.98 About July 13, a group of non-union employees at the San
Angelo power plant and water works,99 including Clemon Scott, a shift
engineer and supervisory employee,100 and R. H. Stanley, the switch-
°; The respondent's other anti-union activities are set forth in our findings in Section A,
supra. ,,^.
°5 See Hatter of The Falk Corporation and Amalgamated Association of Iron, Steel and
Tin Workers of North America, Lodge 1518, 6 N. L R B 654, enf'd, N L R. B v- Talk
Corporation, 308 U S. 453, 60 S. Ct. 307 -
90 See supra =
B7 Although this advice was published 9 months before the Committee was foinied as
hereinafter discussed, we cannot assume that it failed to have its obviously intended effect
especially since Stanley, one of the leading fignies in organizing the Committee, testified
that as early as November 1937, when lie was transferred to San Angelo, and "tor
months" prior to July 1938, non-union employees had been talking about banding together
in some way to protect their jobs
D8 About the time that the Committee was organised, a union membei at the powci
plant stated that, after the beaming, "things would be quite it lot different" and that it
was the Union's rule for everybody on the job to either get in or get out"
b° The respondent on ns and operates the San Angelo water-supply system The ww atei
works are situated 300 or 400 yards from the po«ei station
100 Schioedei, the iespondcnt's vice president and general superintendent, testified that
the duties of a shift engineer are laigcly snpcivisory and that he is the toieman on his,
shift Thee are at the San Angelo power plant 21 employees, exclusive of the chief engi=
neei, the assistant chief engineer, 3 shift engineets, the plant clerk-chemist,'the main-
283033-41-vol. 22-37
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
board operator who had replaced Wills,l01 held informal discussions
and selected six or seven of their number to consult James P. Farrell,
an attorney who had been suggested by Stanley, concerning steps which
they might take to make known their desire not to be represented by
the Union. Farrell recommended that the Committee be formed to
intervene in this case and, with the men's aid, drafted for circulation
among the employees a petition containing an authorization for the
Committee to act as a collective bargaining agency.102 Among the
seven employees who were selected-without any formal election or
meeting-to serve on the Committee were Scott and-Stanley, and they,
moreover, were active with others in the solicitation of signatures to
the petition 103 Scott also kept some or all of the financial records of
the organization. On July 20 Stanley made a trip to McCamey 101
where he received the aid of Foreman J. M. Poe and utilized the com-
pany's long-distance telephone system 105 in calling a meeting of em-
ployees at which the Committee was explained and a copy of the
petition circulated.
On August 4, at a meeting of employees attended by 34 persons
who had signed the petition,106 H. S. Guthrie, a foreman'107 was
tenance and repair gang , the nightwatch inan , and it yardman Piesumably , therefore, each
shift engineer supervises at least 7 employees
101 See supra
102 The petition not only contains this authorization but recites the benefits accorded to
employees by the respondent ; declares that the Union has made misleading statements and
that the respondent ' s employees do not want to be associated with it ; and cites the signa-
tures on the petition , as well as the results of the election conducted by the ., respondent -in,
April , as proof that the union members constitute it minority of the respondent 's employees
in Districts H and K.
103 Some solicitation of signatures was carried on by employees on company property dur-
ing working hours . While Chief Engineer Huss was nearby Shift Engineer Scott asked
w A. Camfield to sign the petition ; moreover , one of the persons solicited on company
time and property was Ray , a foreman who belonged to the Union. Other than this, how-
ever , there is no evidence that solicitation on company time and property was observed
by supervisory employees.
104 This trip was not made on company time
105 Hollowell, the production superintendent , testified that the telephone system "is not
supposed to be used , except for the conduct of business " It does not appear , however,-that
any supervisory employee observed Stanley's use of the telephone.
10 Included among the 90 persons whose names appear on the petition are Scott and
It. A McMillan , shift engineers whom we have found to be supervisory employees,; and
J. M. Poe and H S. Guthrie , both of whom 'are foremen . Moreover , three'ldcal,managers
signed the petition : N. It. Kennedy of Eldorado , where the ,respondent also employs
it cashier and a laborer-yardman ; Tom Onstott of Sterling City, where there is a cashier
and a janitor -laborer , and W. R Parsons , of Sonora , where a cashier , a linenan-service-
man, and a janitor -yardman are employed . District Manager Batjer testified that local
managers " do the meter reading, account for the collections , make weekly or monthly
reports, . . handle everything connected with the company ' s business at their locations,
which does not involve a question of policy . .."-and, subject to the advice of the district
distribution superintendent , supervise the distribution line employees in their areas Since
it is apparent from this testimony that the local managers are in charge of their local
offices , we find that they are supervisory employees
107 Batier testified that Guthrie is it foreman Ile makes recommendations with respect
to hiring and discharging employees , which Batjer follows in so far as possible ; it is-his
duty, moreover , to report inefficiency or insubordination on the part of `the three men
who work under his supervision regularly except for several days a month when two of
them are "detached" to do meter reading
N
WEST TEXAS UTILITIES COMPANY 567
elected to preside. Five union members came to the meeting and were
permitted to present arguments in favor of their organization. A. S.
Ray,1011 one of the union members, asked leave to bring Wimberly,
international representative of the Union, to address the meeting, but
Stanley opposed Ray's request on the ground that Wimberly had been
instrumental in bringing a charge against the respondent and for the.
further reason, which was also voiced by Guthrie, that Wimberly was;
an "outsider." Thereupon Guthrie called for persons in favor of-
allowing Wimberly to talk, but no one responded. When someone
suggested that a constitution and bylaws committee be appointed,
Guthrie nominated Stanley as chairman and four other persons as
members and the meeting confirmed the nominees without dissenting
vote.
In the latter part of August, Stanley was elected president and
Guthrie vice president of the Committee. On October 11, 1938, fol-
lowing a number of meetings held to consider a draft prepared by-
Stanley's subcommittee, the organization adopted a constitution and
thereby became the Association. Officers of the Committee continued
to serve as officers of its successor, but they were supplemented by an
elected executive board of five members, one of whom was Scott_
Stanley testified in December 1938 that meetings of the Association
had been held at San Angelo and that a local had been established at
McCamey.109 However, due to the pendency of these proceedings, no
effort was made to bargain collectively with the respondent.
We, pass to a review and evaluation of the respondent's conduct
hereinabove,described. In the first place, the resporiderlt.by:its. out-
spoken and persistent hostility to the Union effectively denied the
employees the right to representation by an outside union, and induced
and encouraged employee opposition to an organization of that type.
Secondly, at a time when the Union had thus been proscribed, the'
respondent indicated to its employees through its house organ, "Elec-
tric Times," that they were free to form an inside union. Thirdly,
the respondent,-through a number of supervisory employees-took
part in the formation and administration of the Committee and its
successor, the Association. As we have seen, Scott participated in the
initial July discussions which led ' to designation of a committee to
consult Farrell; became a member of the Committee; signed and'
solicited signatures to the petition; kept the Committee's financial
records; and subsequently was elected to the Association's executive
board. Guthrie signed the petition ; presided at the meeting of August
108 Ray is a foreman Cf supra , footnote 32
109 Although employees in District G. as well as in Districts H and K, are eligible to
join the Association, the record does not disclose that any effort has been made to solicit
their membership.
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4; in that capacity appointed a. subcommittee to draft a constitution,
and, moreover, voiced opposition to permitting Wimberly to speak;
and later became vice president of the Association. Poe helped assem-
ble employees for the meeting at McCamey, and, furthermore, signed
the petition, as did E. A. McMillan, a shift engineer"' at the San
Angelo plant, and three local managers."
We find that the respondent, through its opposition-on the one
hand-to an outside union and its approval-on the other hand-of
an inside organization, created a favorable situation for the forma-
tion of the Committee and that it thereby interfered with and lent
aid to the establishment of that organization. Similarly, through the
participation of supervisory employees in the activities of the Com-
mittee and the Association, the respondent dominated, interfered with,
and supported the inside organization. The latter fact is brought
into sharp relief by the respondent's conduct when employees of simi-
lar status joined or displayed sympathy for the Union. In that con-
nection we have seen that Transmission Superintendent Longley told
A. S. Ray, a foreman with duties comparable to Poe's, that if he owned
a business, he would discharge an employee who- joined a union.
Similarly both Hollowell and Huss made it clear to C. J. Williams,
a shift engineer'112 that they did not approve of his attitude toward
the Union and Huss baldly told him, "If it ain't stopped, I am going
to fire every damn man in here . . ."
The respondent and the Association contend that the respondent is
not responsible for the activity of Scott and Guthrie in relation to the
Committee and the Association.111 In support of this contention it
is argued, first, that Guthrie and Scott are themselves working em-
ployees; second, that their supervisory authority, if any, extends to a
limited group of employees; third, that they are not only eligible for
membership in the Union but also entitled to act in their own behalf
in the formation of a labor organization; and finally, that the desig-
nation of Guthrie to preside at the meeting of August 4 and of Scott
and Guthrie to serve as officers of the Committee and the Association
was, in so far as the record discloses, the free choice of the members
110 See supra, footnote 100
111 It is clear that the respondent knew of the participation of supervisory employees
in the activities of the Committee In the first place, on July 25 the seven members of the
Committee , including Scott , filed a motion to intervene in this proceeding On July 30,
moreover, the Committee introduced as an exhibit, the petition previously referred to. which
bore the signatures of Scott , Guthrie, McMillan , Poe, and the three local managers Cf
supra, footnote 106
112 Williams had the same supervisory status as Scott and Guthrie who were participants
in the Association
113 McMillan, Poe, and the local managers were not mentioned in the Proposed Findings,
but we assume that both the respondent and the Association would have raised analogous
exceptions to our pi esept findings concerning them . Consequently the discussion in the text
is intended to apply not only to Scott and Guthrie but to McMillan, Poe, and the local
managers as well.
WEST TEXAS UTILITIES COMPANY 569
of those organizations. These facts, however, do not relieve the re-
spondent of accountability for the acts of Scott and Guthrie."'
In the first place, as we have found, Scott and Guthrie are super-
visory employees. That they are themselves engaged in actual pro-
duction and distribution work is in no way inconsistent with their
exercising supervisory authority. Secondly, the fact that their au-
thority relates only to a limited group of employees is not controlling.
With respect to his subordinates, a foreman constitutes the voice of
the employer. The impact of his conduct is not restricted, however,
to the employees actually under his charge, for in the eyes of others
as well, his actions are those of the management.
We turn to the third point raised by the exceptions-namely, the
eligibility of Scott and Guthrie for membership in the Union and
their right to participate in the formation of a labor organization
on their own behalf. 'Initially it should be pointed out that we do not
have to pass on the effect which these factors might have had on the
respondent's accountability for the conduct of its supervisory em-
ployees if it had maintained a neutral and impartial attitude toward
rival labor organizations. That situation is not present here because
the respondent, through its managerial and supervisory employees,
was active and outspoken in its opposition to the Union and had ex-
plicitly reprimanded two foremen, Williams and Ray, for their ap-
parent sympathy with that organization. Under these circumstances
the factors to which the respondent adverts are not determinative of
the issue of its responsibility for the conduct of its supervisory em-
-ployees. The contrast in the respondent's attitude toward the rival
labor organizations makes plain to us, as it necessarily must have to
its employees, that the respondent approved, of and consented to the
114 See International Association of Machinists, Tool and Die Makers Lodge No. 35,
affiliated with the International Association of Machinists, et at v N L R B , 110 F.
(2d) 29 (C A , D C ), enf'g Matter of The Se) rick Corporation and International Union,
United Automobile Il7orhers of America, Local No. 459, 8 N L R. B 621, where the court
said
It may be permissible for an employer merely to express a preference between
two unions otherwise contending freely for position as bargaining representative,
although this has-obvious dangers and limitations and the final authority has not
so held But he cannot go further and lend a hand, openly or covertly, to one
of tie contestants The basic policy of the Act is "hands off" so far as he is
concei tied The statute, we think purposely, does not define the particular methods
or agents by vihich the employer may inteimeddle unlawfully Had it done so,
easy escape would have been opened from the Act's provisions. Nothing in it re-
qunes that such representation be limited to officials having any particular kind
or degree of authority, such as "hiring and firing," "disciplinai y power" or even
"supervisory capacity " These elidences of authority make more plain the connec-
tion of the actor with the employer, but their absence does not pieclude the existence
of such a connection what is requited is that substantial evidence show that the
actor, whatever his official position, is acting in fact on behalf of the employer, not
for himself or others only and that, by whatever methods or means, the employer
brings pressure to bear upon his employees which deprives them of free and
independent choice
,570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity of its supervisory employees in the Committee and the
Association.115
We must likewise reject the final argument referred to above,
because from the foregoing we conclude that Scott and Guthrie--in
participating in the activities of the Committee and the Association-
acted as agents of the respondent. Consequently it is immaterial
whether or not they were designated as temporary and permanent
'officers of those organizations by means not in themselves improper.-'
We conclude that, under the facts of this case, Scott, McMillan,
Guthrie, Poe, and the local managers were acting in behalf of the re-
spondent in the formation and administration of the Committee and
the Association and that the respondent is responsible for their
activity.117
Upon the basis of the foregoing we find that the respondent domi-
nated and interfered with the formation and administration of the
-Committee and of the Association and contributed support to them,
and that it thereby interfered with, restrained, and coerced its 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
The activities of the respondent set forth in Section III above,
occurring in connection with. its operations described in Section I
above, have a close, intimate, and substantial relation to trade, traffic,
and colhinerce among the several States and' tend to lead-to labor, dis-
putes burdening and obstructing commerce aiid the free ' fldw-''of
commerce.
115 See Matter of Humble Oil & Refining Company and Oil Workers International Union,
Locals Nos 333 and 316, 16 N L. R B. 112
IID Cf N L R B v Brown Papci Mill Company . Inc, 108 F (2d) 867 (C C A 5 decided
January 17 , 1940 ), enf'g Matter of Brown Paper Mill Company , Inc, Monroe , Louisiana
and International Brotherhood of Paper Makers, affiliated with the American Federation
of Labor, et al , 12 N. L R B 60 , N L R B V Newport News Shipbuilding & Dry Dock
Company, 308 U S 241, 60 S Ct 208, enf 'g Matter of Newport News Shipbuilding and
Dry Dock Company and Industrial Union of Marine and Shipbuilding Workers of America,
8 N L R B 866
117 See Swift & Company v N L R. B, 106 F (2d) 87 (C C A 10), rehearing denied,
106 F ( 2d) 94 (C C A 10), enf'g as mod. Matter of Swift & Company, a Corporation
and Amalgamated Meat Cutters and Butcher Workmen of North America, Local No. 6111
et at ., 7 N L R B 269 ; International Association of Machinists, Tool and Die Makers
Lodge No 35, affiliated with the International Association of Machinists , et at V N. L
R B , 110 F ( 2d) 29 (C A, D C , decided Novembei 20, 1939 ), enf g Matter of The Seri ick
Corporation and International Union, United Automobile Workers of America , Local No
4459, 8 N L R B 621
Cf also Matter of Ward Baking Company and Committee for Industrial Organization,
8 N L R B 558, 565 ; Matter of Tennessee Copper Company and A F of L Federal
Union No 21164, 8 N. L R B 575 , 578; Matter of West Oregon Lumber Company and
Sawmill Workers Local Union No. 3, International Woodworkers of America , 20 N. L.
R B 1
WEST TEXAS UTILITIES COMPANY
V. THE REMEDY
571
We have found that the respondent has engaged in certain unfair
labor practices. It is essential, in order to effectuate the policies of
the Act, that the respondent be ordered to cease and desist from those
activities and practices, and to take certain affirmative action more
particularly described below.
Having found that Wills, Quinlan, and Elder were discharged,
because of their membership and activity in the Union, we shall
order the respondent to reinstate them to the positions which they
formerly held."" Since, moreover, we have found that Wills was
transferred from his post as switchboard operator to a less desirable
position in the repair and maintenance gang, that Quinlan was trans-
ferred from San Angelo to McCamey, and that these transfers were
motivated by a desire to frustrate organizational activity of the Union,
we shall direct that Wills and Quinlan, when rehired, be reinstated to
the positions held by them before their transfer. We shall order the
respondent, furthermore, to make whole Wills, Quinlan, and Elder
for any loss of pay each of them may have suffered by reason of his
discharge by payment to each of them of a sum of money equal to the
amount which he normally would have earned as wages from the
"'As the result of the injury which he assertedly sustained on December 7, 1937 , wills,
on January 17, 1938, filed a claim for compensation with the Texas Industrial Accident
Board . Since physicians had not yet determined the nature of wills' indisposition, wills'
attorney , as a matter of precaution , pleaded total and permanent disability . On April
27, 1938, after the Industrial Accident Board had ruled against wills' claim , he filed
a petition in the District Court of Tom Green County , appealing from that - ruling and
reiterating the allegation as to his total and permanent disability. The action was
later removed to the Federal Court and ultimately was settled by payment to wills of $400
by the respondent ' s insurance carrier In testifying at the first hearing in this proceeding,
wills stated that the allegations in his compensation claim were true, that he had been
totally and permanently disabled , and that at the time of testifying lie still was so disabled
when wills was iecalled to the stand several days later lie testified that he had conferred
with his physician and had been informed that lie was able, and that he considered himself
able , to perform the duties of switchboard operator . Wills , at the time of the third
hearing , had filed against the respondent an action for slander asking damages of $25,000,
and another action for damages of $2,200 The action for slander was based on the follow-
ing alleged statement by 1-lass conceiving Wills- "There is nothing wiling with him;
lie is just trying to put the big britches on the Company " The subject mattes of the
other suit is not disclosed by the record
The respondent contends that , because wills claimed in his compensation action to ha'e
been totally and permanently disabled, neither should lie be heaid to seek reinstatement
nor, because of the suits which lie has filed against the respondent since his discharge,
should the respondent be compelled to reinstate him
we are unwilling to apply a technical rule of estoppel , because it is not unreasonable
that before the nature of his mjmy becomes known , a plaintiff in it workmens compensa-
tion action , in order fully to protect himself and his rights , should assert the broadest
possible claim while it is concenable that under ordinary circumstances the respondent
would refuse to continue the employment of a woiker who had brought three legal actions
against it , we ale of the opinion that , since the respondent violated the provisions of the
Act in discharging wills , the purposes of the Act will best be effectuated if wills is rein-
stated The fact that wills is a party adverse to the respondent in two pending actions at
law is not a serious obstacle to the peifoimance of his duties in the respondents employ.
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date of the termination of--his employment to the date of reinstate-
ment, less his net earnings 119 during that period.120
We have found that the respondent dominated and interfered with
the formation and administration of the Committee and of the Asso-
ciation and contributed support to them. The continued existence
of the Association constitutes a continuing obstacle to the free exercise
by its employees of their right to self-organization and to bargain
collectively through representatives of their own choosing. In order
.to make the cease and desist portion of our order effective and to
remove this obstacle to the exercise of rights guaranteed by the Act,
we will order the respondent not to recognize the Committee or the
Association as collective bargaining representative of its employees.
We shall, moreover, direct the respondent to post notices in con-
spicuous places throughout its system stating that it will cease and
,desist from its unfair labor practices and that it will take the afrma-
.tive action required by our Order; and to notify the Regional Director
within ten (10) days of the steps which it has taken to comply with
our Order.
VI. TH E QUESTION CONCERNING REPRESENTATION
On April 11, 1938, the Union attempted to open collective bargaining
-negotiations with the respondent, claiming that certain employees in
Districts H and K constituted an appropriate unit for the purposes
of collective bargaining and that it represented a majority of the
employees in the unit. Schroeder, vice president and general superin-
tendent of the respondent, stated that he "did not believe" that the
Union represented a majority. Although the Union suggested that
an election be conducted by a "government official" to determine
whether it had a majority, Schroeder rejected this plan for resolving
the question and informed the Union that the respondent "would not
enter into-any agreement" with the Union for the unit claimed to be
"'BY "net earnings" is meant earnings less expenses , such as for teanspoitation, 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 the unlawful
termination of his employment 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 workeis Union, Local 2590, S N. L R B
440. Monies received for work performed upon Federal , State , county , municipal , or other
work-relief projects are not considered as earnings , but, as provided below in the Order,
shall be deducted from the sum due the employee , and the amount thereof shall be paid
over to the appropriate fiscal agency of the Federal , State, county , municipal , or other
government or governments which supplied the funds for said work -relief projects
120 As we have previously noted , sups a , footnote 118, wills testified on July 27 , 1938, that
he had been unable to work since the date of his claimed injury , December 7, 1937. On
August 3, 1938 , he resumed the stand to testify , that lie had consulted his physician, that
he had been pronounced fit to work as a switchboard operator , and that he was willing to
do so we shall accordingly order that wills be reimbursed for his loss of pay for a
period commencing August 4 , 1938 , rather than the date of his discharge
WEST TEXAS UTILITIES COMPANY 573
appropriate, or for "any other division of the company." Schroeder
declared, moreover, "that he would not meet with a group of his
employees for the purpose of negotiating an agreement until ordered
to do so by the . . . Board." We find that a question has arisen con-
cerning representation of the employees of the respondent.
VII. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the respondent,
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tends to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VIII. THE APPROPRIATE UNIT
In its amended petition the Union claims that the appropriate unit
comprises "all persons . . . engaged in the generation, transmission
and distribution of electric energy and power and in the installa-
tion and servicing of the electrical equipment and appliances in
.. . Districts H and K . . ." The Association takes a similar posi-
tion, except that it desires the inclusion in the unit, while the Union
desires the exclusion, of meter readers and of certain hourly paid
maintenance and repair men.121 The respondent, in its answer to
the amended petition, maintains that the unit should be coextensive
with its entire system or, alternatively, with the entire system exclu-
sive of District D, which is geographically separated from all the-
others.
The respondent has never -nlet with any committee representing
a, group of its employees concerning wages, hours, or working condi-
tions; has never had a contract with a labor organization; and has
handled all matters of employment by dealing with individual em-
ployees. No labor organization other than the Union and the Asso-
ciation has attempted. to organize the respondent's employees. From
Wimberly's activity in Quanah 122 in November 1937, which the re-
spondent assiduously sought to discourage, and from the testimony,
of Ingram and Wimberly, it appears that the Union desires ultimately
to organize all the respondent's employees who are eligible for mem-
bership in it. Under the circumstances, and especially in view of
the obstacles which the respondent has interposed to self-organiza-
22i Since we have found the Association to be company dominated , we give no considera-
tion to its contention concerning the unit The maintenance and repair men are discussed
infra
122 Quanah , which is approximately 200 miles from San Angelo , is in District E
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Lion of its employees, we are of the opinion that the employees in
Districts H and K should not be compelled to await complete organi-
zation of the respondent's system before being afforded the full
enjoyment of the rights guaranteed in the Act.123 We find that a
bargaining unit limited to Districts H and K is appropriate. We
pass to a consideration of whether or not certain individuals and
groups of individuals should be included within that unit.
M. D. Nunnally, Jr. and W. A. Mosley divide their time equally
between installation and delivery of appliances while L. V. W. Pied-
ford is engaged in the repair of appliances and delivery of merchan-
dise. Ingram testified that the Union had not "undertaken to repre-
sent ... delivery men." Since these men are partially engaged in
tasks requiring that they be qualified to do electrical work, they should
be included in the unit.
At the San Angelo plant there are 20-odd men who spend part or
all of their time in maintenance and repair work. Of these approxi-
mately a dozen 124 constitute the maintenance and repair gang and are
engaged exclusively in work of that nature. They are paid on an
hourly basis and do not have continuous employment, whereas the
others receive monthly salaries and are regularly employed .125 The
average wage of the gang members is 40 cents an hour, which is con-
siderably less than the compensation of the employees engaged wholly
or partially in maintenance and repair work, the lowest paid of whom
receives $90 and the remainder from $120 to $155 per month.126 While
several of the gang members may be skilled workmen'127 none need be
an electrician 128 and few, if any, are qualified for operating positions
at the station. The salaried men, on the other hand, are required to
129 See Matter of The Western Union Telegraph Company , Inc and The Commercial Teleg-
raphers' Union, 11 N. L. R. B 1154; Matter of R. C. A. Communications , Inc. and
American Radio Telegraphists ' Association, 2 N L R . B. 1109
124 At the time of the hearing this gang consisted of 13 men From a stipulation intro-
duced into the record subsequent to the hearing it appears that one of these men is now
employed as an assistant engineer and another as assistant engineer and fireman
125 In many instances vacancies in salaried positions are filled by promotion of an hourly
paid worker from the maintenance and repair gang
126 Employees work 8 hours a day, 6 days a week
121 Hollowell , the production manager, testified that a majority of the maintenance and
repair men , including both salaried and hourly paid workers , were common laborers. At
the time he testified, the salaried and hourly men together numbered 21, of whom 11 would
constitute a majority . Since all but one of the salaried men receive compensation con-
siderably in excess of that earned by the hourly men, we infer that they are not common
laborers. Consequently the "majority" referred to by Hollowell, which consists of at
least 11 common laborers , must be composed principally of hourly men This conclusion
is corroborated by Brewer's testimony that all but one of the men in the maintenance and
repair gang ate common laborers In the light of Hollowell' s and Brewer ' s testimony
it is apparent that Huss, in stating that skilled men were required for a "majority" or
for "some" of the maintenance and repair work, had reference to tasks performed by the
salaried as well as by the hourly men That this is the import of Huss' testimony is
further borne out by the fact that attorneys and witnesses alike used the phrase "main-
tenance and repair" to refer not only to the gang of hourly workers but also to the entire
group of both salaried and hourly workers.
128 The plant maintenance electrician is a salaried employee
WEST TEXAS UTILITIES COMPANY 575
have sufficient skill to enable them to work at operating posts and at
least half of them spend a substantial portion of their time at such
posts.
The Union contends that the hourly paid maintenance and repair
men should be excluded from the unit. 129 While the Association takes
a contrary position, we have found that organization to be company
dominated. The Union is, therefore, the only bona fide labor organi-
zation which has been chosen by employees of the respondent as a
collective bargaining agency.130 The distinctions which exist between
the salaried and hourly maintenance and repair workers sufficiently
differentiate them to warrant the exclusion of the latter from the unit,
upon the request of the single bona fide labor organization involved.
We find, accordingly, that the hourly maintenance and repair workers
should not be included in the unit.
The respondent contends that clerical and sales employees should
be included in the Unit. The Union, however, does not admit such
persons to membership and we shall, therefore, exclude them.
Similarly the respondent maintains that the unit should comprise
supervisory employees. While at least two such employees are mem-
bers of the Union, that organization did not at the hearing expressly
indicate that it desired supervisory employees included in the unit
and consequently in our Proposed Findings we declared that they
would be excluded. Since the Union took no exception to the Pro-
posed Findings in this respect, we infer that it does not want super-
visory employees to be included within the unit. Under these cir-
cumstances we shall follow our customary practice and exclude super-
visory employees from the unit.lal
There is no dispute between the parties other than those which we
have discussed. Since the Union has not undertaken to represent
janitors, night watchmen, yard clean-up men, chemists, full-time
meter readers '112 or delivery men, and since no contention is made by
any of the parties that employees in these classifications should be
included in the unit, we shall exclude them from it.
129 Although one union member worked on the, maintenance and repair gang at the
time that lie joined „ he had become a salaried worker about 4 months prior to the first
hearing.
'30 See Matter of Nekoosa-Edwards Paper Company and International Brotherhood of
Paper Makers, Local No 59, 11 N L R. B. 447
iii See Matter of Vaal-Ballou Press, Inc. and Binghamton Printing Pressmen's and
Assistants ' Union , No 57, 1 P. P and A U., of Binghamton, N. Y, et al, 15 N. L. It. B.
378; Matter of Union Envelope Company and Envelope Workers Union No 893, et al, 10
N L R B 1147
The record discloses that all local managers in Districts I3 and K are in charge of one
or more subordinate employees and we find, consequently, that they are supervisory
employees . Cf supra, footnote 106. We have previously found, moreover, that shift
engineers are supervisory employees See supra , footnote 100
182 Several employees spend pait of their time reading meters but are also occupied with
repairing , installing , and testing meters. Since these men must have greater technical
qualifications than are required of meter readers, we shall include them in the unit.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that employees of the respondent in Districts H and K
engaged in the generation , transmission , and distribution of electrical
energy and power, and in the installation and servicing of electrical
equipment and appliances , excluding supervisory employees , clerical
employees , sales employees , full-time meter readers , chemists , hourly
paid maintenance and repair workers at the San Angelo power
plant, night watchmen , janitors, yard clean-up men , and delivery men,
but including employees at least partially engaged in the repair or
installation of electric meters or appliances , constitute a unit appro-
priate for the purposes of collective bargaining , and that this unit
will insure to employees of the respondent the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
IX. THE DETERMINATION OF REPRESENTATIVES
The Union made no effort at the hearing to introduce formal proof
that it represented a majority of the employees in the appropriate
unit, but requested that an election be held to determine the question
concerning representation . We shall order the Regional Director to
hold an election by secret ballot to determine whether or not em-
ployees of the respondent in the appropriate unit desire to be rep-
resented by the Union for the purposes of collective bargaining.133
.Since the respondent has, by engaging in various unfair labor prac-
tices, interfered with the exercise by its employees of the rights guar-
anteed them by the Act, we shall not now set the date for the election.
We shall hold the election, however, upon receipt of information from
the Regional Director that the circumstances permit a free choice of
representatives unaffected by the respondent's unlawful acts.
Upon the basis of the foregoing findings of fact and upon the entire
record in the case, the Board makes the following:
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, affiliated with
the American Federation of Labor, the Committee, and Utilities
Workers Protective Association are labor organizations, within the
meaning of Section 2 (5) of the Act.
2. The respondent, by discriminating in regard to the condition and
tenure of employment of W. H. Wills and Volney R. Quinlan, and by
discriminating in regard to the tenure of employment of R. S. Elder,
181 we make no provision for inclusion on the ballot of the Association since we have
found that the respondent dominated and interfered with and contributed support to it
in its formation and administration.
NEST TEXAS UTILITIES COMPANY 577
to discourage membership in the Union, has engaged in and is engag-
ing in unfair labor practices, within the meaning of Section 8 (3) of
the Act.
3. The respondent, by dominating and interfering with the forma-
tion and administration of Utilities Workers Protective Association
and its predecessor, the Committee, and by contributing support to
them, has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (2), of the Act.
4. The respondent, by interfering with, restraining, and coercing its,
employees in the exercise of the rights guaranteed in Section 7 of the
At, has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
6. A question affecting commerce has arisen concerning the repre-
sentation of employees of the respondent, within the meaning of Sec-
tion 9 (c) and Section 2 (6) and (7) of the Act.
7. The following employees of the respondent constitute a unit
appropriate for the purposes of collective bargaining : employees in
Districts H and K engaged in the generation, transmission, and dis-
tribution of electrical energy and power and in the installation and
servicing of electrical equipment and appliances, excluding supervisory
employees, clerical employees, sales employees, full-time meter readers,
chemists, hourly paid maintenance and repair men at the San Angelo
power plant, night watchmen, janitors, yard clean-up men, and de-
livery men, but including employees at least partially engaged in the
repair or installation of electric meters or appliances.
8. The respondent by discharging or laying off G. L. Yarbrough and
J. T. Joyner has not engaged in any unfair labor practice, within the
meaning of Section 8 (1) or (3) 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 Act, the Board hereby
orders that the respondent, West Texas Utilities Company, its officers,
agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Electrical Workers or any other labor organization by discharging,
transferring, or refusing to reinstate any of its employees because of
membership in such organization, or by discriminating in any other
manner in regard to their hire and tenure of employment or any
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
term or condition of employment because of membership in said
Union or in any other labor organization;
(b) Dominating or interfering with the formation and administra-
tion of the Utilities Workers Protective Association , the Committee,
or any other labor organization of its employees , or from contribut-
ing support to the Utilities Workers Protective Association, the
-Committee , or any other labor organization of its employees;
^c) In any other manner interfering with, restraining , or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist labor organizations , to bargain collectively
through representatives of their own choosing , and to engage in
concerted activities for the purposes of collective bargaining or
,other mutual aid or protection , as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action , which the Board finds
will effectuate the policies of the Act :
(a) Refuse to recognize the Utilities Workers Protective Associa-
tion or the Committee as the representative of any of its employees
-for the purpose of dealing with the respondent concerning griev-
ances , labor disputes , wages, rates of pay, hours of employment, or
other conditions of work;
(b) Offer to W. H . Wills, Volney R. Quinlan , and R . S. Elder
immediate and full reinstatement to the positions held by each of
them prior to December 5, 1937 , November 22 , 1937, and April 19,
1938, respectively , without prejudice to their seniority or other rights
and privileges;
(c) Make whole Volney R. Quinlan and R . S. Elder for any loss
of pay each of them has suffered by reason of his . discharge , by pay-
ment to him 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 such offer of reinstatement , less his net
earnings during that period; and make whole W. H. Wills for any
loss of pay he has suffered by reason of his discharge by payment
to him of a sum of money equal to that which he normally would
have earned as wages from August 4 , 1938, to the date of such offer
of reinstatement , less his net earnings during that period ; deducting,
however, from the amount otherwise due to each of these persons
monies earned by him during the designated period for work per-
formed upon Federal , State, county , municipal , or other work-relief
projects, and pay over the- amount so deducted to the appropriate
fiscal agency of the Federal , State, county , municipal , or other
government or governments which supplied the funds for those
work-relief projects;
(d) Post immediately in conspicuous places throughout its system,
and maintain for a period of at least sixty ( 60) consecutive days, notices
WEST TEXAS UTILITIES COMPANY 579
to its employees stating that the respondent will cease and desist as
provided in 1 (a), (b), and (c), and will take the affirmative action
described in 2 (a), (b), and (c) of this Order, and that the respondent's
employees are free to become or remain members of International
Brotherhood of Electrical Workers and that the respondent will not
discriminate against any employee because of membership or activity
in that organization ;
(e) Notify the Regional Director in writing within ten (T0) days
from the date of this Order what steps the respondent has taken to
comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in so far as it alleges that G. L. Yarbrough was discharged
because of his membership and activities in the Union and that J. T.
Joyner was discharged because of his membership and activities in the
Union and because lie gave testimony under the Act.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, and pursuant to Article III, Section 8, of National
Labor Relations Board Rules and Regulations-Series 2, as amended,
it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with the respondent, West Texas Utilities Company, San Angelo,
Texas, an election by secret ballot shall be conducted at such time as
the Board shall hereafter direct under the supervision of the Regional
Director, acting in this matter as agent for the Board, and subject to
Article III, Section 9, of said Rules and Regulations, among the re-
spondent's employees in Districts H and K engaged in the generation,
transmission, and distribution of electrical energy and power and
in the installation and servicing of electrical equipment and appliances,
excluding supervisory employees, clerical employees, sales employees,
full-time meter readers, chemists, hourly paid maintenance and repair
workers at the San Angelo power plant, night watchmen, janitors,
yard clean-up men, and delivery men, but including employees at least
partially engaged in the repair or installation of electric meters or
appliances, who shall be employed by the respondent during a pay-roll
period hereafter to be designated by us to determine whether or not
they desire to be represented by Local 898, International Brother-
hood of Electrical Workers, affiliated with the American Federation
of Labor, for the purposes of collective bargaining.