West Texas Utilities Co., Inc.

National Labor Relations Board - Board DecisionsSep 19, 1949

85 N.L.R.B. 1396 (N.L.R.B. 1949)

In the Matter of WEST TEXAS UTILITIES COMPANY, INC. and INTERNA- TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCALS No. 898, 920, AND 1044, AFL Case No. 16-CA46.Decided September 19,1949 DECISION AND ORDER On January 26, 1949, Trial Examiner James A. Shaw issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other alleged unfair labor practices, and recommended dismissal of these allegations of the complaint. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Respondent's request for oral argument is hereby denied, as the record and briefs, in our opinion, adequately set forth the positions of the parties. The Board has reviewed the rulings made by the Trial Examiner .at the hearing, and finds that no prejudicial error was committed. 1 The Respondent also filed a motion that the Board make further findings of fact concern- ing: (a ) the Respondent ' s participation in the solicitation of the "first petitions" ; ( b) the effect of its reliance on the advice of the Regional Director and the Regional Attorney in determining the propriety of its submission of the "second petitions " to its employees ; and (c) its good faith in relying , on September 19, 1947, upon the "legal opinion" of the General Counsel of the National Labor Relations Board, to the effect that no local or international union was in compliance with Section 9 (f), (g), and ( h) of the Act unless its parent federation was in compliance, and its refusal to bargain with the Union until the A. F. L. came into compliance . In the alternative, the motion requested the Board to remand the case to the Trial Examiner to take additional testimony and make specific findings of fact on the above-mentioned points. In addition , the Respondent requested oral argument in support of the motion. To the extent consistent with our decision herein, the request for additional Board findings is granted. In all other respects , the motion is denied. 85 N. L . R. B., No. 225. 1396 WEST TEXAS UTILITIES COMPANY, INC. 1397 The rulings are hereby affirmed.2 The Board has considered the In- termediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner, but only insofar as they are consistent with this Decision and Order.3 1. We find, as did the Trial Examiner, that on September 19, and on November 8, 1947, and thereafter, the Respondent refused to bar- gain collectively with the Union, in violation of Section 8 (a) (5) of the Act. On August 12, 1946, following an election, the Union was certified by the Regional Director as the bargaining representative of the em- ployees in the appropriate unit. Thereafter, the Respondent bar- gained with the Union until, on May 17, 1947, substantial agreement was reached upon the terms of a proposed contract. On that day, for reasons fully set forth in the Intermediate Report, the parties agreed not to sign any contract, but, pending the execution of a complete contract in the future, to put into immediate effect one clause of the proposed agreement dealing with wages for stand-by time. There- after, the Union became dissatisfied with the Respondent's method of effectuating the stand-by time arrangement, and sought to meet with the Respondent to discuss the subject. After some delay on the part of the Respondent, a meeting was arranged for September 30, 1947. On September 19, 1947, however, the Respondent informed the Union that it had learned of a "legal opinion" 4 of the General Counsel 2 At the hearing, the Trial Examiner denied the Respondent 's motion that he withdraw from the hearing because of bias and prejudice . Appeal from the ruling was taken to the Board on July 26 , 1948, and on August 5, 1948, the appeal was denied upon the ground that there was at that time no good reason to consider the Trial Examiner's rulings. The Respondent' s accusation of bias and prejudice was based exclusively upon the Trial Examiner's refusal to admit in evidence recordings of transactions between the Respondent and the Union at some 75 hours of bargaining meetings . We find no evidence of bias and prejudice on the part of the Trial Examiner . Moreover, as the recordings were offered to show that the Respondent bargained in good faith with the Union, and as even without the recordings , the Trial Examiner found, as does the Board , that the Respondent did bargain in good faith during the meetings in question , the Respondent was not prejudiced by the Trial Examiner' s ruling. I In making his unit finding, the Trial Examiner excluded "all supervisory employees having authority to hire, promote , discharge and discipline employees or otherwise effect changes in the status of employees or effectively recommend such action ." In view of the definition of the term " supervisor" in the amended Act, we shall amend the unit finding to exclude all supervisors as defined in the Act, i. e., all individuals "having authority, in the interest of the employer , to hire, transfer , suspend, lay off, recall, promote , discharge, assign , reward, or discipline other employees , or responsibly to direct them, or to adjust their grievances , or effectively recommend such action , if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment ." ( Section 2 (11) of the amended Act.) 4 The Respondent does not cite the "legal opinion" relied upon, and we can find no evidence of any such opinion having been formally issued. The General Counsel at that time was, however , advancing the interpretation of compliance which the Respondent attributes to him, and certain Regional Offices had acted consistently therewith. a 1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of the National Labor Relations Board to the effect that no union, local or international, could be considered in compliance with Section 9 (f), (g), and (h) of the amended Act, unless its parent federation were also in compliance, and that it would not bargain further with the Union until compliance had, been achieved. At that time, Locals 898, 920, and 1044, and the International Brotherhood of Electrical Workers had actually complied with that section of the Act, although the American Federation of Labor, the parent federation of the Inter- national and thus of the Union here involved, had not yet done so. For approximately 1 month. after September 19, the Respondent concededly refused to meet with the Union to discuss terms and conditions of employment. On October 7, 1947, the Board issued the first authoritative de- cision defining the meaning of the term "national or international labor organization" as used in Section 9 (f), (g), and (h) of the Act.5 It declared that this term did not refer to parent federations, such as the A. F. L. and the C. I. 0., and that consequently com- pliance by these organizations with the requirements of Section 9 (f), (g), and (h) was not a condition precedent to processing cases filed by their constituent national or international labor unions which were themselves in compliance. On October 18, 1947, the Union noti- fied the Respondent of this decision of the Board and requested the resumption of bargaining negotiations. A conference was arranged for November 10, 1947. Two days before this date, the Respondent canceled the conference and informed the Union that it would not meet with it again until the Board had acted on certain petitions re- ceived from the employees during the first week of November. The Respondent has not bargained with the Union since September 19, 1947. The Respondent contends that it should be excused for its refusal to bargain between September 19 6 and October 18, 1947, because it relied upon the view held by the General Counsel that no international union affiliated with the A. F. L. could be considered in compliance with the filing requirements of the statute unless the A. F. L. itself was also in compliance, and because its refusal to bargain was con- ditioned and temporary. As noted, the Board in the Northern Virginia Broadcasters case rejected the General Counsel's interpretation of Section 9 (f), (g), and (h) as erroneous. The Union here was, in fact, at all times in question in full compliance. It is no defense to the Respondent's re- Matter of Northern Virginia Broadcasters, Inc., 75 N. L. R. B. 11. The Respondent does not contend that the Union had lost its majority by September 19. In view of the Regional Director 's certification of the Union in August 1946, we find that on September 19, 1947 , the Union was the statutory representative of the employees in the appropriate unit. 0 WEST TEXAS UTILITIES COMPANY, INC. 1399- fusa.l to bargain that it acted upon the.erroneous belief that the Union was not in compliance, because of a mistaken interpretation of the new statute by the General Counsel. One who commits an unlawful act because of an honest, but mistaken, understanding of the law is not absolved from responsibility for his unlawful conduct.? The case is no different because the Respondent apparently relied upon an interpretation of the statute advanced by the General Counsel, a statu- tory officer. His primary function is to investigate charges and prosecute cases before the Board. The task of making binding inter- pretations of the meaning of the Act is a judicial function, vested in the Board Members with ultimate power of review in the courts. The Respondent's further refusal to bargain on and after November 8, 1947, is not excused by the receipt of the "first petitions," because those petitions were circulated in large part during the period fol- lowing the September 19 unlawful refusal to bargain. Whatever loss of majority they showed must be attributed to the Respondent's un- lawful refusal to bargain from September 19 to October 18, 19478 2. The Trial Examiner found that the Respondent violated Section 8 (a) (1) of the Act by circulating, in December 1947, a second set of petitions among the employees in the unit. We do not agree. During the first week of November 1947, the Respondent received the "first petitions" referred to above. The Trial Examiner found, and we agree, that the Respondent in no way sponsored or circulated those petitions. The Respondent forwarded the petitions to the Regional Office of the Board, with a request that the Regional Direc- tor investigate the question of representation. The Regional Director .rejected the petitions as not being in proper form, sent several stand- ard decertification petition forms to the Respondent for the use of the employees, and suggested that the Respondent inform its employees as to the correct procedure to be followed. The Respondent unsuccess- fully protested this suggestion, upon the ground that-regardless of deficiencies of form-the Regional Director, and not management, should handle the matter. Thereupon the Respondent drew up and circulated among its employees a second set of petitions, which resulted in the filing, in January 1948, of a properly prepared decertification petition with the Regional Director. This petition was dismissed by IN. L. R. B. V. Boss Mfg. Co., 107 F. 2d 574 at 577 ( C. A. 7), enfg. 3 N. L. R. B. 400, and 11 N. L. R. B. 432 ; Matter of Delaware -New Jersey Ferry Co., 1 N. L. R. B. 85, petition dismissed on other grounds , 90 F. 2d 520 (C. A. 3) Matter of Rutland Court Owners, Inc., 44 N. L. R. B. 587 , 46 N. L . R. B. 1040, cited by the court in Wallace Corp. v. N. L. R. B., 141 F . 2d 87 ( C. A. 4), aff 'd 323 U. S. 248. 9 Matter of Karp Metal Products Co., Inc., 51 N. L. R. B. 621, enf'd by supplemental decree dated October 23, .1943, cert . denied 322 U. S. 728 ; Matter of Lancaster Foundry Corporation , 82 N. L. R. B . 1255, and cases cited therein. 1400 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD him, on the ground that the charge in the instant case had been filed by the Union on November 12, 1947. The Respondent's circulation of the second petitions was due, in part, to compliance with specific instructions and advice directly given this Respondent by the Regional Director. On the particular facts appearing in the record in this case, we therefore believe that it would not be equitable to make findings of violation of the Act, or to issue an order against the Respondent, based upon the circulation of these "second petitions." 9 The Trial Examiner also found that, although it neither sponsored nor circulated the "first petitions," the Respondent ratified and adopted those petitions by its circulation of the "second petitions," and there- fore that the circulation of the "first petitions" violated Section 8 (a) (1) of he Act. In view of the circumstances under which the "second petitions" were circulated, we reject the Trial Examiner's finding of ratification. Accordingly, we find, contrary to the Trial Examiner, that the Respondent did not violate Section 8 (a) (1) by circulating either the first or the second petitions. 3. The Trial Examiner found that the Respondent violated Section 8 (a) (1) of the Act in that one of its district managers interrogated an employee concerning his and his brother's union affiliation. The interrogation took place in June 1946, more than 1 month before the consent election, which the Union won. Although we have frequently found that such conduct is per se a violation of Section 8 (a) (1),10 this isolated interrogation was separated in point of time from, and was unrelated to, any other conduct considered in this proceeding. While we do not condone even this isolated instance of interrogation, we do not deem it necessary under all the circumstances to find that this Respondent thereby violated the Act 11 THE REMEDY As we have found that the Respondent refused to bargain with the Union on September 19, 1947, November 8, 1947, and thereafter, in violation of Section 8 (a) (5) of the Act, we shall order it to bargain in good faith with the Union. The only way by which the effect of the Respondent's unlawful refusal to bargain can be remedied is to require the Respondent to bargain with the Union at this time, even though the Union may ° Cf. Matter of Armour Fertilizer Works, Inc., 46 N. L. R. B. 629. 10 Matter of Ames Spot Welder Company, Inc., 75 N. L. R. B. 352. 11 Matter of Opelika Textile Mills , Inc., 81 N. L. R. B . 594; Matter of The Pure Oil Company, 75 N. L . R. B. 539. WEST TEXAS UTILITIES COMPANY, INC. 1401 possibly have lost its majority meanwhile. To the extent that the "first" and "second" petitions suggest that the Union may have lost its prior majority, we find that loss to be attributable to the Respond- ent's antecedent unfair labor practices.12 ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, West Texas Utilities Company, Inc., Abilene, Texas, and its officers, agents, suc- cessors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with International Brother- hood of Electrical Workers, Locals No. 898, 920, and 1044, AFL, as the exclusive representative of all employees in the Respondent's transmission, distribution, and service departments in Districts A, B, C, E, F, G, H, J, and -K, including linemen, substation maintenance men, servicemen, appliance servicemen, refrigeration servicemen, ap- prentices, helpers, groundmen, and laborers attached permanently to the crews in the above departments, including truck drivers; but ex- cluding casual and temporary employees and all other laborers, sub- station operators, combination local managers, office, clerical, and technical employees, metermen, patrolmen, and all supervisors as de- fined in the Act ; and (b) Interfering in any other manner with the efforts of Interna- tional Brotherhood of Electrical Workers, Locals No. 898, 920, and 1044, AFL, to bargain collectively on behalf of the employees in the aforesaid bargaining unit. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request, bargain collectively with International Brother- hood of Electrical Workers, Locals No. 898, 920, and 1044, AFL, as the exclusive bargaining representative of all employees in the afore- said bargaining unit, with respect to wages, rates of pay, hours of em- ployment, and other conditions of employment, and, if an understand- ing is reached, embody such understanding in a signed agreement; (b) Post in its district and branch offices in Districts A, B, C, E, F, G, H, J, and K, copies of the notice attached hereto and marked Ap- " Franks Bros. Co. v. N . L. R. B., 321 U . S. 702 ; Matter of Karp Metal Products Co., Inc., supra; Matter of Lancaster Foundry Corporation , supra. 1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD pendix A 13 Copies of said notice, to be furnished by the Regional Director for the Sixteenth Region, shall, after being duly signed by the Respondent's representative, be posted by the Respondent imme^ diately upon receipt thereof and maintained by it for a period of sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material; and (c) Notify the Regional Director for the Sixteenth Region in writ- ing, within ten (10) days from the receipt of this Order, what steps the Respondent has taken to comply herewith. MEMBERS REYNOLDS and GRAY took no hart in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL BARGAIN collectively upon request with INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCALS No. 898, 920, and 1044, AFL, as the exclusive representative of all employees in the bargaining unit described herein with respect to wages, rates of pay, hours of employment, and other conditions of employment, and if an understanding is reached, embody 'such understanding in a signed agreement. The bargaining unit is : All employees in our transmission, distributing, and service departments in Districts A, B, C, E, F, G, H, J, and K, in- cluding linemen, substation maintenance men, servicemen, appliance servicemen, refrigeration servicemen, and includ- ing apprentices, helpers, groundmen, and laborers attached permanently to the crews in the above departments, including truck drivers; but excluding casual and temporary employees and all other laborers, substation operators, combination local managers, office , clerical, and technical employees, metermen, patrolmen, and all supervisors as defined in the Act. WE WILL NOT in any manner interfere with the efforts of IN- TERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCALS No. "In the event that this Order is enforced by decree of a United States Court of Appeals, there shall be inserted before the words : "A DECISION AND ORDER ," the words : "A DECREE OF THE UNITED STATES COURT OF APPEALS ENFORCING." WEST TEXAS UTILITIES COMPANY, INC. - 1403 898, 920, and 1044, AFL, to bargain collectively with us as the ex- clusive representative of the employees in the appropriate unit described above. VEST TEXAS UTILITIES COMPANY, INC., Employer. By ------------------------------------------ (Representative ) ( Title) Dated ------------------------ This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT Everett P. Rhea, Esq., for the General Counsel. Frank Cain, Esq., and Douglas Bergman, Esq., of Irion and Cain, Attorneys at Law, Dallas, Tex., and Mr. T. E. Kugkendall, of Abilene, Tex., for the Respondent. Mr. J. W. Null, of Fort Worth, Tex., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed by International Brotherhood of Electrical Workers, A. F. L., Local Nos. 898, 920, and 1044, herein called the Union, the General Counsel by the Regional Director of the Sixteenth Region (Fort Worth, Texas) for the National Labor Relations Board, herein called respectively, the General Counsel and the Board, issued his complaint dated June 24, 1948, against West Texas Utilities Company, Inc., Abilene, Texas, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (a) 1 and (5) and Section 2 (6) and (7) of the National Labor Relations Act, as amended (Public Law 101, 80th Congress, Chapter 120-1st Session), herein called the Act. Copies of the complaint, together with copies of the amended charge and notice of hearing thereon, were duly served upon the Respondent and the Union. - With respect to the unfair labor practices, the complaint alleged in substance that the Respondent (1) since on and about March 1, 1946, has vilified, dis- paraged, and expressed disapproval of the Union; (2) has interrogated its em- ployees concerning their union affiliations; (3) has urged, persuaded, threatened, and warned its employees to refrain from assisting or becoming members of the Union; and (4) has kept under surveillance the meeting places, meetings, and activities of the Union and the concerted activities of its employees. The complaint then sets forth specific acts of various alleged agents and supervisors of the Respondent which acts are alleged to be violative of Section 8 (a) 1 of the Act. The complaint further alleges that between June 1, 1947, and January 1, 1948, and continuing thereafter, the Respondent, through its named agents, circulated, promoted, and had the employees sign several petitions, which peti- tions on their face appear to be the independent expression by Respondent's employees that they did not want the Union to continue to be their exclusive bargaining agent, but which, in fact, were formulated, originated, sponsored, circulated, and promoted by Respondent. This section of the complaint then sets forth.the names of the alleged agents, and the localities in which the said petitions were circulated. The complaint then states that on or about August 1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 12, 1946, and at all times thereafter, and particularly on various stated dates, the Respondent did and continues to refuse to bargain collectively with the Union as the exclusive bargaining representative of the Respondent's employees, within an appropriate unit, although a majority of the employees in such unit, in an election conducted under the supervision of the Board on August 12, 1946, had designated and selected the Union as their representative for the purpose of collective bargaining, and more particularly by (a) granting many and numerous unilateral wage increases without consultation or discussion with the Union; (b) failing and refusing to post a joint agreement for certain wage increases on or about March 3, 1947,' but instead posted a notice to the effect that the Respondent, alone, had initiated the said wage increases; (c) refusing on or about September 19, 1947, and on November 8, 1947, to meet with the Union for the purpose of negotiating a contract; and (d) by various stated means interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. In its answer duly filed herein, the Respondent admitted certain allegations of the complaint, but denied the commission of any of the alleged unfair labor practices. As an affirmative defense the Respondent alleged that it refused to meet with the Union on or about the latter part of October 1947, until the Union furnished evidence that it had complied with the provisions of the Act relative to the filing of certain required affidavits, and that when advised by the Union that it had complied with said provisions of the Act it agreed to meet with the Union or on about November 8, 1947; that immediately prior to November 8, 1947, the Respondent was presented with various and sundry petitions signed by over 83 percent of the employees of Respondent in the appropriate bargaining unit; that the signers thereof did not want the Union to represent them in negotiations with the Respondent ; that for this reason the Respondent refused to meet further with the Union until the National Labor Relations Board rede- termined by appropriate means whether or not the Union still represented a majority of the employees in the appropriate unit; that it referred said petitions to the Board's Regional Director for the Sixteenth Region, Fort Worth, Texas, and requested such a determination ; that thereafter it was advised by said Director that the petition of said employees was unacceptable, and mailed to Respondent forms and instructions to deliver and convey to said employees advising them that they would have to petition the Board directly in accordance with rules of the Board; that the said forms and instructions were relayed to the employees in accordance with the instructions of the Regional Director ; that Respondent notified its supervisory employees that under no conditions were they either to encourage or discourage the signing of said petitions but to relay the instructions impartially and without bias; that shortly thereafter the Respondent was notified by the Board that a formal petition had been filed by said employees included in the appropriate bargaining unit, but that said petition would not be processed until the unfair labor practice charge, filed by the Union on November 12, 1947, had been disposed of; and that Respondent is ready and willing to resume negotiations with the Union-as soon as the Board redetermines whether or not the Union represents a majority of the employees in said unit. 'The complaint alleges that this incident occurred on or about September 3, 1947. The proof, however , shows that it occurred on or about March 3, 1947. In the opinion of the undersigned this error was cured by the General Counsel's motion to have the complaint conform to the proof with regard to names, dates , and other minor matters , which motion was granted by the undersigned without objection. WEST TEXAS UTILITIES COMPANY, INC. 1405 The Respondent also embodied in its answer a motion to dismiss the complaint in its entirety except that portion thereof that alleged a refusal to bargain with the Union on various dates after May 16, 1947. The motion was predicated on Section 10 (b) of the Act as amended. The motion was denied. Also embodied in its answer was a motion for a bill of particulars. This motion was granted in part, and the General Counsel was instructed to plead with more particularity the names, places, and times with respect to the allegations set forth in paragraph 7 of said complaint. Pursuant to notice, a hearing was held on various days from July 20, 1948, to August 10, 1948, at Abilene, Texas, before the undersigned, the Trial Examiner designated by the Chief Trial Examiner. On the latter date, the undersigned, at the. request of the parties, continued the hearing to September 15, 1948, in order that the testimony of one of Respondent's executives might be secured, said witness having been ill and unable to testify during the course of the hearing from July 20 to August 10, 1948. On September 8, 1948, counsel for the Respondent informed the undersigned that the witness was still too ill to testify and requested that the hearing be closed as of September 15, 1948. On September 10, 1948, the undersigned issued an order to show cause why the hearing herein should not be closed as of September 15, 1948. Shortly there- after, at the request of the General Counsel, the time to respond to the said order to show. cause was extended to September 30, 1948. On September 21, 1948, the parties joined in a stipulation which provided inter alia for the admis- sion of certain documentary evidence, and requested that the hearing herein be closed. On October 1, 1948, the undersigned issued an order closing the hearing as of September 30, 194S. At the hearing herein the General Counsel and the Respondent were repre- sented by counsel, and the Union by a representative. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties.2 At the close of the General Counsel's case, counsel for the Respondent moved to dismiss the complaint for lack of proof.. The undersigned denied the motion in part and granted it in part. The allegations dismissed were in substance as follows: (1) Paragraph 7a, that from on or about March 1, 1946, agents of the Respondent stationed themselves in or near the Cactus Hotel in San Angelo, Texas, for the purpose of illegal surveillance; (2) about March 3, 1946, Miles Turner, as agent of the Respondent, inquired of cer- tain employees concerning union meetings and as to the names of members of the 2 On the fourth day of the hearing herein , July 23, 1948 , counsel for the Respondent filed with the undersigned a motion which in substance was an affidavit of bias and prejudice on the part of the undersigned in his conduct of the hearing and requested that the under- signed withdraw from the hearing in accordance with the provisions of Section 203.37 of the Board Rules and Regulations . The motion was denied on the grounds that it did not state on its face sufficient grounds showing personal bias and prejudice on the part of the undersigned , stating on the record his reasons for denying said motion. His remarks in this regard will be found in the official transcript of the proceedings in Volume IV, dated July 23, 1948, pages 427 to 449, inclusive , to which reference is hereby made. At the request of the undersigned , counsel for the Respondent appealed the above ruling to the Board , and a recess was granted to permit him to perfect his appeal . Appeal from the above ruling was made to the Board on July 26, 1948. On August 5, 1948, the Respondent 's motion for leave to appeal was denied by the Board. The basis of the Board's denial was as follows : "No good reason appearing for consideration of the Trial Examiner 's ruling at this time the Board in accordance with Section 7 (a) of the Administrative Procedure Act, and Sections 203.26 and 203.27 of National Labor Relations Board Rules and Regulations, Series 5, will consider Trial Examiner 's ruling in reviewing the entire record upon exceptions." 1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union ; (3) Paragraph 7e, that on or about August 12, 1946, John A. Hutchison as agent of the Respondent, stated to one of Respondent's employees that since the said employee had been active in organizing the Union, he wondered if said em- ployee could not be just as active in stopping it; (4) paragraph 7h, that on or about September 1, 1947, W. B. May, as agent of the Respondent, told an employee that the said employee would not receive a deserved promotion because he was in the appropriate bargaining unit; (3) and that portion of paragraph Ti 16, which alleges that one Alvin Cadenhead had told certain of the Respondent's employees that he had signed an antiunion petition in order to protect himself from dis- crimination by the company. The parties stipulated at the hearing in reference to paragraph 11 of the complaint that the Respondent and the Union bargained in good faith from August 12, 1946, to March 3, 1947. In view of this stipulation the undersigned dismissed that portion of paragraph 11, which alleged that the Respondent had failed and refused to bargain collectively with the Union on various dates between August 12, 1946, and March 3, 1947. At the conclusion of the receipt of all testimony, counsel for the Respondent again moved to dismiss the complaint in its entirety, primarily on the ground of failure of proof. The motion was taken under advisement by the undersigned and is disposed of as hereafter appears. At the close of the hearing the General Counsel moved to conform the pleadings to the proof as to dates and minor variations. The motion was granted without objection. The parties did not avail themselves of the opportunity to argue orally before the undersigned. The parties were given leave to file proposed findings of fact and conclusions of law and/or briefs. Both the General Counsel and the Respondent availed them- selves of this opportunity 3 The Union filed a short brief.' Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF 'JHF RESPONDENT During the course of the hearing the parties stipulated certain commerce facts. While it is true that the stipulation is quite lengthy and voluminous, nevertheless the undersigned is of the opinion that it should be set forth in its entirety in this report in view of the vast geographical area covered by the Respondent's opera- tions, and their relation to the issues herein. For example, the Respondent's operations are for administration and operational purposes divided into nine (9) geographical districts. Each district being under the supervision of a district manager, and due to the diversity of economic conditions between the various districts, different rules as regard wages, hours, and working conditions prevail. As a result of this situation bargaining negotiations between the parties was made 3 The Respondent submitted proposed findings of fact and conclusions of law. The undersigned rules thereon as follows : He accepts proposals , 1, 2, 3, and 4. As to proposals 5, 6, and 7 he accepts them in part and rejects them in part, as more clearly. shown hereinafter. The undersigned rejects all proposed conclusions of law. The General Counsel also submitted proposed findings of fact and conclusions of law.. The undersigned rules thereon as follows : He accepts proposals 1, 5, 6, 7a, and 8. He accepts in part and rejects in part proposals 2, 3, 4, and 7b. As to the proposed conclusions of law, he accepts 1, 5, 6,. and 8, and rejects in part proposals 2, 3, 4, and 7, as more clearly shown hereinafter- ' Briefs were received from all the parties on or about November 1, 1948. WEST TEXAS UTILITIES COMPANY, INC . 1407 more difficult , and in the opinion of the undersigned , tends to explain some of the issues involved herein. (1) Respondent is a corporation incorporated in the State of Texas on the 30th day of September, 1927. The principal office of the Respondent is located at 1062 North Third Street in the city of Abilene, Texas. That Respondent has assets valued at approximately $45,000,000 and operates throughout an area of 45,000 square miles in 49 counties in the State of Texas, providing electricity, water, and ice service in 166 cities and communities ; that Respondent owns steam-generating stations having a total rated capacity of 63,000 kilowatts, said stations are located in Quanah , Texas, with a rated capacity of 15,000 kilowatts, in San Angelo, Texas, with a rated capacity of 25,000 kilowatts, in Rio Pecos, Texas, with a rated capacity in kilowatts of 18,000, and in Abilene, Texas, with a rated capacity in kilowatts of 12,500. That Respondent has electric transmission lines and industrial and rural dis- tribution lines exclusive of local distribution systems totaling 2,833 miles. The Respondent owns 15 ice-manufacturing plants with a total capacity of 581 tons, 14 of which are operated by electricity and 1 by steam. The Respondent has throughout its entire system approximately 1,100 employees. (2) During the year of 1947, the Respondent had a net output of electric energy of 443,332,170 kilowatt hours with total operating revenues from electricity of $8,039,805.93; a total revenue from water of $417,147.58, and a total revenue from ice of $437,253.94, aggregating a total operating revenue for the year of $9,796 ,207.45. (3) The transmission lines of the Respondent connect with the lines of the following companies : (a) Texas Electric Service Company at seven locations through which firm power and stand-by and emergency services are available to the Respondent and deliverable to it; (b) Southwestern Public Service Company at 3 locations through which a total of 5,000 kilowatts of firm power is furnished to the Respondent. The Respondent is presently negotiating with Southwestern Public Service Company for the purchase of additional firm power and emergency service ; (c) The Lower Colorado River Authority supplies firm power and emergency service which is available at one location to the Respondent; (d) Central Power and Light Company, an affiliated Company , at two loca- tions supply stand -by and emergency power which is available to Respondent and is one of the Companies in the integrated system of Central and Southwest Corporation ; (e) The Public Service Company of Oklahoma , an affiliated Company, has connections with Respondent at two locations which cross the Red River, and through these connections the Respondent delivers firm power and "economy energy" for resale by the purchaser in the State of Oklahoma ; (f) Community Public Service Company is connected with Respondent at three locations. At one of these locations the Respondent sells firm power to Community Public Service Company and at the other two connections purchases from Community Public Service Company firm power and surplus power ; (4) The Respondent's operations are divided into operating districts commonly referred to by alphabetical designation as follows : A, B, with headquarters at Abilene ; C with headquarters at Stamford ; E with headquarters at Quanah ; 1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F with headquarters at Marfa ; G with headquarters at Ballinger ; H with headquarters at McCamey; J with headquarters at Childress ; and K with headquarters at San Angelo. (5) The Respondent also purchases and sells household electrical appliances. The purchases by the Respondent during the year 1947 were in excess of $500,000 of which more than 75 percent was purchased for the resale and were manu- factured at points located outside the State of Texas. (6) Under a contract dated December 30, 1938, effective February 1, 1939, the Company agreed to sell to Southwestern Light and Power Company, then an affiliated Company, 3,500 kilowatts of short term firm power from the Pauline Generating System of the Respondent at a demand charge of $1.15 per kilowatt per month (but not less than $4,025 per month) plus a charge of 2.8 mills per kilowatt hour. The Respondent also agreed to sell to Southwestern, when available at its Pauline station, excess energy, called "economy energy" at 2.8 mills per kilo- watt hour with no demand charge, and to furnish when there was available "emergency power" as defined in the contract at 2.8 mills per kilowatt hour of energy furnished plus certain expenses of the Company incurred in providing such emergency power. Energy is now delivered under the contract at two points, one northeast of Vernon and the other north of Quanah, both in the State of Texas. Public Service Company of Oklahoma, an affiliated Company, has succeeded to the rights and obligations of Southwestern Light and Power Com- pany under the contract. The contract may be terminated by either party at any time upon 60 days' written notice. In 1947, the Company delivered under this contract 5,523,700 kilowatt hours and received from Public Service Company of Oklahoma $35,042. (7) The Respondent supplies electricity to Texas and Pacific Railway Com- pany at points including Cisco, Putnam, Baird, Clyde, Abilene, Merkel, and Trent, all in the State of Texas. The Texas and Pacific Railway Company is engaged at these points in transporting passengers and freight in interstate commerce. The power supplied by Respondent to the said Railway Company is used for the operation of automatic electric block signals and for lighting and operations of stations and other structures on terminal lands. (8) The Respondent supplies electricity to Panhandle and Santa Fe Railway Company at seven locations in the city of San Angelo, Texas, at six stations from McCamey to San Angelo, inclusive, at Sonora, Eldorado, and Bronte, Hamlin, Sylvester, McCaulley, Crowell, and other stations, at each of which points the Railway is engaged in transporting passengers and freight in interstate com- merce. The power so supplied is used for round-house lighting and power for passenger depots, switch yards, freight office, warehouse, and street crossing signals. (9) The Respondent furnishes electricity to Gulf Colorado and Sante Fe 'Railway Company at Menard, Santa Anna, Ballinger, Miles, and Valera, which power is used by said Railway Company for its stations, telegraph lines, and for incidental use at points where it is served by Respondent. This Railway Com- pany is engaged in an interstate commerce trade and passenger business. At San Angelo the Railway uses the terminal facilities of the Panhandle and Santa Fe Railway Company, which receives power from the Respondent. (10) The Respondent supplies electricity to the Fort Worth and Denver City Railway Company at Quanah, Childress, Clarendon, all located in Texas. At WEST TEXAS UTILITIES COMPANY, INC. 1409 each of said points the Railway handles freight and passengers moving in inter- state commerce and the power so supplied by Respondent is used for lighting, water pumps , signals, and other purposes. (11) The Respondent also supplies power at various points to the Missouri- Kansas-Texas Railway Company, the Wichita Valley Railway Company, Santa re Railway Company, Quanah , Acme and Pacific Railway, Abilene Southern Railway Company , and St. Louis -San Francisco Railway Company. (12) The Respondent during the year 1947 and for several years prior to this date has supplied and supplies electrical energy for the operation of oil pipelines to Shell Pipeline Corporation at three points , the Humble Pipeline Company at six points , and Magnolia Pipeline Company at two points , and to Atlantic Pipe- line Company and Texas Pipeline. A trunk line of the Shell Pipeline Corpora- tion runs from Hobbs , New Mexico , to a tank firm at Wink, Texas , where there are two branches which go to Houston, Texas , and to Cushing , Oklahoma. The line going to Houston , Texas, runs through McCamey , Eldorado , and Menard, at., which points there are pumping stations powered by electricity received from the Respondent . At McCamey there is located a telephone line and tele- graph line including a telegraph panel board which are activated by electricity furnished by the Respondent . These communication systems which are essential to the operation of the pipelines are used for dispatching purposes and for other intracompany messages . From McCamey one branch of the line runs to Heald- ton, 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. (13) The Respondent furnishes electric power to United States Post Offices in approximately 40 communities . Such power supplied by Respondent is used in all of these offices for light and in some of them for the operation of stamp canceling machines , sealers, and other auxiliary equipment. (14) The Respondent furnishes electricity to San Angelo Telephone Com- 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. (15) The Respondent furnishes electricity to Western Union Telegraph Com- pany at San Angelo, McCamey , Abilene, Ballinger , Quanah, and seven other cities. (16) The Respondent furnishes electricity which is used for airway beacon No. 4 maintained by the United States Department of Commerce at Shamrock and for beacon lights at the Abilene and Merkel Airports where American Airlines operate planes which fly through Texas on transcontinental schedules , and two eastbound and two westbound planes make daily stops at Abilene that Respond- ent furnishes electric power for the operation of 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. . The Respondent admits that it is engaged in commerce within the meaning of the Act and the undersigned so finds. II. THE ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local Nos. 898, 920, and 1044, A, F. L., are labor organizations admitting to membership employees of the Respondent. 1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IIl. THE ALLEGED UNFAIR LABOR PRACTICES The refusal to bargain collectively with the Union A. The appropriate unit On July 15, 1948, the Union and the Respondent entered into a consent election agreement and agreed therein that the following group of Respondent's em- ployees constituted an appropriate unit for the purposes of collective bargaining : All employees of the Company's transmission, distribution, and service departments in Districts A, B, C, E, G, H, J, and K, including linemen, sub- station maintenance men, service men, and laborers attached permanently to the crews in the above departments and including truck drivers except for casual and temporary employees and all other laborers, substation operators , combination local managers , office, clerical , and technical em- ployees, meter man , patrolman and all supervisory employees having au- thority to hire, promote , discharge , and discipline employees or otherwise effect changes in the status of employees or effectively recommend such action, constitute a unit for the purposes of collective bargaining within the meaning of Section 9, subsection (b) of the Act. The Respondent admits that the said unit is appropriate for the purposes of collective bargaining . Accordingly, the undersigned finds that all employees of the Company's transmission, distributing, and service departments in Districts A, B, C, E, G, H, J, and K, including linemen, substation maintenance men, serv- ice men, and including apprentices, helpers, ground men, and laborers attached permanently to the crews in the above departments and including truck drivers except for casual and temporary employees and all other laborers, substation operators, combination local managers, office, clerical, and technical employees, meter man, patrolman, all supervisory employees having authority to hire, pro- mote, discharge and discipline employees or otherwise effect changes in the status of employees or effectively recommend such action, constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9, subsec- tion (b) of the Act, and that at all times material herein the said unit insured and now insures, to the said employees of the Respondent the full benefit of their right to self-organization and collective bargaining and otherwise effectuates the policies of the Act. B. Representation by the Union of a majority in the appropriate unit At a secret ballot election conducted under the auspices of the Regional Director for the Sixteenth Region, pursuant to the consent election agreement mentioned above, the Union was designated by a majority of the Respondent's employees in the appropriate unit as their representative for the purposes of col- lective bargaining.' Accordingly, on August 12, 1946, the Regional Director certified the Union as the exclusive bargaining representative of the Respondent's employees in the appropriate unit. The Respondent now contends, however, that subsequent to the issuance of the Regional Director's certification, the Union lost its majority status. For the reasons hereinafter stated in Section C, below, the undersigned finds the Respondent's contention to be without merit. Accordingly, the undersigned finds that on August 12, 1946, and at all times thereafter, the Union was, and now is, the duly designated representative of a 5 No objections were filed to the certification of the Regional Director of the 189 valid votes cast , 112 were for the Union and 77 against. WEST TEXAS UTILITIES COMPANY, INC. 1411 majority of the employees in the appropriate unit and that, pursuant to Section 9 (a) of the Act, the Union was, and now is, the exclusive representative of the employees in the said appropriate unit for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and conditions of em- ployment. C. The refusal to bargain collectively Following certification of the Union on August 12, 1946, the parties met on numerous occasions between that date and March 3, 1947, for the purpose of negotiating an agreement. Both parties carried on the negotiations by the med- ium of duly appointed committees. For the most part the union committee consisted of J. W. Null, International Representative of the Union, George Spoon, L. V. Peidford, A. W. Crisman, R. W. Moore,. and A. S. Ray.' The Re- spondent's negotiating committee for the most part at all times material herein was composed of Frank Cain, Esq., attorney for the Respondent, Dan W. Whit- aker, Carl Mahan, H. D. Austin, and T. D. Kuykendall. During the period from August 12, 1946, to March 3, 1947, the Union submitted to the Respondent's representatives proposals which it desired incorporated in the contract and the Respondent's representative submitted proposals it desired. Some of the Union's proposals were acceptable to the Respondent and others were not. Likewise the Union accepted some of the Respondent's proposals and rejected others. In addition a complete survey of the wage structure in all the Respondent's districts included within the appropriate unit was made by special committees appointed by each party. At the hearing the parties stipu- lated that there was no refusal to bargain during this period, and the allegations in the complaint pertinent thereto were dismissed by the undersigned. Hence we are concerned herein solely with the events that occurred from March 3 to November 8, 1947, at which time the Respondent admittedly refused to negotiate further with the Union as the bargaining representative of its employees in the appropriate unit. By March 3, 1947, the negotiating committees were in agreement on many issues, and had tentatively agreed that those issues eventually would be embodied in a written agreement. The principal issues upon which there was disagreement were wages, duration of the contract, and certain working conditions, particu- larly "standby" time. At this meeting the Respondent's committee submitted two proposals, one covering wages, and the second a proposed agreement, on issues other than wages. The major discussion at this meeting was over the proposed wage rates for the various job classifications of the employees within the unit. I+or example, the Respondent in its wage proposal offered a top scale of $1.20, per hour for linemen. The Union demanded $1.25 per hour and increases for certain individual employees, who the union committeemen felt were errone- ously classified, and should be raised to a higher classification with the increased benefits that naturally would follow their reclassification. The Respondent's. committee recognized this situation and agreed to discuss the matter with the Respondent's president, Price Campbell, whose approval was required on any agreement that the committee might reach with the Union. The next day the Respondent's committee met with Campbell, and discussed with him the Union's objections to the wage proposal that they had presented to the Union on March 5, 1947. After meeting with Campbell, the Respondent's committee again met with the Union. At this meeting, no new wage proposal U The record indicates that on occasion other members of the Union participated in the negotiations from time to time. 857829-50-vol. 85-90 1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was presented, but the Respondent did recognize that there were certain in- equities involving about 15 percent of the employees in the unit, and agreed to continue negotiations as to them, and in order to assure the Union of its good faith delivered to the union committee a written agreement to that effect. The Respondent's committee also advised the Union that Campbell would not consent to increase the top rate from $1.20 to $1.25 per hour. The union committee met the evening of March 5, 1947, and after long de- liberation decided to accept the Respondent's offer. The next morning, March 6, 1947, the parties met again. At this meeting, the union committee advised the Respondent that they would accept the wage proposal as submitted, al- though they protested that it was inadequate in view of the increased cost of living and stated that they considered it merely as a "stop gap." For con- venience the proposed agreement is set forth herein below. EXHIBIT A To ABILENE, TEXAS , March 5, 1947. THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS AND NEGOTIATING COMMITTEE GENTLEMEN : We have been in negotiation for several months and are still in disagreement over certain terms of a contemplated contract between us. We are also in disagreement involving a few special men named on the list attached, which men were suggested by the Union and its negotiating com- mittee for a further raise of five cents (50) per hour over and above that already offered by the Company. We are also in disagreement over certain proposed readjustments affecting certain employees named on a list attached hereto. This leaves approximately 15 percent of the employees involved in the unit whose wages are a subject for further negotiation. The Company has heretofore submitted as its proposal, to the employees involved, a wage increase as recommended by the District Managers and District Superin- tendents. The Company realizes that the men are in need of these increases at this time and that many are not members of the Union. Since it appears that the Company and the Union are in agreement over the wage increases as offered by the Company except as above mentioned ; therefore, pending fur- ther negotiations regarding these disagreements between the Company and the Union, the Company desires to close the issue over wages for the employees involved in this unit for the ensuing year and put the increases offered by the Company into effect immediately, along with the right of the Company to grant further merit increases without discrimination. The Company wilt continue negotiations over the remaining issues between the Company and the Union. Upon your approval of his offer by your signature at the place indicated below, the Company will put the increases into effect. Trusting we may have your cooperation in this matter, we are WEST TEXAS UTILITIES COMPANY NEGOTIATING COMMITTEE. By (Signed) DAN. W. WHITAKER. (Signed) H. D. AUSTIN. Approved by: (Signed) CARL MAHAN. (Signed) FRANK CAIN. (Signed) T. E. KUYKENDALL. WEST TEXAS UTILITIES COMPANY, INC. 1413 After having informed the Respondent's committee that they would accept the wage proposal, the union committee then objected to certain language em- bodied therein, to wit : the first sentence of the second paragraph, "the Company realizes that the men are in need of these increases at this time and that many are not members of the Union," and the statement that the Company would continue to "grant further merit increases without discrimin:,,tion." They con- tended that these statements were detrimental to the Union, particularly the statement of the Respondent that it would continue to grant "merit increases," in that this was a bargainable issue and not one for unilateral action by the Respondent. The Respondent's committee refused to eliminate the objectionable phraseology from the proposal. After considerable argument between the par- ties the union committee finally. acquiesced to their remaining in the proposal. Both committees then signed the agreement. After the agreement as to wages was signed the Respondent dispatched to each of its districts mimeographed copies thereof. The copies prepared by the Respondent contained thereon only the names of its bargaining committee as signatories thereto. The names of the members of the union committee who signed the proposal were not included thereon. According to custom the mimeo- graphed copies of the agreement were posted on the bulletin boards in each of the Respondent 's districts. On the same date, March 6, 1947, the union committee drafted a letter relative to the agreement reached between the parties as to wages and mailed it to each employee in the unit, both affiliated and unaffiliated. In view of the seriousness of the General Counsel's contentions as regards the Respondent's action in posting mimeographed copies of the agreement on wages without the names of the union committee thereon on'its bulletin boards throughout its districts, the undersigned is convinced that the letter referred to above should likewise be set forth herein. It was as follows : INTERNATIONAL BROTHERHOOD OF ELECTRICAL W ORKERS (Address of Writer) LABOR TEMPLE, ABILENE, TEXAS, March 6, 1947. To all employees of West Texas Utilities Company in the bargaining unit for which the IBEW was certified by the National Labor Relations Board: DEAR SIR : Over a period of time the Union's Bargaining Committee has contended for a wage increase on the basis of both individual as well as classification adjustments. While we have not completed this task, we have nevertheless completed a portion of it, and have carried out our obligation faithfully in behalf of all employees, affiliated and unaffiliated alike. Although the negotiations on wages have not been concluded, they have progressed to a point where both the Company and the Union have au- thorized hourly increases to become effective immediately, with certain stipulations. So that you will know exactly what your earnings will be, based on the continuation of 44 hours per week of work, 40 hours at straight time, 4 hours overtime, as you now have in effect, you are advised that your name, classi- fication, old rate, new rate and last date of entering service, appears on the lists of employees furnished by the Company as follows : 1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD These lists are on file with the following Union officials and may be in- spected by you at any time : Local Union B-898, A. S. Ray, 1715 Preusser, San Angelo. Local Union B-920, A. W. Crisman, 1825 Orange, Abilene. Local Union B-1044, George Spoon , 711 W . 9th, Quanah. While the individual increases which the Union has secured are not all that the Union would have liked for them to be, they are in many eases substantial , in other cases far more than have ever been realized in the past, and in general reflect the results of friendly collective bargaining, and demonstrates what can be accomplished by a united effort. Negotiations on the agreement proper, including wages , are still in progress and will be carried on to completion by your committee. Respectfully, George Spoon , R. W. Moore, H . O. Anderson , B. J. Behringer, R. L. Adams, A. W. Crisman, V. B. Frank, L. V. Piedfort, A. S. Ray, J. W. Null. The only important issue discussed by the committees during the negotiations on March 3, 4, and 5, 1947, was wages. The other issues in dispute were not dis- cussed. Inasmuch as the parties were so near agreement on the other issues, particularly as regards working conditions , the union committee became per- turbed, and Null suggested to Cain that they call in a conciliator from the Con- ciliation Service to help the parties reach an early agreement . He suggested, that Cain join with him in a telegram to the Conciliation Service for that purpose. Cain declined to do this, but had no objection to Null doing so. Null then wired for a conciliator and was later informed by the Conciliation Service that a Mr. T. F. Morrow had been assigned to the case. The General Counsel contends that the wage increases agreed upon by the parties on March 5, 1947 , was in fact not the result of genuine collective bargain- ing between the parties , but was actually a unilateral action on the part of the Respondent , in that the Union was forced to accept its wage proposal on a "take it or leave it" basis. That is, the General Counsel argues , the Respondent, in effect, told the union committee that regardless of whether they accepted it or not, it intended to put the wage increase into effect immediately. In support of this contention , the General Counsel relies upon the testimony of J. W. Null, and other members of the union 's bargaining committee , particularly that of Spoon and Crisman. He also relies upon the posting of the letter announcing the wage increases by the Respondent in its various districts , particularly because it did not set forth therein the names of the members of the union bargaining committee who also signed the original document. At the hearing, the General Counsel contended that the alleged conduct de- scribed above, constituted violation of Section 8 (a) (1) and (5) of the Act. He also makes the same contention in his proposed findings of fact and conclu- sions of law. Atfer careful consideration of the testimony, both oral and documentary, adduced at the hearing in this regard , the undersigned is convinced and finds that the Respondent , by posting the letter described above, did not violate Section 8 (a) (1) and ( 5) of the Act as alleged in the complaint . The undersigned's. finding in this regard is predicated on the following factors: ( 1) the testimony of the witnesses called by both the General Counsel and the Respondent shows. that there was no definite agreement that the signed agreement was to be posted by either party. Null 's testimony in this regard clearly indicates that no such WEST TEXAS UTILITIES COMPANY, INC. 1415 agreement was made. An examination of his testimony shows that it was "assumed" by members of the union committee that such action would be taken ; (2) an examination of the above letter shows that it was addressed to the Union, .and there is nothing in its contents of misleading or disparaging nature. More- over, it was signed by the members of the union committee, and they were well aware of its contents at that time; and (3) on the very same day that the Respond- ent posted the letter, the union committee sent to each employee in the unit, affil- iated and unaffiliated alike, a similar letter. An examination of this letter, which is set forth above, clearly shows that the members of the committee, at least at that time, had no complaint over the language of the letter signed by the parties on March 5, or that it be published with the names of the members of both committees attached thereto. Moreover, the letter published by the union com- mittee makes no mention of the names of the Respondent's committee. In such .a state of the record, it is clear that the only possible grounds upon which a find- ing against the Respondent in this regard could be made, would be either on sur- mise or assumption. It is well settled that findings of fact cannot be predicated -on surmise and assumption, but must be made on reliable, probative, and sub- stantial evidence. Having found as above, the undersigned accordingly will recommend that this allegation in the complaint be dismissed! On March 25, 1947, Morrow advised Null that he had arranged for a meeting between the parties on April 3, 1947. On April 3, the union committee sub- mitted a new proposed agreement, and also gave to the conciliator a list of the issues that were in dispute between the parties. While no definite agreement -on all the issues was reached by the parties during the meetings on April 3, 4, and 5. both sides felt that much had been accomplished and that the issues that were still in dispute were not insurmountable. Morrow, the conciliator, was forced to withdraw from the negotiations on April 5, due to a previous engagement. The parties agreed that they would hold no further meetings until he was available. The next meetings of the negotiating committees were on May 16 and 17. Morrow, the conciliator, was also present. At the meeting on May 16, the Respondent's committee presented a proposed contract. From the testimony adduced at the hearing from witnesses called by both the General Counsel and the Respondent, it is clear that in the main, the parties were in agreement on the proposals set forth in the proposed contract, except as to a few minor matters. An examination of the proposal shows that no provision was made for wages, however, it being understood by the parties that wages had been settled by the signing of the letter of March 6, 1947. As to the issue in respect to the duration of the contract, the testimony in the record in this regard is confusing and somewhat vague. However, there is sub- stantial evidence to the effect that it was to be for 1 year from the date of signing and the undersigned so finds. At the meeting on May 16, the parties dis- cussed the provisions of the proposal, and some few minor changes were agreed upon. On the night of the 16th, the union committee discussed the issue in respect to the length of the proposed contract and decided to accept a 1-year contract. At the meeting on the next day, May 17, they so informed the Re- spondent's committee. Shortly after formally notifying the Respondent's committee of their decision to accept the agreement, Cain, counsel for the Re- spondent, requested a private meeting with Null. Null agreed, and they left the meeting and went to another room. During the course of the conversation T The paragraphs in the complaint pertinent to the above issues are as follows : 7 f, and. a portion of paragraph 11, on page 1.3, thereof. 1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD that ensued, Cain told Null that he was aware of the fact that the wage scale was inadequate, but that it was the best the Respondent could do at that time, because of the fact that the Respondent was undergoing a reorganization under the super- vision of the Securities Exchange Commission, and its obligation had been temporarily frozen. His argument was that if wages were increased, it would correspondingly increase the Respondent's obligations, and thus jeopardize the entire reorganization program. He then told Null that he thought the reorgani- zation program would be completed in a few months, probably sometime in the early fall, and that at that time he was sure that he could persuade the Re- spondent to grant an over-all wage increase for the employees in the unit. Cain then pointed out to Null that if the parties signed the proposed contract, then the wages for the employees would be frozen for at least a year. He then sug- gested that the parties hold in abeyance the actual signing of the contract until the Respondent's reorganization was completed. He also requested Null to arrange a meeting with Ingram, international vice president of the Union, so that all three could discuss his proposition. Null agreed to arrange such a meeting, but not until the full union committee had been informed of Cain's proposal. Cain agreed that this should be done, and the full committee was then called by Null to meet with him and Cain. Cain explained his proposition to them, and set forth his reasons for so doing in substantially the same form he used when he discussed the matter privately with Null. The committee discussed the proposition amongst themselves, and agreed to accept it. Null then arranged a meeting with Ingram, Cain, and himself. On May 19, Cain inet with Null and Ingram in the latter's office in Fort Worth, Texas. As a result of this meeting, Null and Ingram agreed to accept Cain's proposal, providing the provision for "standby" time as set forth in the contract to be put into effect immediately. Cain agreed to do this, and advised them that he would request the Respondent to do so at once by letter and that he would send a copy of it to Ingram. A few weeks later, Null received complaints from employees in the unit that the Respondent had not yet posted a letter or notice on its bulletin boards relative to the agreed-upon "standby" policy. In the interim, neither Null nor Ingram had received a copy of the letter Cain had agreed to send the Respondent in this regard. Null then contacted Cain and protested the Respondent's failure to carry out Cain's agreement. Cain told Null that he had written such a letter to the Respondent, and that as far as he knew, the agreement as to "standby" time was put into effect . He then suggested that Null see Shroeder , Respondent's vice president in charge of operations , and discuss the matter with him. Null called Shroeder on June 5, and was advised that a "standby " letter had been drafted in accordance with Cain's suggestion but that it had not yet been sent out to the districts for the reason that it had to be first approved by Price Camp- bell, the Respondent's president, who at the time was out of the city. Sometime later the Respondent's district managers were sent the following letter. MAY 20, 1947. To the District Manager, District DEAR SIR : During the negotiations in which we have heretofore engaged we agreed on a "Standby" arrangement for employees, which agreement was as follows : "Standby "(a) Employees who are specifically requested to standby for duty after regular working hours shall be paid for two regular hours for such duty WEST TEXAS UTILITIES COMPANY, INC. 1417 on week days and shall be paid for five regular hours for such duty on any Sunday or holiday, the same being in addition to all time actually worked during that work day. (b) Week day `standby' periods shall be from 5 p. m. to 8 a. in. and Sunday and holiday standby periods shall be from 8 a . in. to 8 a. m. of the succeeding day." Pending further negotiations and without in any manner affecting the rights of either the union or the company in regard to future collective bargaining, it is agreed that we will pay for "Standby " time when it is necessary upon the above basis. This is applicable in instances where "Standby" is authorized or used, WEST TEXAS UTILITIES COMPANY. By ------------------------------- According to Null's testimony, Cain agreed to submit the "standby" letter to the Union before notifying the employees in the unit that the agreed policy on "standby" time was to be placed in effect. Null also testified that it was agreed between Cain , Ingram, and him that the letter notifying the employees of the "standby" policy was to be a joint letter signed by both negotiating committees. Cain admitted that the Union was to be given a copy of the "standby" letter before it was to be put into effect . His testimony in this regard was as follows : Q. Was there any conversation between you and Mr . Null and Mr . Ingram by which you proposed to put into effect that provision of the contract with reference to stand-by time pending further negotiations of the committees? A. Yes, as a matter of fact, I had mentioned that, the same thing to Mr. Null and his committee before I left Abilene , and even-I 'm sure I had even mentioned it before that because I told Mr. Null that I was concerned, and Mr. Ingram too, about this portal -to-portal pay as had been adjudicated at that time, and I was afraid of some disgruntled employee using that as a basis of a lawsuit, and I wanted a clear-cut definition, which it seemed that we pretty well had in our contract about what constituted standby time, and that I said to them, I said, "Now, I'd like to go ahead and put that standby time into force and effect. I think the Company has more or less of a stand-by time policy, but it certainly , if it is not very clear -cut-and I would like to go ahead and put that in and I-" Mr. Ingram and Mr. Null said that was mutually agreeable, and Ingram says, "Well, now, I'll want to have a letter to that," and Mr. Null and I said, "We'll give you a letter and submit it to you on the thing and then inform the employees that it will be put into effect." [Emphasis supplied.] The General Counsel at the bearing and in his brief strenuously contends that the Respondent 's action in posting the above "standby " letter was in complete disregard of Cain's agreement with Null and Ingram that the posting of the "standby" policy (as set forth in the agreement of May 16), was to be a joint affair, and not unilateral , as the above letter would indicate . The General Counsel further contends that such action on the part of the Respondent was done for the purpose of belittling the Union in the eyes of its employees in the unit, and was thus a violation of Section 8 (1) and (5) of the original Act and of Section 8 (a) (1) and (5) of the Act as amended, in that it was in effect the granting of a unilateral wage increase. The undersigned is convinced that the only reasonable interpretation that can be gathered from the testimony of Null and Cain , is that the posting of the letter 1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was to be a joint venture. Cain's testimony, though extremely vague in this regard, nevertheless so indicates. Moreover, Null's verison of what transpired at the time this matter was discussed is corroborated by that of Cain for the most part. Again Cain did not specifically deny Null's testimony that the posting of the letter was to be a joint venture. Under such circumstances, and upon the-record as a whole, the undersigned is convinced, and finds, that the Respondent violated its agreement with the Union by unilaterally posting the "standby" letter. Whether or not such conduct is an independent violation of Section 8 (a) 5 of the Act is another matter. The undersigned cannot accept the General Counsel's contention that by such conduct the Respondent violated Section 8 (a) (5) of the Act, in that such conduct, in effect, is really granting a unilateral wage increase. It must be remembered that the "standby" policy, as put into effect by the Respondent, was the result of bargaining negotiations between the parties, and it was agreed between them that it should go into effect prior to the consummation of the full agreement reached May 16, 1947. Such conduct on the part of the Respondent is not "unilateral" action, as the term is used in Board parlance. Unilateral action as the undersigned understands the phrase, means putting some bargaining issue into effect independent of, and without consultation or discussion with, the bargaining representative. Such is not the situation herein. Consequently the undersigned rejects the General •Counsel's contention in this regard. Null was not satisfied with the method used by the Respondent in putting the "standby" agreement into effect. He felt that the Union had been ignored as the certified bargaining representative of the employees in the unit, in that the Union was not permitted to see or sign the agreement. In addition, he had re- ,ceived complaints from a few members of the union bargaining committee in this regard, particularly George Spoon, from the local at Qnanah, Texas. In view of the foregoing incidents Null decided to again call for assistance from the Conciliation Service. This he did on July 28, 1947. As a result of his action in this regard a conciliator was appointed to assist the parties to resume bar- -gaining negotiations. Majure, the conciliator assigned to the task, contacted Cain on several occasions during August in order to arrange a meeting between the parties, but was unable to get Cain to agree to a definite date for such a meeting. On September 8, Null called Cain and was advised by him that the Respondent would meet with the union committee on September 30. This was not satisfactory to Null and he again got in touch with Conciliator Majure in an effort to arrange a meeting for an earlier date. Majure got in touch with Cain but was unable to arrange a meeting for an earlier date. On September 15, Null called Cain in this regard but accomplished nothing. In fact, Cain talked very discouragingly in regard to any further meetings be- tween the parties. On September 19, Cain called Null and informed him that the Respondent would not meet again with the Union until it was in compliance with Section 9 (f), (g), and (h) of the Act. Null protested the Respondent's position in this regard but to no avail. There were no further conversations between Cain and Null until October 18. At that time Null informed Cain that the Union was in compliance with Sec- tion 9 (f), (g), and (h) of the Act, and that the ruling of General Counsel Denham as regards the application of the foregoing sections of the Act to the American Federation of Labor, with whom the Union was affiliated, had been WEST TEXAS UTILITIES COMPANY, INC. 1419 reversed by the Board 8 and requested that bargaining negotiations be resumed between the parties . Null also suggested a meeting for October 28 or 29, and asked Cain to inform Ingram, international vice president , if the suggested dates were satisfactory . On October 24, Cain, called Ingram , and advised that the Respondent would meet with the Union on November 7. However , on October 30, Cain wrote Ingram and advised him that due to pressing legal business he would be unable to meet with the Union until on or about November 10. Null later called Cain and accepted that date . On November 8, Cain called Null and advised him that he had received a letter from the Respondent advising him that it would not meet again with the Union until the Board had acted on certain petitions which in effect were requests from numerous employees to the Respond- ent to cease negotiations with the Union as the bargaining representative for employees within the unit. On November 12, the Union filed the original charge herein , wherein it alleged that the Respondent had violated Section 8 (a) (1) and (5 ) of the Act. The Petitions The parties admit that two sets of petitions were circulated among the em- ployees in the appropriate unit. The first set was circulated throughout the various districts of the Respondent on various dates during August, September, and October, 1947. The second set was circulated during the latter part of November and in December 1947. The Respondent emphatically denies any knowledge of the circulation of the first set of petitions, but admits that it drafted, and circulated, the second set of petitions among its employees, but contends that it did so upon the advice and instruction of the Regional Director for the Sixteenth Region. On the other hand, the General Counsel alleged in his complaint, and contended at the hearing, that the Respondent formulated, originated, sponsored, circulated, promoted, and directed both sets of petitions. In view of the voluminous testimony in this regard, due in most part to the numerous districts set up by the Respondent for operational purposes, the under- signed .is convinced that as a matter of convenience separate sections for each, set of petitions should be set forth in this report. ' The first petitions The so-called first petitions first appeared among the employees in the unit sometime during the latter part of August and the early part of September 1947. They were circulated in all the districts and the branch offices located therein,. except in District K, located in San Angelo, Texas.' The method of procedure in the circulation of the petitions was similar in each district. With one or two ex- ceptions, the circulators were "service" men." Most prominent in circulating the petitions were J. C. Miller in District C, Stamford, Texas ; Bonnie Suddreth and Kirby Dawkins, in District II, McCamey, Texas ; Sim Ledford, in District G, Bal- 8 See In the Matter of Northern Virginia Broadcasters, Inc., Radio Station WARL, and' Local Union No. 1215, International Brotherhood of Electrical Workers (AFL), 75• N. L. R. B. 11. ° The record is clear that the employees in the San Angelo district were strongly organ- ized, and for the most part strong adherents of the Union. 10 These employees were included within the unit. Their duties required them to travel- throughout the various districts in company -owned cars for the purpose of servicing equip-- ment both for the Respondent and its customers. 1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD linger, Texas ; Hollis Reavis, in District J, Childress, Texas ; and Alvin Caden- head, in District E, Quanah, Texas. Of the foregoing, all were service men, with the exception of Ledford and Suddreth. Ledford was a meter man and as such was not in the bargaining unit. Suddreth was a lineman and included in the unit. Others who circulated petitions, but who did not play as prominent a part as.the above, were Harry Long, district storekeeper, and R. E. Ruble, power salesman at McCamey, District H, Ray Garrett, appliance salesman at Cisco, Texas, District A, B, Abilene, Texas. All of the last named were excluded from the bargaining unit. They circulators, all of whom, as pointed out above, were supplied with com- pany cars and their duties required them to travel to all points of the various dis- tricts. Their solicitation for signatures of employees within the unit for the most part was made during working hours on company time and property. Some few employees were solicited at their homes after working hours. In such in- stances, the solicitors used the company cars assigned them. Their approach to the employees for their signatures was for the most part similar in each district. In explaining the purpose of the. petitions each in substance told the employees that it was to get rid of the Union, or that it was not necessary to have the Union to represent them in their dealings with the company, and in many instances, the argument was that the Union had had a year to negotiate a contract with the Re- spondent and to date had failed to do so. A number of the employees signed when first approached, but there were a substantial number who refused. In such in- stances, follow-up calls were made on these employees and in this manner a few additional signatures were secured. When the solicitors had finished interview- ing the employees in the districts canvassed, the signed petitions were either delivered to the district offices or mailed direct to the home office in Abilene, Texas. For example, J. C. Miller delivered the petition he circulated to Dilling- ham, district manager at McCamey. Reavis and Cadenhead mailed theirs direct to the home office. Ledford testified, and the undersigned finds, that he mailed his to an attorney in Abilene." The language used in the preamble of the petition was substantially the same in each district. For example, the petitions circulated at Abilene District A, B, and at Ballinger, District G, were identical except for the alphabetic designation of the District. They read as follows : We, the undersigned employes of the West Texas Utilities Company, Dis- trict "A", do hereby declare that we do not wish to be represented by the International Brotherhood of Electrical Workers or through any other local or union and are hereby petitioning West Texas Utilities Company to with- draw from any contract negotiations between the Company and the Interna- tional Brotherhood of Electrical Workers pertaining to District "A" since we are satisfied with the relations between the company and ourselves. Signed: (names of employees in the unit). Sim Ledford testified that he personally drafted the petition, circulated in the Ballinger District without the assistance of any person, after first discussing its purpose with some employees of the Respondent at Santa Anna, Texas. He could not recall, however, their names at the time of the hearing. The purpose of the petition,. according to Ledford, was to get rid of the Union and stop dis- sension among the employees. After having drafted the petition, he had his son type it. He further testified that after he had circulated the petition, and 11 Ledford's part in the circulation of the petitions will be set forth hereinafter. WEST TEXAS UTILITIES COMPANY, INC. 1421 secured the signatures thereon, he put it in an envelope without any letter or accompanying note attached and mailed it to the law firm of McMahon, Springer, and Smart, with offices in the West Texas Utilities Company's building, Abilene, Texas. His reason for mailing it to this law firm was that in 1941 and 1942 he had dealt with Springer who at that time was active as attorney for a company union composed of the Respondent's employees. At that time, Ledford was employed at Cisco, Texas. He further testified that he never received an acknowledgment of the receipt of the petitions from either Springer or any other member of the firm. Another reason advanced by him for sending the petition to Springer was that he knew it would get to the right "parties." On cross-examination he was queried in regard to the language used in the petition, and in general as regards the parlance used in every day union-management relations. Even a cursory examination of his testimony both on direct and cross-examination reveals his lack of understanding of the language used in the petition, and the purport thereof 12 Moreover, from his demeanor on the stand, he impressed the undersigned as an evasive and untruthful witness. In such a state of the record the undersigned is convinced that Ledford's testimony was so palpably false that no credence whatsoever can be given it. Accordingly, the undersigned finds that Ledford's account of the circumstances surrounding the circulation of the first petition in District G, Ballinger, Texas, was not a true account thereof, but pure fabrication. Accordingly, the undersigned rejects his testimony in its entirety. The testimony of Miller, Dawkins, Reavis, and others who circulated the first petition, as regards the origin and draftsmanship thereof, while somewhat hazy and evasive, nevertheless cannot be placed in the same category as that of Led- ford. For reasons which will be set forth hereinafter under that section of this report dealing with the second petition, the undersigned is convinced that it is unnecessary to make a finding at this time as to their credibility and activities as regards the events surrounding the initiating and sponsorship of the first petition. At the hearing the Respondent called a number of its branch and district manager. to testify in its behalf ; with one exception all denied having had any knowledge of the circulation of the first petition. The single exception was W. R. Weaver, branch manager at Spur, Texas. He admitted that he knew that the first petitions were being circulated, in fact, he testified that he informed the employees at Spur, that ". ' . . A man was bringing a paper up there for them to read and to use their own judgment." He further testified, in substance, that shortly thereafter J. C. Miller came to Spur and asked his permission to talk to the employees, and that he had some papers with him. He gave him per- mission to do so and instructed the employees to go into the back room with Miller. Shortly thereafter, in discussing the first petition with two employees, Dale and Finch, he told them "to use their own judgment" about signing it. The solicitors having finished their task forwarded the petitions, to Abilene. It was from this point that the Respondent, by Dan Whitaker, forwarded the petitions to Cain, who then forwarded them, in the name of. the Respondent, to the Board's Regional Director at Fort Worth. Cain in the processing thereof sent the Director a formal document which in substance is a petition for a de- 'a Even counsel for the Respondent conceded at the hearing that Ledford was not familiar with labor relations parlance in the following language : ". . . Mr. Rhea is a lawyer, a man who has had great experience with these labor matters and here is a man who doesn ' t know the difference between a bargaining unit and a baseball park. As far as the record shows . . . . 1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD certification election as provided for in Section 9 (c) (1) (A) (ii) of the Act. For convenience, a copy of this petition is attached hereto and marked as Ap- pendix A. The petitions filed by Cain were given due consideration by the said Regional Director. Shortly after they were filed, Cain met with the Regional Director and the Chief Legal Officer at the Board's offices in Forth Worth. At that time he was informed that they were faulty as petitions for decertification because they did not set forth therein the name of either an individual or a labor or- ganization as the proposed bargaining agent or representative of the employees who desired such an election. Consequently the petitions were returned to the Respondent by the Regional Director. The second petitions Shortly after Cain's conference with the Board's officials, he drafted several petitions for the employees to sign, and mailed them to the Respondent's main office in Abilene, Texas. From there they were sent to each of the Respondent's district managers, with instructions as to how they were to proceed in securing the signatures of its employees thereon. One of the petitions drafted by Cain is set forth herein-below. STAMFORD , TEXAS, December 6, 1947. DISTRICT "0." We, each for himself, as an employee of the West Texas Utilities Com- pany, do hereby declare that the International Brotherhood of Electrical Workers is not now authorized by us to represent us, either singly or col- lectively, in any negotiations with our employer. We do hereby petition the National Labor Relations Board to take cognizion of this fact in any pro- ceedings necessary for their formal action. We hereby authorize J. C. Miller to act for us in this regard with full authority to file any supplemental information or petition with the Board for its final definite action and notice to the Union of their elimination or formal decertification as brought about by the employees' acts, properly confirmed by the Labor Board, all as required and made mandatory by the new labor laws. ( Signed ) OSCAR WHITAKER. ( Signed ) OTIS FINCH. ( Signed ) A. E. DALE. (Signed) THOMSE B. SMITH. The Respondent admits that it initiated, sponsored, and circulated among its employees the so-called second petitions. With one or two exceptions they were -circulated by the same individuals who circulated the first, under the direct supervision and instruction of the Respondent's district managers. Typical of the procedure followed by the various district managers, was that of K. K. Francis of Stamford, Texas, and H. H. Batjer, at San Angelo, Texas. Francis called into his office J. C. Miller, who had circulated the first petitions in the Stamford district, and told him that the first petitions were defective and that it was necessary to secure signatures to the second petitions. Francis also told Miller that the second petitions were to "verify" the first. According to Miller his name was typed in on the second petition before he received it from Francis. The purpose of this was, according to what Francis told Miller, to inform the- WEST TEXAS UTILITIES COMPANY, INC. 1423 employees that he had been appointed to act as their agent for the purpose of securing approval for a decertification election to be conducted by the Board. Francis also openly and actively circulated the second petitions among the em- ployees in the various branch offices under his supervision. Actively assisting him in his activities was Russell Crownover, one of his assistants. When pre- senting the petitions to the employees for their consideration Francis informed them that similar petitions had been circulated in other districts, and that a great number of the employees in the unit had signed them. In order to em- phasize and buttress his remarks, he presented to the employees photostatic copies of petitions which had been signed in other districts. He particularly emphasized the petitions from the Quanah, Texas, district, and significantly pointed out the name of George Spoon as one of the signatories thereto, re- minding them at the time that Spoon had been a member of the union negotiating committee. In addition to these activities, Francis endeavored to secure the .services of R. W. Moore, a lineman, to circulate the petition among the line crew. Moore was an old employee, and admittedly very popular with his coworkers. In addition he too was a member of the union's negotiating committee. Typical of Francis' approach to the employees at the time he presented the petitions for their consideration is found in the testimony of Otis Finch, a witness originally called by the General Counsel but later called by the Respondent as one of its witness-in-chief. On direct examination as a witness for the Re- spondent he testified as follows : Q. I will ask you this now: Just explain to the Examiner or describe the way that this-that the petition-and the way that Mr. Francis pre- sented it and how it was signed and whether it was given back to Mr. Francis. Just tell us just exactly what that was. A. He came in and Mr. Weaver told us that Mr. Francis wanted to see us. We came in just about 12: 00 o'clock. We walked to the back of the office. There were some new stoves and ranges in the crates sitting in the back and Mr. Francis was leaning on one and had those petitions laying on this crate and we walked back to him and he told us that he had something he wanted us to read and he handed it to me first. I read it over and he asked me during this time did Miller, J. C. Miller, present me with a petition. I told him, "Yes," that I didn't sign it because I didn't understand it, because Mr. Miller would not explain it to me. Mr. Francis told me in plain words that it was to do away with the Union from the Company, so I read the petition over and then handed it to Mr. Dale. He read it over. [Emphasis supplied.] Then Mr. Francis told us to go and eat lunch and take this petition with us and read it over and discuss it between ourselves, if we wished, but we did not discuss it between ourselves. I had taken it home and read it, taken it back to Mr. Dale and we returned to the office. I signed it and Mr. Dale signed it. Also typical of the Respondent's activity in circulating the second petitions, and its concern in regard to the failure of the first petitions to persuade the Board to order a decertification election thereon, is exemplified in the testimony of K. K. Francis himself. Q. All right. Now then, I will ask you, Mr. Francis, when you received this document, General Counsel's Exhibit 27 from Dan Whitaker, what did he tell you to do with it, or what was the instructions with reference to it? 1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. Well, he said that there have been some petitions sent in from that district and, by some employees and that they were not technically correct in some manner since they didn ' t have a stipulated man that signed them as a representative and that it would have to be done over or handled- Q. Would have to be done over? A. Yes. Q. All right . Did he give you any instructions or was there any statement made by him :.bout how you should handle the petition? A. No, he said that they weren't in accordance of form and that they had agreed that they had to have a man to represent the bunch and I said, "Well, I don't know about these petitions you are talking about or who you are talking about," and he said, "Well I can furnish some photostatic copies of some names." And I said, "Well, I would like to have them." Q. You said you would like to have them? A. Yes sir. Q. Now, where were you and Whitaker when he gave you this second petition, General Counsel's Exhibit 27? A. I was in my office. Q. In Stamford? A. In Stamford. Q. All right. After you had requested Mr. Whitaker to send you some photostatic copies, did you later receive them? A. I did. Q. About how long after that? A. Well- Q. Approximately. A. Pretty shortly, I would say a day or two. Q. A day or two? A. Uh Huh. Q. All right. Now then, Mr. Francis, what did you do with the petition that Dan Whitaker gave you, General Counsel's 27? A. What did I do with them? Q. Yes, what did you do with them? A. Well Q. Did you give it to anybody? A. Yes, I gave one to Mr. Miller. Q. Is that J. C. Miller? A. J. C. Miller and offered to give one to R. W. Moore. Q. What did you tell Mr. Miller when you gave him the petition? A. I tried to explain to him, as Mr. Whitaker had to me that they were not true to form since one man hadn't been set out as representative of that bunch that had signed. Q. All right, what did you ask him to do with the petition? A. I told him to take it before the bunch again and let them do what they wanted to . [Emphasis supplied.] That the respondent's procedure in circulating the second petitions followed the pattern described above in the Stamford district is clearly indicated by the following testimony of H. H. Batjer, the Respondent's district manager at San Angelo, Texas. Q. When was the first time that you ever saw a petition like General Counsel's 42? WEST TEXAS UTILITIES COMPANY, INC. 1425 A. It was late last fall. I am not sure of the date, unless it shows there, November ; late in November, yes sir. Q. Who talked to you about this petition? A. Mr. Dan Whitaker. Q. He talked to you in Abilene or down there in your office? A. I believe in my office. Q. What did he tell you? A. He told me that a number of the petitions had been presented to the Labor Relations Board in Fort Worth sometime previously, that they appar- ently were not in correct form and that another petition had been prepared in the suggested form and was being circulated over most of the areas of the company. Q. Did you tell him you knew anything about the petitions that had been previously circulated by the employees? A. No sir. Q. Or by anybody else? A. No sir. Q. Did you know anything about them? A. I did not. Q. Is that the first time you ever heard about any circulation of any petitions at all. A. Yes sir. Q. Well, what did you do with the petition? A. Well, he didn't have a copy of it with him at the time. He told me about it and I told him if they were being presented over the company, I would like for the men in District K, to have an opportunity to sign it. I asked him for a copy of it which he didn't have. He mailed it to me the next day. Q. Then what did you do with it? A. Had that petition that you just handed me prepared from it. Q. Then what did you do with it? A. I had several meetings with employees of the district who were in the units that were in the bargaining unit, I believe it is called. Q. Is that the line-You have two crews, I think, linemen and then there are servicemen, is that correct? A. Right. Q. Did you present this-discuss this petition with the line crew by indi- viduals or did you submit it to them in a group? A. As a group. Q. Well, tell the Examiner about that? A. I called a meeting of the line crew in the line department office and took a petition like that-I am not sure whether it was that one or not- with me. I explained to the crew that some previous petitions had been prepared in Fort Worth , that the form was incorrect , that this petition was in the approved form ; that I understood that a considerable majority of the employees in the line and service department had already signed the revised petition and that I wanted to give them the opportunity of signing it if they wanted to do so. Q. Did anybody ask you what was in it for them or anything to that effect during that time? A. In that particular meeting, I don't recall but one question . I can't remember who asked it ; one man asked me if the Union was decertified or 1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD words to that effect, who would represent them? That is the only question I recall being asked me at that meeting. Q. What did you say? A. I told him that they would still be able to represent themselves as they always had previously in dealings with the Company. Q. What slid you tell them-Did you ever talk to-Is that all you can remember now that you told the line crew at that time about the petitions, explaining it to them? A. No. I think I perhaps told them a little more. I think I told them that whether or not they signed it, was up to them ; that there was no com- pulsion, that I wasn't asking them to sign the petition. I hoped that some of them would in order for District K to be presented in it. As I remember, that is all that-the remainder that told them. Batjer also followed the same procedure as Francis in soliciting circulations of the petitions. After he received the petition from Whitaker he called T. V. Peidford, a lineman, and one of the oldest employees in terms of service in the district, into his office and suggested to him that he circulate the petition. According to Batjer not only was Peidford's length of service a compelling factor in his selection of him as a prospective solution, but the further fact that he was also a member of the union's negotiating committee. As to his conversation with Peidford, Batjer testified as follows: Did you ever talk to L. V. Peidford privately about this position? A. Yes sir. He is the first one that I did talk to about it. Q. What-Why did you talk to him? A. I called him into the office and for the reason which I told him, so I can combine the two if you don't mind-I told him I was calling him into the office because in the bargaining unit he was the oldest man in point of service and I would like to tell him what I planned to do and what the petition was about. Q. Did you know Mr. Peidford was on the bargaining unit and a member of the Union? A. Yes sir I knew that because he was on the committee. Q. You had a pretty good idea he'd turn anything you would say over to the Union, didn't you? A. I felt sure he would, yes. Q. He was the only one you talked to in private about it? A. As far as I remember, yes. Q. Tell the Examiner exactly what you told Mr. Peidford. Trial Examiner SHAW. Proceed. The WrTNESs. Thank you. I thought- A. I told Mr. Peidford that the information that I had received from the Company was that a previous petition had been presented in Fort Worth to the National Labor Relations Board to decertify the Union from repre- senting employees in the line and service crews, that an objection had been raised as to the form of it; that I had before me, which I read to him, a revised form of petition that I, as far as I knew, no one in District K had been signed on the previous petition which I had just learned of, and that I intended to give everyone an opportunity in the line and service crews to sign the petition if they so desired. WEST TEXAS UTILITIES COMPANY, INC. 1427 Batjer was unable to persuade Peidford to circulate the petition.' He then called a meeting of the employees and proffered the petitions to them for their consideration. At the same time he presented to the employees photostatic copies of petitions that had been signed in other districts. As a result of the combined efforts of the Respondent's district and branch managers more than 80 percent of the employees in the appropriate unit signed the several petitions for decertification. D. Concluding findings as to the refusal to bargain, and the Union's majority in the appropriate unit The Respondent admits that it refused to bargain further with the Union on November 8, 1947, and sets forth as its reason for so doing that the so-called first petitions clearly show that the Union had lost its majority as of that date and hence no longer was the bargaining agent for the employees in the appro- priate unit and that in view of that situation it was not required to bargain further with it. The Respondent also contends that by filing the petitions with the Board, a question concerning representation arose and therefore it was under no legal obligation to negotiate further with the Union until the Board conducted a decertification election among the employees in the unit to determine whether or not the Union still represented a majority of said employees. It further contends that under the Act the certification by the Board of a labor organization as the statutory bargaining agent continues in effect for only 1 year and since the first petitions were filed more than a year after the Union was certified by the Board it was illegal for it to negotiate with the Union and for the further reason the petitions disclose a substantial majority of the employees in the unit had indicated their desire to abandon the Union. The Respondent 'also contends that the petitions, in effect, showed that a rival claim concerning representation had arisen and therefore it could not continue negotiations until the Board resolved the issue by an election. Under a proper set of facts there might be some merit to the Respondent's contention but the facts in this case clearly shows that the contentions of the Respondent are without merit. Upon the record as a whole the undersigned is convinced, and finds, that the Respondent bargained in good faith with the Union until sometime in the early part of September 1947. On September 8, Null called Cain and requested that negotiations be continued. Cain suggested September 19 for a meeting and would not consent to an earlier date because of his pressing legal business. From September 8 until November 8, Null and Conciliator Majure called Cain on sev- eral occasions in an attempt to arrange a meeting; each time they were told that meetings would have to await either Cain's convenience or that of the Respond- ent. Such tactics shows lack of good faith dealing on the part of the Respondent. An employer is required to meet with the statutory representative of its employees at reasonable times. He does not have to agree to any proposal, but, at least, he must meet and negotiate in good faith. In the opinion of the undersigned the 13 Batjer admitted discussing the petitions with Peidford but denied that he asked him to circulate them . Peidford testified that he was asked to circulate one of the petitions among the crew he worked with . Peidford impressed the undersigned as an honest and reliable witness . Batjer on the other hand impressed the undersigned as being some- what evasive in his testimony on controversial issues. Consequently the undersigned credits Peidford in this regard. S57829-50-vol. 85--91 1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD lapse of a period of 2 months before the Respondent would agree to a definite date for a meeting with the Union is unreasonable, and he is convinced, and finds, that such conduct does not constitute bargaining in good faith and thus is violative of Section 8 (a) (5) of the Act as amended. The undersigned has duly considered the Respondent's contention that it was justified during this 2-month period to refuse to meet with the Union because the American Federation of Labor was not in compliance with Section 9 (f), (g), and (h) of the Act. The undersigned has given careful consideration to the Respondent's contention in this regard and rejects it as being without merit. Here the Union was certified on August 12, 1946, almost a year before the Act was amended. The Board has held in a number of cases that the Act, as amended, was not retroactive in its effect.11 Moreover, the Respondent was under a duty to respect the Board's certification until the Board in a proper procedure can- celed the certification." Furthermore, it is axiomatic that misinterpretation of the law is no defense to a violation thereof. As to the Respondent's contention that a certification of a bargaining agent is good for only 1 year, the Board and the courts in a long line of cases have held that, it is good for a "reasonable" time.16 What constitutes a reasonable time depends upon all the surrounding circumstances, and is a matter for the Board to determine administratively and not for the Respondent or any other employer. Moreover, there is nothing in the Act as amended contrary to the Board's policy in this regard. Consequently, the undersigned rejects this con- tention of the Respondent as being likewise without merit. The Respondent admits that it refused to bargain with the Union on and after November 8, 1947, because of the so-called first petitions for reasons which have been set forth above. In its answer, at the hearing, and in its brief, the Respondent specifically and vociferously denies that it initiated, sponsored, and circulated the first petitions. It also denies even having any knowledge of their circulation among its employees until after they had been forwarded to its home office in Abilene. This later contention is not sustained by the record. The testimony of Weaver, its branch manager at Spur, Texas, refutes this contention. As set forth above, he testified in substance that he not only knew that such petitions were being circulated but so informed the employees under his super- vision and that he had advised them that such a petition would be presented to them for their consideration. Moreover, he assisted Miller, who circulated the petition in his district, to meet with said employees. Again the discredited testimony of Ledford casts strong suspicion on the contention of the Respondent that it was without knowledge of the origin of the first petitions. However, suspicion is not evidence, and no finding can be predicated thereon. Upon the record as a whole, the undersigned is of the opinion that the Respondent "doth protest too much" in this regard. As to whether or not the Respondent initiated, sponsored, and authorized the circulation of the first petition the testimony, except for that of Weaver, is vague and inferential, and not the kind of reliable, probative, and substantial evidence upon which a finding can be made. In any event the undersigned is convinced that in view of his ultimate findings herein 34 See Matter of Marshall & Bruce, 75 N. L. R. B. 90. 15 See Matter of Northern Virginia Broadcasters, Inc., Radio Station WARL, wherein the Board held that the American Federation of Labor was not subject to the filing require- ments of Section 9 (f), (g), and (h). 16 See Matter of The Mengel Company, Fibre Container Division, 80 N. L. It. B. 110 ; Matter of Dorsey Trailers, Inc., 80 N. L. It. B. 89; Matter of Bethlehem Steel Com- pany, 73 N. L. R. B. 277; Matter of American-Marsh Pumps, Inc., 62 N. L. It. B. 931. WEST TEXAS UTILITIES COMPANY, IN C. 1429 it is unnecessary to make a definite finding on the allegations contained in the complaint relative to these alleged illegal acts of the Respondent. The processing of the petitions by Cain, however, is another matter. This conduct as will be shown hereinafter is part and parcel of the over-all picture. The Respondent admits, and the record clearly discloses, that the second petitions which have been described above were drafted and openly and notori- ously circulated and the employees solicited either by groups or individually by the top hierarchy of the Respondent's management. Moreover, as an inducement to secure the signatures of its employees to the petitions the employees were shown photostatic copies of petitions signed in other districts, and in particular the signatures of employees who had been active in the Union were pointed out to employees who were hesitant in signing the proffered petitions. In particular- the signature of George Spoon, former union committeeman on the Quanah•i petition, was singled out on numerous occasions in the Stamford and San Angelo, districts. The only reasonable inference that can possibly be drawn from these:' incidents is that it was done to show the union employees the futility of continu- ing to support the Union in view- of the disaffection of Spoon, a prominent union official. The signing of petitions was completed in the early part of January 1948. As indicated above, each of the petitions designated an employee in each district to act as the agent for the signatories thereon for the purpose of filing a decerti- fication petition with the Board. Sometime after the first of the year 1948, the. various petitions were sent to the law firm of McMahon, Springer and Smart, with offices in the Respondent's building in Abilene, Texas, presumably by the em- ployees designated as agents in the petitions. Springer, of the above law firm,. sent the petitions to the Board's office in Forth Worth, Texas, sometime in, January 1948. The undersigned has found above that the second petitions were distributedi in the various districts, with one or two exceptions, by the same employees who, distributed the first. He has also found that the employees were told by the Respondent's officials actively engaged in the circulation and solicitation that new petitions had to be signed because the first were illegal. He has also found' that in some instances the employees were told that the second petitions were necessary in order to "verify" the first. The undersigned is convinced, and finds,, that by the conduct described above the Respondent ratified and adopted the activities of its employees in the circulation of the first petitions and that as-. a. consequence thereof is responsible for all that flowed from this action. He is also convinced, and finds, that the circulation of both petitions was part and' parcel of a well-conceived plan to eliminate the Union as the statutory bargaining, agent for its employees. As the Board has so aptly stated in many cases the circulation of petitions, on company time and property.for the purposes to either change the certified. bargaining agents or to secure the signatures of employees, to revoke the authority of said bargaining agent, to act for them in collective bargaining with their employer, is violative of the Act. In the Appalachian) Electric Power Company, case" the Board said inter alia: "moreover, the circulation on company time and property with the knowledge and acquiescence of responsible company officials of a petition addressed to management did not, in our opinion, evoke from thE, employees, sensitive as they are to avoid the displeasure of their employer, a free. expression of their choice." In the considered opinion of the undersigned such: is the situation herein, and he so finds. "See In the Matter of Appalachian Electric Power Company, 47 N. L. it. B..821ti.at.8hO. and cases cited therein. 1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Moreover the undersigned is convinced, and finds, that by the conduct described above the Respondent in effect conducted an "election" among its employees by the circulation of the petitions which by their very language constitute, in effect, a repudiation of the Union, and a withdrawal therefrom by its employees who were members thereof. The untrammeled will of the employees in the selection of. a bargaining agent as contemplated by Section 7 of the Act cannot be exercised under the circumstances described above. Such conduct on the part of an em- ployer has long been held violative of Sections 7 and 8 of the Act by the Board and the courts in a long line of decisions." In view of the foregoing the undersigned finds that by sponsoring and circulat- ing the above-described petitions, and soliciting signatures thereto, on various dates during the months of August, September, November, and December 1947, the Respondent thereby induced its employees to repudiate the Union as their bargaining representative, and by such conduct interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and in violation of Section 8 (a) (1) of the Act. As is discussed hereinafter, all this is involved as well in the allegation that the Respondent by such conduct violated Section 8 (5) of the Act. A resume of the above shows that the Union was certified by the Board as the exclusive bargaining agent for the Respondent's employees in the appropriate unit described above on August 12, 1946. Thereafter the parties entered into negotiations for the purpose of reaching an agreement on wages, hours, and other conditions of employment. These negotiations continued until on or about May 17, 1947. On the later date the parties reached an agreement, but at the suggestion of Cain, counsel for the Respondent, the actual signing of the agree- ment was to be postponed for an indefinite period, approximately 90 days, in order that he might persuade the Respondent in the interim to grant an additional wage .increase. The Union accepted Cain's proposal. Thereafter the Union was unable to arrange a meeting with the Respondent for reasons which have been set forth above. On September 19, 1947, the Respondent refused to meet with the Union until it was in compliance with Section 9 (f), (g), and (h) of the Act. The Union complied with the terms of the Act, and so informed the Respondent and also requested the Respondent to resume negotiations.19 The Respondent agreed to meet, but at its own convenience. Thereafter at least two definite dates were set for a meeting of the parties. Both were canceled by the Respondent. On November 8, 1947, the Respondent informed the Union that it would no longer meet with it, because the petitions described above had been filed with it. As found above the said petitions were initiated, sponsored, and circulated by the Respondent and such activity on its part constituted an unfair labor practice violative of Sections 7 and 8 (a) (1) of the Act. The Respondent also contends that it was not required to bargain with the Union after November 8, 1947, because the said petitions showed that approxi- mately 80 percent of the employees in the appropriate unit had repudiated the Union as their bargaining agent, and had requested the Respondent to cease negotiating with the Union, and that since this evidence showed that the Union had lost its majority in the unit it was justified in doing so. is See Matter of American-Marsh Pumps, Inc., 62 N. L. R. B . 931; Matter of Pure Oil Company, 62 N. L. R. B. 1039; Valley Mould and Iron Corporation Y. N. L. R. B., 116 F. 2d 760, 764, 765 (C. A. 7). 11 As a matter of fact, even the most cursory examination of the release of the Board 's information division and the press as a whole during this period would have so informed the Respondent. WEST TEXAS UTILITIES COMPANY, INC. 1431 It is well settled that the certification by the Board of a labor organization as the bargaining agent for employees in an appropriate unit proves the status of the agent, such as the Union herein, as the representative of a majority of the employees in the appropriate unit and rests upon an election by secret ballot conducted by the Board pursuant to its Direction of Election. It is also well settled that the life of the certification is an administrative matter vested solely in the Board, and not subject to the whims and fancies of rival organizations for recalcitrant employers. It has been determined by the Board and the courts in a number of cases that following certification there is a presumption of the Union's continuing status as majority representative for a reasonable period of time.20 The undersigned has found above that under the circumstances found herein, on September 19 and November 8, 1947, it was reasonable to presume that the Union continued to represent the employees in the appropriate unit. To find otherwise "would be to render the orderly procedure and administrative machin- ery created by the Act for the ascertainment of employee bargaining representa- tives inefficacious and inconclusive to a degree sufficient to defeat the statutory purpose."' This is particularly true in the instant case. Here the attempted repudiation of the certified union was brought about by the unfair labor practices of the Respondent and not as a result of the free choice of the employees. The Board has held that "The unfair labor practices of the Respondent cannot operate to change the status of the bargaining representative previously selected by the untrammeled will of the majority." 22 The undersigned has found above that the Respondent refused to bargain with the Union on September 19, 1947, giving as an excuse therefor that the Union was not in compliance with Section 9 (f), (g), and (h) of the Act. His reasons for said finding have been set forth above and will not be reiterated in, this section of the report. The undersigned has also found that the Respondent refused to meet with the Union on November 8, 1947, because it questioned its majority in the unit. The Respondent based its refusal on the petitions de- scribed above which the undersigned has found to have been sponsored and cir- culated by the Respondent, and that such conduct was violative of Section 8 (a) (1) of the Act. He has also found that on September 1.9 and November 8, 1947, and at all times thereafter, the Union represented a majority of the em- ployees in the appropriate unit, and was still the statutory bargaining agent for the employees therein. The undersigned is convinced and finds that the petitions described above did not supersede the Board's certification of the Union as the exclusive bargaining representative of the employees in the appropriate unit, which certification was executed after the employees of their own free will and accord had selected the Union as their bargaining representative by secret ballot in an election conducted by the Board. The alleged dissipation of the Union's majority was caused by the Respondent's unfair labor practices. The Respondent cannot, by violating the rights of its employees to self-organization, create a defense to its refusal to bargain collectively with the statutory representative of its employees. As to the contention of the General Counsel that the Respondent violated Sec- tion 8 (a) (5) of the Act by refusing to sign the agreement reached on May 17, "Bethlehem Steel Co. v. N. L. R. B., 120 F. 2d 641 (App. D. C.), enforcing Matter of Bethlehem Steel Corporation, et al., and Steel Workers Organizing Committee, 15 N. L. R. B. 457. 21 Matter of Botany Worsted Mills and Textile Workers Union of America , 0. I. 0., 41 N. L. R. B. 218. 21 See N. L. R. B. v . Bradford Dyeing Association , 310 U . S. 318. 1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1947, the record is clear that the signing of the agreement was postponed by agreement of the parties. There is no substantial evidence in the record that either Null or any other member of the committee thereafter requested the Respondent to sign the agreement. As far as the record is concerned, Null's requests to Cain were for meetings to continue the negotiations. Section 8 (d) of the Act requires that a request must be made by either party to the agreement to reduce it to writing. Such is not the case here. Consequently the undersigned will recommend that this allegation in the complaint be dismissed, The undersigned finds from the above that the Respondent on September 19 and November 8, 1947, and at all times thereafter has refused to bargain col- lectively with the Union as the exclusive representative of its employees in the appropriate unit, and by such conduct has thereby interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. The undersigned futher finds that the Respondent refused to recog- nize the Union on November 8, 1947, and thereafter, as the exclusive representa- tive of the employees in the appropriate unit, thereby also violating Section 8 (a) (5) of the Act. E. Other acts of interference , restraint , and coercion" During the Union 's organization drive in June 1946, K. K. Francis , district man- ager at Stamford , in a conversation with Robert M. Moore, a lineman , asked him what he thought about the Union. Moore told him in substance that he did not know anything about it. Francis then asked Moore about the union activities of his brother, William, also an employee of the Respondent in the Stamford area. Francis also asked Moore to talk with William and endeavor to persuade him to "change his way of thinking about the Union," and request him not to join it. Francis admitted that lie had a conversation with Moore at about that time concerning his brother , William, and that there was some discussion about the Union, but he denied asking Moore to endeavor to persuade his brother to keep out of the Union. Moore impressed the undersigned as an honest and reliable witness. Francis, on the other hand , was somewhat vague in his testimony as regards just what was said in his conversation with Moore . Suffice it to say however that he did admit talking to Moore about the Union , and in particular regarding his brother, William . Under such circumstances the undersigned credits Moore's account of what was said in his conversation with Francis. The conduct described above has long been held violative of the Act both as originally enacted and as amended. Francis' interrogation of Moore and his re- quest that he endeavor to persuade his brother , William, to stay out of the Union, and to change his thinking in this regard is tantamount to questioning an em- ployee concerning his union activities, and the undersigned so finds. In a recent case, Matter of Ames Spot Welder Company, Inc., 75 N. L. R. B. 352, where a sim- ilar issue was involved, the Board found that such conduct is per se an unfair labor practice. "The complaint alleges numerous other acts of the Respondent and its agents as inde- pendent violations of Section 8 (a) 1 of the Act. The undersigned dismissed a number of said allegations at the hearing herein, and reserved ruling on a number of others. Except where specific findings as to the alleged violations have been disposed of in this report, the other allegations were not supported by reliable, probative, and substantial evidence. Consequently the undersigned recommends that they be dismissed . The undersigned is convinced that no useful purpose would be served by burdening this report by disposing of said allegations individually, WEST TEXAS UTILITIES COMPANY, INC. 1433 The undersigned concludes and finds from the entire record in the case, that by the above-described conduct of Francis, Respondent's district manager at Stam- ford, the Respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, thereby violating Sec- tion 8 (a) (1) of the Act as amended. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES ON COMMERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent described in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY It. has been found that the Respondent has engaged in and is engaging in certain unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the Respondent has refused to bargain collectively upon request with the Union as the exclusive representative of its employees in an appropriate unit. It will therefore be recommended that the Respondent, upon request, bargain collectively with the Union. It will also be recommended that the Respondent upon demand of the Union sign a written agreement of all matters agreed upon at the meeting between the parties on May 17, 1947. Upon the basis of the foregoing findings of fact, and upon the entire record in the ease, the undersigned makes the following: CONCLUSIONS OF LAW 1. International Brotherhood of Electrical Workers, Locals Nos. 898, 920, and 1044, A. F. L., are labor organizations within the meaning of Section 2 (5), of the Act. 2. All employees of the Respondent's transmission, distributing, and service departments in Districts A, B, C, E, F, G, H, J, and K, including linemen, sub- station maintenance men, service men, and including apprentices, helpers, ground men, and laborers attached permanently to the crews in the above de- partments and including truck drivers except for casual and temporary employees and all other laborers, substation operators, combination local managers, office, clerical, and technical employees, meter men, patrol man and all supervisory employees having authority to hire, promote, discharge, and discipline employees or otherwise effect changes in the status of employees or effectively recommend such action, constitute a unit for the purposes of collective bargaining within the meaning of Section 9, subsection (b) of the Act. 3. International Brotherhood of Electrical Workers, Locals Nos. 898, 920, and 1044, A. F. L., were on August 12, 1940, and at all times thereafter have been, the exclusive representatives of all the employees in such appropriate unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 4. By refusing on September 19, 1947, and November 8, 1947, and at all times thereafter, to bargain collectively with International Brotherhood of Electrical 1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Workers, Locals Nos. 898, 920, and 1044. A. F. L., as the exclusive representative of all its employees in said appropriate unit, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (5) of the Act. 5. By interfering with, restraining, and coercing its employees in the exer- cise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (a) (1) of the Act. 6. The aforesaid unfair labor practices are unfair labor practices affecting commerce , within the meaning of Section 2 (6) and (7) of the Act. 7. The Respondent did not refuse to bargain with the International Brother- hood of Electrical Workers, Locals Nos. 898, 920, and 1044, A. F. L., between March 3, 1947, and September 19, 1947, and thus did not violate Section 8 (a) (5) of the Act. 8. The Respondent did not refuse to sign the agreement reached on May 17, 1947, with the International Brotherhood of Electrical Workers, Locals Nos. ,898; 920, and 1044, A. F. L., between May 17, 1947, and September 19, 1947. 9. The Respondent did not on or about March 3, 1947, in effect unilaterally grant a wage increase to its employees in the above appropriate unit, by posting a notice of said wage increases throughout its various districts without setting forth thereon the names of the Union's bargaining committee. RECOMMENDATIONS Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record of the case, the undersigned recommends that the Respond- ent, West Texas Utilities Company, Inc., Abilene, Texas, its officers, agents, successors, and assigns, shall: 1. Cease and desist from : (a) Refusing to bargain collectively with International Brotherhood of Elec- trical Workers, Locals Nos. 898, 920, and 1044, A. F. L., as the exclusive repre- sentative of all of its employees in the above-described appropriate unit ; (b) 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 choos- ing, and to engage in concerted activities for the purposes of collective bargain- ing or other mutual aid or protection as guaranteed in Section 7 of the Act; (c) Notify the Regional Director for the Sixteenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the Respondent has taken to comply therewith ; - (d) It is further recommended that the complaint be. dismissed insofar as it alleges: (1) that the Respondent refused to bargain with the International Brotherhood of Electrical Workers, Locals Nos. 898, 920, and 1044, A. F. L., between March 3, 1947, and September 19, 1947; (2) that the Respondent refused to sign the agreement reached with the International Brotherhood of Electrical Workers, Locals Nos. 898, 920, and 1044, A. F. L., on May 17 , 1947.; and (3) that the Respondent on or about March 3, 1947, in effect granted a unilateral wage increase by posting a notice in its various districts relative to such increases without setting forth thereon the names of the Union 's bargaining committee; (e) Post in its District and branch offices in districts A, B, C, E, F, G, H, J, and K, copies of the notice attached hereto and marked Appendix B. Copies of said notice , to be furnished by the Regional Director of the Sixteenth Region, WEST TEXAS UTILITIES COMPANY, INC. 1435 shall , after being duly executed by the Respondent 's representative , be posted by the Respondent immediately upon receipt thereof, and be maintained by it for a period of at least sixty (60) consecutive days thereafter, iii conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken to insure that such notices are not altered, de- faced, or covered by any other material. It is further recommended that unless on or before ten ( 10) days from the date of the receipt of this Intermediate Report the Respondent notifes said Regional Director in writing that it will comply with the foregoing recommenda- tions, the National Labor Relations Board issue an order requiring the Respond- ent to take the action aforesaid. As provided in Section 203.46 of the Rules and Regulations of the National Labor Relations Board-Series 5, as amended August 18, 1948, any party may, within twenty (20) days from the date of service of the order transferring the case to the Board, pursuant to Section 203.45 of said Rules and Regulations, file with the Board , Rochambeau Building , Washington 25, D. C., an original and six copies of a statement in writing setting forth such exceptions to the Inter- mediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the orig- inal and six copies of a brief in support thereof ; and any party may, within the same period, file an original and six copies of a brief in support of the Intermedi- ate Report. Immediately upon the filing of such statement of exceptions and/or briefs, the party filing the same shall serve a copy thereof upon each of the other parties. Statements of exceptions and briefs shall designate by precise citation the portions of the record relied upon and shall be legibly printed or mimeo- graphed, and if mimeographed shall be double spaced. Proof of service on the other parities of all papers filed with the Board shall be promptly made as required by Section 203.85. As further provided in said Section 203.46, should any party desire permission to argue orally before the Board, request therefore must be made in writing to the Board within ten (10) days from the date of service of the order transferring the case to the Board. In the event no Statement of Exceptions is filed as provided by the aforesaid Rules and Regulations , the findings , conclusions , recommendations , and recom- mended order herein contained shall , as provided in Section 203.48 of said Rules and Regulations , be adopted by the Board and become its findings , conclusions, and order , and all objections thereto shall be deemed waived for all purposes. Dated at Washington, D. C., this 26th day of January 1949. JAMES A. SHAW, Trial Examiner. APPENDIX A PETITION Under Section 9-C of National Labor Relations Act as amended by Labor-Manage- ment Relations Act, 1947 To the Honorable National Labor Relations Board: NOW COMES West Texas Utilities Company, and files this its Petition request- ing that this Honorable Board order an election for the purposes of determining whether or not the International Brotherhood of Electrical Workers, A. F. of L., represents a majority of the employees included in hereinafter referred to bar- 1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD gaining unit, all in accordance with paragraphs (1) (A) (i) and (1) (B) of Section 9 (c) of the National Labor Relations Act as amended by Labor-Manage- ment Relations Act, 1947, and for said Petition would respectively represent unto this Honorable Court : I That heretofore, beginning on or about September 2, 1947, and at intervals up to this date, West Texas Utilities Company has received unsolicited communica- tions by employees included in the hereinafter referred to bargaining unit, which communications are attached hereto and made a part hereof for all purposes. That the communications attached hereto and signed by the employees of this Company constitute ,more than fifty (50%) percent of the employees involved and employed in the hereinafter referred to bargaining unit. II The address of the employer is Abilene, Texas, where headquarters offices are maintained. The bargaining unit involved is: All employees in the company's transmission, distribution and service departments in districts A, B, C, E, F, G, H, J and K, including linemen, substation maintenance men, service men, appliance service men, refrigera- tion service men, and including apprentices, helpers, ground men, and laborers attached permanently to the crews in the above departments, and including truck drivers, except, however, casual and temporary employees and all other laborers, substation operators, combination local managers, office, clerical and technical employees, meter men, patrol men, and all super- visory employees having authority to hire, promote, discharge and discipline employees, or otherwise effect changes in the status of employees, or effec- tively recommend such action. III West Texas Utilities Company is in the electric light and power business, serving the public in West Texas. Iv The names of Petitioners are attached hereto, each of whom are employees of West Texas Utilities Company employed in the above bargaining unit. V The International Brotherhood of Electrical Workers, Locals No. B-89S, B-920, and B-1044, A. F. of L., were on August 2, 1.946, certified by the National Labor Relations Board for the Sixteenth Region in Fort Worth, Texas, to be the exclusive representative of the employees covered in the above bargaining unit. No contract has as yet been entered into between the Company and the Union or any of the employees working in the above bargaining unit. VI The number of employees in the above bargaining unit are approximately two hundred (200). VII That West Texas Utilities Company would show unto the Board that the International Brotherhood of Electrical Workers is at the present time re- WEST TEXAS UTILITIES COMPANY, INC. 1437 questing the resumption of negotiations for the purpose of collective bargaining and entering into a contract covering conditions of employment and salaries of the employees referred to herein. Tliat due to the fact and only due to the fact that it has received unsolicited these communications attached hereto from more than a majority of the employees involved and employed in the above bargaining unit, that the Company declines to negotiate further with the In- ternational Brotherhood of Electrical Workers until such time as this Honorable Board shall, by appropriate means as provided by law, determine whether or not the International Brotherhood of Electrical Workers at this time represents more than a majority of the employees in the above bargaining unit, and made proper certification thereof unto the Company. That this application is made without intention of interfering with or other- wise injuring the International Brotherhood of Electrical Workers, but such Petition is made for the sole purpose of preserving harmony and peaceful labor- management relations with its employees, as provided by the National Labor Relations Act as amended by Labor-Management Relations Act, 1947. WHEREFORE, PREMISES CONSIDERED, West Texas Utilities Company respectfully requests that this Honorable Board make such investigation of the employee's Application for Decertification as this Board may deem proper under the pro- visions of the aforesaid law, and that an election be held and that the procedure as outlined by law be followed in making due certification to the Company, as to whether or not it shall recognize the International Brotherhood of Electrical Workers as the exclusive bargaining agent for the employees employed in the aforesaid bargaining unit. IRION AND CAIN, By --------------------- FRANK CAIN, 610 Mercantile Bank Building , Dallas 1, Texas:. APPENDIX B NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT engage in any acts in any manner interfering with the efforts of International Brotherhood of Electrical Workers, Locals Nos. 89S, 920, and 1044, A. F. L., to negotiate for or represent the employees in the bar- gaining unit described below. WE WILL BARGAIN collectively upon request with the above-named union as the exclusive representative of all employees in the bargaining unit de- scribed herein with respect to rates of pay, wages, hours of employment, or other conditions of employment, and if an understanding be reached, embody such understanding in a signed agreement. The bargaining unit is: All employees of the Company's transmission , distributing and service departments in Districts A, B, C, E, F, G, H, J, and K, including linemen, substation maintenance men, service men, and including apprentices, helpers, ground men and laborers attached permanently to the crews in the above departments, and including truck drivers except for casual and temporary employees and all other laborers, substation operators, combination local managers, office, clerical, and technical employees, 1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD meter man , patrol man and all supervisory employees having authority, to hire, promote, discharge and discipline employees or otherwise effect changes in the status of employees or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9, subsection (b) of the Act. WEST TEXAS UTILITIES COMPANY, INC., Employer. By-------------------------------------- (Representative) (Title) Dated -------------------- This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.