Alabama Power Co.

National Labor Relations Board - Board Decisions

Dec 22, 1939

18 N.L.R.B. 652 (N.L.R.B. 1939)

In the Matter of ALABAMA POWER COMPANY and INTERNATIONAL
BRoTmuuIooD OF ELECTRICAL WORKERS
Case No. C-1127.-Decided December 2,'1939
Electric Utility Industry-Interference, Restraint , and Coercion : anti-union
statements by supervisors-Company-Dominated Unions: interference with, dom-
ination and support of ; Independent Union held successor of two Employees
Associations ; first Employees Association formed by Company ; second Employees
Association formed with the Company's assistance-Check-off: held assistance
to Employees Association-Remedy: company ordered to disestablish second Em-
ployees Association , order not to affect accident , health, and hospitalization
insurance program; to refrain from recognizing Independent Union ; Company
ordered to return to employees dues checked off.
Mr. Samuel Lang and Mr. C. Paul Barker, for the Board.
Martin, Turner and McWhorter, by Mr. Hobart A. McWhorter and
Mr. P. W. Turner, of Birmingham, Ala., for the respondent.
Mr. 0. A. Walker, of Birmingham, Ala., and Mr. James Preston,
of Washington, D. C., for the I. B. E. W.
Miss Carol Agger, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by the International
Brotherhood of Electrical Workers, herein called the I. B. E. W.,
the National Labor Relations Board, herein called the Board, by the
Regional Director for the Fifteenth Region (New Orleans, Louisiana),
issued its complaint and notice of hearing dated September 12, 1938,
against Alabama Power Company, Birmingham, Alabama, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce within
the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the
National Labor Relations Act, 49 Stat. 449, herein called the Act.
The complaint, as amended, contained certain allegations concerning
the nature of the respondent's business and, in respect to unfair labor
practices, alleged in substance that on or about July. 30, 1934, the
18 N. L. R. B., No. 78.
652
ALABAMA POWER GOMPAN'Y 653
respondent originated a plan of employee representation, named the
Alabama Power Employees' Representation Association, herein called
the Representation Association, and from July 30, 1934, up through
August 1935, dominated and interfered with the administration of
the Representation Association and contributed financial and other
support thereto; that in May, June, July, or August, 1935, the re-
spondent assisted in the formation of a labor organization known as
Alabama Power Company Employees' Association, herein called the
Employees' Association and has at all times since dominated and inter-
fered with its administration, and has contributed financial and other
support thereto; that the respondent by pay-roll check-offs has col-
lected dues in excess of $10,000, in behalf of the Employees' Associa-
tion; that on or about July 23, 1938, the respondent assisted in the
formation of a labor organization called the Independent Union of
Alabama Power Employees, Inc., herein called the Independent, and
has at all times since that date dominated and interfered with its
administration and has contributed financial and other support
thereto; and that between July 5, 1935, and September 1, 1938, the
respondent has discouraged membership of its employees in the
I. B. E. W. in a number of ways specified in the complaint and by
other acts and conduct. The complaint, and amendments thereto,
and the notice of hearing were duly served upon the respondent and
the I. B. E. W.
On September 27, 1938, the respondent filed a motion to dismiss the
proceedings on the grounds that the complaint failed to set forth facts
to show that the Board had jurisdiction to entertain the proceedings;
that the facts set forth in the complaint were insufficient to show that
the respondent had dominated or interfered with the three labor or-
ganizations, or that the respondent had interfered with, restrained,
or coerced its employees; that the Act is null and void because it de-
prives the respondent of its property without due process of law
contrary to the provisions of the Fifth Amendment to the United
States Constitution in that the Act exempts from its operation power
systems similar to the respondent's which are operated by political
bodies; and that the charge upon which the complaint is based is de-
ficient in that it does not state the address of the labor organization
making the charge, the names of the individuals involved, and the
time and place of occurrence.'
On September 27, 1937, the respondent filed an answer to the com-
plaint as amended, and on November 28, 1938, filed a further answer
to an amendment to the complaint which was made during the hear-
ing. The respondent in its answers, without waiving its motion to
1 This motion was renewed before the Trial Examiner at the beginning of the hearing
and is ruled on below.
654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dismiss, admitted that it assisted in the formation of the Representa-
tion Association and made financial contributions thereto from July
30, 1934, to July 5, 1935, but denied that it dominated or interfered
with the Representation Association ; denied that it assisted in the
formation of the Employees' Association or dominated or interfered
with its administration or contributed support thereto, but stated that
some meetings of the Employees' Association may have been held upon
the respondent's property without its express approval or disapproval;
stated that upon the basis of individual authorizations it deducted
$7,115.40 from the salary due its employees and has paid the same to
the Employees' Association; denied that it dominated, interfered with,
or assisted in the formation or administration, of the Independent;
and denied that it had interfered with, restrained, or coerced its em-
ployees in the exercise of the rights guaranteed by Section 7 of the
Act and alleged that if any supervisory employees have participated
in acts resulting in interference, restraint, or coercion of the employees,
such participation was beyond the scope of their authority and in
violation of instructions.
After several postponements, notices of which were served upon the
parties, the hearing opened in Birmingham, Alabama, on November 3,
1938, before D. Lacy McBryde, the Trial Examiner duly designated by
the Board, and closed on December 7, 1938.
The Board and the respondent were represented by counsel and the
I. B. E. W. by an International Representative. At the beginning of
the hearing the Independent moved to intervene in the proceedings.
This motion was denied by the Trial Examiner. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues was afforded all parties. At the be-
ginning of the hearing, at the conclusion of the Board's case, and at
the end of the hearing, the respondent renewed its previously filed
motion to dismiss the proceedings. The Trial Examiner denied the
motion on the first occasion and reserved ruling upon the second two
occasions. The motion is hereby denied. The Trial Examiner also
ruled upon a number of other motions and objections to the admission
of evidence during the course of the hearing. The Board has reviewed
all the rulings of the Trial Examiner and finds that no prejudicial
errors were committed. The rulings are hereby affirmed.
On January 17, 1939, the Trial Examiner issued his Intermediate
Report finding that the respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (1) and
(2) and Section 2 (6) and (7) of the Act. He recommended that
the respondent cease and desist from interfering with, restraining,
or coercing its employees in the exercise of their rights to self-
organization, to form, join, or assist the I. B. E. W. or any other
ALABAMA POWER COMPANY 655
labor organization, to bargain collectively through representatives
of their own choosing and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection;
that the respondent cease and desist from dominating or interfering
with the formation and administration of the Representation Asso-
ciation, the Employees' Association, the Independent, or any other
labor organization, and from contributing financial or other support
thereto; and that the respondent withdraw all recognition from the
Independent as representative of its employees for the purpose of
dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, and other conditions of
employment and completely disestablish, the Independent as such
representative.
On January 27, 1939, the respondent filed its exceptions to the
Intermediate Report and on March 8, 1939, it filed a brief in support
thereof in which it again renewed its motion to dismiss the com-
plaint. On March 11, 1939, the I. B. E. W. filed a brief. Pursuant
to notice, a hearing for the purpose of oral argument on the excep-
tions was held before the Board at Washington, D. C., on September
14, 1939, in which the respondent and the I. B. E. W. participated.
The Board has considered the exceptions to the Intermediate
Report and, except in so far as they are consistent with the findings,
conclusions, and order set forth below, finds them to be without
merit
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Alabama Power Company, the respondent, is an Alabama corpo-
ration having its principal place of business in Attalla, Alabama.
Ninety per cent of its voting stock is owned by The Commonwealth
and Southern Corporation, a Delaware corporation. It is engaged
chiefly in the business of generating, selling, and distributing elec-
trical energy for lighting, power, and other purposes.
The respondent as the principal supplier of power in. the
State of Alabama
At the end of 1937, the respondent was supplying power either
directly or indirectly to 672 communities in 64 of the 67 counties
of the State of Alabama, including the cities of Mobile, Birmingham,
Montgomery, Gadsden, and Anniston; there being a total of over
226,000 customers whose power requirements were being met by the
656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent.2 The respondent 'is the sole supplier of electrical energy
to well over half the area of the State of Alabama, some portions
being served by cooperatives, municipal systems, and about eight
other private utilities. Of these private utilities, the Birmingham
Electric Company, which serves the City of Birmingham and vicin-
ity, generated no power at all during the year 1937, and obtained
its total supply from the respondent which is its ordinary practice.
The respondent also supplies power in substantial amounts to four
other private utilities which operate in the State of Alabama.8
The cooperatives and municipal systems, which serve a compara-
tively small portion of the State, are supplied with electrical energy
either by the respondent, by the Tennessee Valley Authority or by
their own plants. The Tennessee Valley Authority supplies power
to about 14 municipalities and to a few small towns. The record
does not disclose how many of the municipal systems and coopera-
tives purchase power from the respondent.
In addition to this business the respondent buys and distributes a
small amount of gas to consumers in the vicinity of Phenix City,
Alabama, operates a local bus system serving the City of Hunts-
ville, Alabama, and vicinity, and a street-railway system serving
the City of Tuscaloosa, Alabama, and vicinity.
The respondent's transmission and receipt of power across
State lines
The respondent owns and operates six hydro-electric plants and
seven steam plants in the State of Alabama at which all the respond-
ent's electricity is generated. The respondent also owns and operates
substations and transmission lines in the State of Alabama for the
distribution of the electricity generated at the various plants. A
number of these transmission and distribution lines are connected
at the borders of the State of Alabama with the transmission and
distribution lines of the Georgia Power Company, the Gulf Power
Company, the Southern Tennessee Power Company, and the Missis-
sippi Power Company.4 The only break in these transmission lines
at the State border is in ownership; the lines continue unbroken
2 In the year 1937, the respondent sold 111,405 ,455 kilowatt-hours for residential and
domestic use; 20,440 , 284 kilowatt-hours for rural use; 1,031 ,508,588 kilowatt-hours for
commercial and industrial use; and 7,319,255 kilowatt -hours for street and highway
lighting.
8 Three of these companies , the Baldwin County Power Company, Tallassee Mills Utilities
Company and the Tuskegee Light and Power Company, generated no current by their
own facilities during 1937 , and purchased from the respondent respectively 639,000,
3,525,797, and 4,016,400 kilowatt-hours.
4 The Commonwealth and Southern Corporation owns all the common stock of these
companies . These companies are in turn interconnected with other companies with the
result that the respondent is frequently a part of an interconnected system extending
as far as Ohio.
ALABAMA POWER COMPANY 657
in a physical sense. The respondent, in selling to and exchanging
power with these companies, delivers power to and receives power
from them which is metered at the Alabama border.5 During the
year 1937, the respondent delivered approximately 20 per cent of
the total amount of energy produced by it to the above-named com-
panies for use in States other than the State of Alabama. In its
annual report to the Federal Power Commission for the year ended
December 31, 1937, the respondent summarized its sale and inter-
change of power with other utility companies as follows :
Name of company
Kilowatt-hours , total deliveries,
and receipts I
Received Delivered
Mississippi Power Company__ __________________________________________ 71, 440 147, 065, 487
Gulf Power Company--------------------------------------------------- ---------------- 44, 717,122
Georgia Power Company ------------------------------------------------ 79,571,158 340, 795, 220Tennessee Electric Power Company 8______________.___________________- 2,332,000 98, 977,907
I These figures include both sales and exchanges . The respondent's report breaks them down into the
two elements , sales and exchanges of power, as well as reporting the total deliveries and receipts.
2 99 per cent of the common stock of the Tennessee Electric Power Company is owned by The Common-
wealth and Southern Corporation . It is noted that the respondent in its answer refers to deliveries to the
Southern Tennessee Power Company, but does not report any deliveries to this Company in its Annual
Report. However, in the registration statement filed with the Securities and Exchange Commission, The
Commonwealth and Southern Corporation explains that the Southern Tennessee Power Company, a
wholly owned subsidiary of The Commonwealth and Southern Corporation , owns the transmission line
over which is transmitted electrical energy purchased by the Tennessee Electric Power Company from the
respondent. It therefore , appears that deliveries to the Southern Tennessee Power Company were for the
use of the Tennessee Electric Power Company and are reported in the above table as deliveries to the latter.
The annual reports for the same year to the Federal Power Com-
mission of these four companies show that a substantial portion of
the total power used by them during the year 1937 was received from
the respondent."'
The respondent urges in its brief that this delivery of power to
other utility companies at the State line is incidental to its main
business and that in all but two instances was a sale of surplus power
upon the basis of "when, as and if available" and that a cessation
of power supply from the respondent would not affect the free flow
of commerce in the States served by the four above companies since
they have other sources of power within their respective States suf-
ficient to supply their demands. While it may be that the respondent
views such deliveries as "incidental" deliveries of surplus power, it
5 The respondent owns no transmission lines outside the State of Alabama.
e The report shows :
Company Power gener-ated kw-h.
Power purchased and interchanged (in gross)
kw-h.
Gulf Power Company___________ 48, 604 52,372,872 (44,717 , 122 from the respondent).
Mississippi Power Company____ 23, 990, 511 151,654,287 (147,065,487 from the respondent).
Georgia Power Company_ _______ 1, 502, 636, 635 475,182,440 (340,795,220 from the respondent).
Tennessee Electric Power Corn-
pany.
927, 935, 507 226,689,680 (98,877,907 from the respondent).
658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is noted that approximately 20 per cent of the total power generated
by the respondent in 1937 was delivered to the companies providing
services in other States. It further appears from the record that
these deliveries are a continuing characteristic of the respondent's
business .7 Thus the respondent has delivered and received a substan-
tial amount of energy, which moves across State lines, for a number
of years, and the record does not disclose that this practice has ceased.
It is immaterial that the respondent is not legally bound to make all
these deliveries in the absence of a surplus.
The respondent, by its contention that the free flow of commerce
would not be affected by a cessation of its operations because the four
companies have other sources of power available, may intend to
urge either or both of two contentions: (1) that the sale and inter-
change of power at the border does not result in a movement across
State lines within the meaning of "commerce" as it is defined in the
Act since no material thing moves; or (2) that such cessation would
not hamper the interstate activities of the customers of the four
companies since their needs could be met by the companies in other
ways. We think it clear that the delivery of power at the Alabama
border into the connecting lines of the four utility companies does
result in the movement of power across State lines and that this is
commerce within the meaning of the Act, even though the precise
nature of the movement cannot be fully explained.8 The second
r The respondent 's report to the Federal Power Commission for July 1938 , entitled "Report of Move-
mentof Electrical Energy Across State Lines ," discloses receipts and deliveries as follows:
Name of company in adjoining State
Mississippi Power Cc--- ------------------------------------------
Gulf Power Cc---------------------------------------------------
Georgia Power Co-------------------------------------------------
Tennessee Electric Power Cc--------------------------------------
Grand total -------------------------------------------------
Kilowatt-hours
Received
14,175,438
3,804,930
29, 616, 486
5,184, 930
5, 780
----------------
6,299,228
3,200
Delivered
6,308,208 52, 781, 784
The respondent summarized its deliveries and receipts of power for the years 1934 , 1935, and 1936 as
follows:
1936 1935 1934
Georgia Power Company---
Tenn. Elec. Power Com-
pany---------------------
Miss. Power Company-----
Gulf Power Company------
Delivered
kw-h.
Received
kw-h.
Delivered
kw-h.
Received
kw-h.
Delivered
kw-h.
Received
kw-h.
379, 027,294 81, 673, 568 380,173, 760 58, 419, 032 851,777,428 76, 278, 448
46, 752, 602 59,400 8,42 6, 400 50,200 14,183,200 632,400
135,149, 714 6,228 110, 251, 273 8,000 92, 785,203 97, 772
37, 218, 947 29,888, 448 ----------- 27, 819,689
E. W. Robinson , the respondent 's vice president in charge of operations , testified that all the inter-
connected systems feed power into what is in effect one system when they are all generating power and
that it is impossible to ascertain the source of a particular unit of energy. As a result of the connection of
the respondent 's lines with those of the other companies, the respondent 's facilities would automatically
supply more power to the other companies if some break -down should occur in their generating facilities.
ALABAMA POWER COMPANY 659
possible contention is also without merit. It appears from the record
that the four utility companies could not completely and immediately
meet the demands of their customers. The Georgia Power Company
could take care of its "essential load" only by dropping one of its
large secondary customers. If the cessation of the respondent's opera-
tions took place at a time when the load levels were high and the
weather dry, the companies would require a number of hours to
"bring in" their reserve steam plants. In any event the diversion
of interstate commerce from the respondent to other suppliers would
itself suffice to establish the relation of the respondent's operations
to the flow of interstate commerce. .
The respondent as supplier of power to instrumentalities of interstate
commerce
The respondent supplies large amounts of electrical energy at a
number of different points to the principal interstate railroads run-
ning in and out of Alabama carrying mail, passengers, and freight in
and out of the State .9 These railroads use electric power for a
number of purposes including the lighting of offices, stations, tele-
graphic offices, and interlocking towers, and the operation of signals
which govern the movement of trains, the machinery in the shops,
locomotive turn tables, and to some extent for the operation of grain
elevators and coal conveyors. The present normal operations of the
railroads are dependent upon electric power. Certain make-shifts "o
could be employed to continue their operations should the power be
cut off, although their employment would result in slowing the rail-
roads' activities.
The respondent also supplies large quantities of electricity to the
Southern Bell Telephone and Telegraph Company at a number of
points in the latter's system."' This Company supplies telephone
service to the whole State of Alabama except the extreme south-
eastern portion, and its system is connected with systems serving
other States and foreign countries and with ships at sea by means of
radio telephone. It also supplies teletypewriter services to the Asso-
Southern Railway Company ; Seaboard Airline Railway Company ; Central of Georgia
Railway Company ; Atlanta, Birmingham and Coast Railway Company ; L. & N. Railway
Company ; Tennessee, Alabama, and Georgia Railway Company ; Alabama Great Southern
Railway Company ; St. Louis and San Francisco Railway Company ; Mobile and Ohio
Railroad Company ; Gulf, Mobile and Northern Railway Company ; Illinois Central Rail-
road ; Atlantic Coast Line Railway Company ; and Western Railway of Alabama.
10 For example, the orders for train movements would have to be sent over commercial
lines instead of the railroads' own telephone systems. The effect of the cessation of the
power supply upon commercial telephone system is discussed below.
11 The Southern Bell Telephone and Telegraph Company buys power from municipal
systems in the towns of Sheffield, Tuscumbia, Florence, Athens, Guntersville, Dothan,
and Sylacauga.
660 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ciated Press, the United Press, sundry newspapers, radio stations,12
and stockbrokers 13 and furnishes facilities to carry radio programs
originating at New York City or Chicago from the central network
stations to stations associated with the network.14 The primary use
to which the Southern Bell Telephone and Telegraph Company puts
electrical energy is the charging of storage batteries which supply
the power to the telephone system. It also uses power for lights,
for running various calculating machines, ringing machines, and for
operating teletypewriter machines. If the electric power over the
State were shut off, the Southern Bell Telephone and Telegraph Com-
pany could operate its telephone service until the storage batteries ran
down, a period of from 24 to 48 hours, and after that would have to
obtain emergency equipment at those exchanges where it had no
emergency generating systems. This would require considerable time
and expense.
The respondent furnishes electric power to the three principal air-
ports in Alabama, which are located at Birmingham,15 Mobile and
Montgomery, and for the United States Army Airport at Montgomery.
These airports are used as stopping places for several airlines on inter-
state journeys where freight, mail , and passengers are picked up and
discharged. At the airports, electricity is used to operate radio beams
to allow instrument flying, boundary lights, beacons, and flood lights,
all of which are essential for the safety of planes landing at night.
The respondent also supplies power to bus and trucking companies,
United States Post Offices, and other United States government of-
fices and facilities including the U. S. Lighthouse Department and
the Inland Waterways Corporation, the Western Union Company,
Postal Telegraph Company, numerous newspapers, Railway Express
Agency, Federal Barge Lines, a number of radio stations, railroads
other than those above mentioned, warehouses at the State Docks at
Mobile, the cold-storage plant operated by the State Docks Com-
mission, the State and Municipal Docks at Mobile, and to the coaling
station for ships at Mobile.
12 Radio stations use the teletypewriter to communicate with central network stations
outside the State of Alabama.
78 Stockbrokers use the teletypewriters to take and transmit quotations and orders,
ordinarily to and from points outside the State of Alabama.
u One or more radio stations located in each of the cities of Birmingham, Montgomery
and Mobile, Alabama, have connections with and broadcast the programs of national radio
networks.
15 The Birmingham Electric Company supplies power to the Birmingham Airport. We
have found above that the Birmingham Electric Company ordinarily procures all the
electricity distributed by it from the respondent.
ALABAMA POWER COMPANY 661
The respondent as supplier of power to industries engaged in
interstate commerce
Answers to questionnaires submitted to industrial concerns located
in Alabama, and introduced pursuant to a stipulation between the
Board and the respondent that such answers should be considered
as though given by duly qualified witnesses,"' indicate that at least
49 industrial concerns, which do a substantial interstate business, are
wholly or almost wholly dependent upon power supplied by the
respondent for their normal operation.17 -
The respondent contends that the contribution of these concerns to
interstate commerce is "relatively small and lacks those elements of
importance to commerce which would make applicable the principles
laid down in the Consolidated Edison Case." 18 Even if this were
a material consideration'19 there are, as we have pointed out, a large
number of industrial concerns dependent upon the respondent for
power to carry on their normal operations. Some of these concerns
make a very large contribution to interstate commerce. We consider
the respondent's contention to be without merit.
From the foregoing it is evident, and we find, that the respondent is
the principal supplier of electrical energy in the State of Alabama;
that it transmits and receives substantial quantities of power across
State lines; that it supplies large amounts of power to instrumentali-
ties of interstate commerce and to industries engaged in interstate
commerce; that the normal operation of these instrumentalities and
industries is dependent upon power supplied by it ; and that a labor
dispute between the respondent and its employees which resulted
in the interruption of the respondent's operations would affect the
flow of large amounts of electrical energy across State lines, and
would seriously hamper, and in some cases paralyze, the operations
of railroads, telephones, and other instrumentalities of interstate
commerce and the operations of various industries engaged in inter-
state commerce.
'*The respondent did not waive its objection to the materiality of such testimony by
entering into the stipulation.
17 Included among these plants are : Goodyear Tire and Rubber Co . of Alabama ; Pepperall
Manufacturing Co.; Nestles Milk Products , Inc. ; Bemis Brothers Bag Co.; E. I. du Pont
de Nemours & Co.; and many textile mills and coal mines. Other concerns, not so
included, such as the Republic Steel Corporation and the Sloss -Sheffield Steel & Iron
Company ordinarily rely upon the respondent 's power but have substitute or supplementary
sources of power available to them.
18 Consolidated Edison Co., et al. v. National Labor Relations Board et al., 305 U. S. 197.
39 "... we can perceive no basis for inferring any intention of Congress to make the
operation of the Act depend on any particular volume of commerce affected more than
that to which courts would apply the maxim de minimus ." National Labor Relations Board v.
Fainblatt et al., 306 U. S. 601.
662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
The International Brotherhood of Electrical Workers is a labor
organization affiliated with the American Federation of Labor, ad-
mitting to membership all employees in the respondent's production
and distribution departments and power plants except office em-
ployees, general foremen, supervisory employees ranking higher than
general foremen, and superintendents of hydro-electric and steam
plants.
Alabama Power Company Employees' Representation Association
was an unaffiliated labor organization admitting to membership all
employees of the respondent who had been employed by the re-
spondent for at least sixty days, except employees identified with
the management of the respondent, such as executive officers, gen-
eral office department heads and assistants, division managers, man-
agers of districts serving more than 1000 customers, division super-
intendents and assistants, district superintendents, division sales
supervisors, division auditors, district auditors, chief load dispatcher,
plant superintendents and assistants, shop superintendents, and gen-
eral foremen.
Alabama Power Employees' Association is an unaffiliated labor
organization with a membership eligibility rule identical with that
of the Representation Association, set forth above.
Independent Union of Alabama Power Employees, Inc., is an in-
corporated, unaffiliated labor organization admitting to membership
all the respondent's regular employees except those identified with
the management, such as executive officers, general office department
heads, division managers, managers of districts serving more than
1000 customers, division superintendents, shop superintendents, and
general foremen, and those employees holding equivalent or higher
titles or positions with authority to hire and discharge.
III. THE UNFAIR LABOR PRACTICES
In our consideration of the unfair labor practices we are met at
the outset by the respondent's contention that the Board and the
I. B. E. W. are estopped from pressing the charges here involved
because two elections have been held at the instance of the I. B. E. W.
with knowledge of the respondent's activities with respect to the
Representation Association and the Employees' Association. The'
first of these elections was held in 1934 under the auspices of the
National Labor Board 20 between the I. B. E. W. and the Represen-
20 Set up in connection with Section 7 (a) of the National Industrial Recovery Act,
48 Stat. 195. See Public Resolution No. 44, 73rd Cong., and Executive Order of June
29, 1934, pursuant thereto.
ALABAMA POWER COMPANY 663
tation Association. Since this election was held pursuant to a law
other than that under which these charges are brought, the I. B. E. W.
is not estopped from pressing charges even if it then had knowledge
of the respondent's activities with respect to the Representation
Association. This Board had nothing to do with the 1934 election
and cannot be bound by the acts of another agency which was acting
pursuant to the terms of another law.
The second election was held under the auspices of this Board
pursuant to the consent of the I. B. E. W. and the respondent in
November and December 1937. The Employees' Association was not
on the ballot and took no formal part in the election. The I. B. E. W.
was defeated by about 84 votes in this election. While in the inter-
ests of the effective administration of the Act, the Board may, in its
discretion, refuse to issue an order when its agents have previously
represented to an employer that if he consents to an election pending
charges will not be pressed'21 the respondent here advances no evi-
dence that any such representations were made. Even where no
such representations are made, the Board has refused to consider
events occurring prior to a consent election where the union later
alleged to be dominated has appeared on the ballot and where the
employer, subsequent to the time it consented to the election, has not
engaged in unfair labor practices which show a continuity with
conduct and attitude prior to such consent. 22 Here the Employees'
Association did not appear on the ballot; moreover, as we find below,
the respondent continued its unfair labor practices after the election
of November 1937 and these practices were a continuation of the
unfair labor practices indulged in prior to that time. The Board
will therefore, in its discretion, consider evidence relating to unfair
labor practices engaged in prior to the election of November 1937.
We now consider such evidence.
A. Alabama Power Company Employees' Representation Association
1. The organization of the Representation Association
Prior to spring 1934, there was no labor organization among the
respondent's employees. In about March of that year the I. B. E. W.
initiated an organizing campaign, carried on largely by a group of
employees who had become interested in the I. B. E. W. The re-
spondent's attitude toward labor organization was by that time
already known to at least one of the individuals, J. C. McIntosh, who
21 See Matter of Oodchaum Sugars, Inc. and Sugar Mill Workers' Union, Locals No.
21W and No. 2188, 12 N. L. R. B. 568; Matter of Shenandoah-Dives Mining Company
and International Union of Mine, Mill & Smelter Workers, Local No. 26, 11 N. L. It. B. 885.
22 See Matter of Hope Webbing Company and Testile Workers Organizing Committee of
the C. I. 0., Local No. 14, 14 N. L. R. B. 55.
283029-41-vol. 18-43
664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was active in starting the I. B. E. W. organization. Around the
first of the year Superintendent Cox of Jordan Dam,23 in handing
to McIntosh a letter sent to McIntosh bearing the return address
of William Green of the American Federation of Labor, said, "McIn-
tosh, you realize that the company is opposed to organized labor."
McIntosh replied that he was aware of the respondent's attitude
and Cox warned him, "Now, I don't know what is in that letter, but
if I am called on for any information as regards organization at
this plant, I will have to tell them about this letter." 24
Late in March or, early April 1934, Superintendent of Production
Neeson told McIntosh that the I. B. E. W. could go ahead and com-
plete its organization if it liked but that if it did so there would not
be enough men left at Jordan Dam to hold a meeting.25 A few months
later, in June 1934, McIntosh was transferred from his position as clerk
at Jordan Dam to a job painting houses at the Gorgas steam plant.
Upon his arrival at Gorgas, McIntosh was informed by Superintendent
Lineberry that he knew McIntosh was an I. B. E. W. member, that
there was no need for labor organization at Gorgas, that the men
there would not be interested in the I. B. E. W., and that the I. B. E. W.
would not be successful on the respondent's properties. Lineberry
then introduced McIntosh to Foreman Packer, under whom McIntosh
was to work, and warned Packer that McIntosh was "full of I. B. E. W.
ideas." Be At about the same time Superintendent Cox asked R. R.
Wade to go to work early one day. When Wade arrived, Cox talked
to him about the I. B. E. W. and asked him not to join.
23 The superintendents of the respondent 's various plants are in charge of the plants and
personnel generally . They are under the supervision of Production Superintendent Neeson
and are themselves superior to the plant foremen, who are sometimes referred to as
"assistant superintendents." These superintendents , together with Division Superin-
tendents , are clearly important supervisory officials . Neeson is directly subordinate to
Vice-President Robinson , in charge of operations.
24 Cox did not testify . The respondent objected to the admission of this testimony
because it was not covered by the complaint and because the incident occurred prior to
the effective date of the Act. As to the first objection , it is valid only if the respondent
was not given an opportunity to rebut the testimony . In this case , however , at the close
of the Board's case , the respondent made a motion that the hearing be adjourned for
several days, in order that the respondent might have time to prepare its defense, and
the motion was granted . The respondent had an opportunity to meet the evidence and
was given a fair hearing . The objection as to the occurrence of the incident prior to
the effective date of the Act is without merit since such matters are necessary to an
understanding of the background and circumstances surrounding the formation of a
labor organization which continued after the effective date of the Act and which we find
below was the predecessor of another organization which existed for a considerable time
after the effective date of the Act. See N. L. If. B. v. Pennsylvania Greyhound Lines,
Inc., at at., 303 U. S. 261. During the hearing objections were made to other testimony
upon the same grounds. We do not feel it necessary to point out and deal with each
of these objections for in all cases where such testimony is relied upon , the above
observations apply.
a' Neeson testified that he did not make such a statement . However, in view of Cox's
and other supervisory officials' statements of the respondent's attitude toward labor
organizations , we are satisfied that McIntosh 's testimony , summarized above, is sub-
stantially correct.
01 Lineberry did not testify.
ALABAMA POWPIR COMPANY 665
During the spring of 1934 James Barry, the respondent's vice presi-
dent and general manager, was advised by the various division man-
agers 21 that I. B. E. W. organizational activity was going on in certain
parts of the respondent's system. On about June 1, 1934, Barry under-
took to draft a plan of employee representation with the aid of Vice-
President Robinson, Superintendent Neeson and McWhorter, the re-
spondent's general legal advisor. Barry testified that he undertook
the preparation of the plan because he had been advised by a number
of supervisors that the employees desired a plan of representation for
the purposes of collective bargaining,28 and that the National Indus-
trial Recovery Act had stimulated the employees' interest in collective
bargaining. The plan, as drawn by Barry, set up the Representation
Association. The organizational scheme of the Representation Asso-
ciation may be generally described as an employees' representation
plan. Under the, plan local departmental councils, such as the Account-
ing Department Council for the Northern Division, were to be elected.
One councilman was to be elected to these department councils for each
20 members in that department. The councilmen elected as chairmen
of each department council made up the Division Councils." The
chairmen of the various division councils made up the General Council.
The plan provided that each councilman be an employee of 1 year's
standing and that he forfeited his office upon his transfer or upon his
leaving the respondent's employ. The Departmental Councils were
empowered to negotiate with the respondent concerning matters re-
lating to employees of their respective departments; the Division
Councils were similarly authorized with respect to the employees in the
several divisions; and the General Council took care of matters of
interest beyond the scope of the Departmental and Division Councils.
27 The respondent , for purposes of administration , has divided its operations into six
geographical divisions , which are under the direction of the division managers for certain
purposes . It also divides its system into functional departments without reference to
geographical location , such as the production department , the distribution department,
and the like. Neeson , as already noted, is superintendent of the production department.
In about May 1934 Foreman 0. L. Heath told Division Manager Hunter that he had
been asked to join the I. B. E. W., that he was not particularly interested but that he
thought the employees needed some sort of organization , and asked Hunter if the respond-
ent intended to make any response to the employees ' demand for organization . Hunter
replied that he would take it up with "Birmingham" ( the respondent 's general offices)
and let Heath know. Hunter never advised Heath as to what he had done. At about the
same time, Herbert Ross, an employee , was given some I. B. E. W. literature. by one
Williams and a few days later Superintendents Neeson and Dawkins approached Ross
and inquired whether Williams had seen him and what Williams had had to say.
19 The Division Councils consisted of the Northern Division , the Eastern Division,
Western Division, Southern Division , Southeast Division , and Mobile Division which are
geographical divisions of the respondent 's system. The local Departmental Councils under
these divisions are generally the Accounting , Distribution , Local Operations and Service,
Sales, and Transmission departmental councils . In addition to these divisions the plan
sets up the General Office Division with six Departmental Councils under it, and the
Production Division Council. Under the Production Division Council are seven depart-
mental councils , each representing one or more hydroelectric or steam-generating plant.
666 DECISIONS OF NATIONAL LABOR RELAtrIONS BOARD
By the terms of the Barry plan, the reasonable and necessary ex-
penses of the Representation Association were to be paid by the
respondent and no dues or assessments were to be levied until a ma-
jority of the employees had so voted at a special election. The plan
made no provision for regular general membership meetings, although
such meetings could be called locally by the Departmental Councils,
divisionally by the Division Councils, and generally by the General
Council. In addition, divisional meetings or general membership (by
divisions) meetings could be called by membership petitions bearing
the signatures of 20 per cent of all members in the Division and in the
Representation Association, respectively.
The plan also makes provision for the arbitration of disputes with
the consent of the General Council and the management. The plan
was to take effect upon the vote of a majority of the eligible employees.
About July 30, 1934, Barry had packages of mimeographed copies
of the plan, together with a letter from himself to the employees, 30 sent
in bundles to the various divisions and district offices to be distributed
to the employees. The plan was presented to the employees by the
various superintendents and supervisors. At the Gorgas steam plant,
Superintendent Lineberry presented the plan to the employees and
informed them that he did not think the men needed "any form of
damn organization." He explained that he had attended a superin-
tendents' meeting where Barry had discussed the plan, and had told
Barry that if the respondent would restore the Christmas bonus and
give the employees a 10-per cent wage increase, he, Lineberry, thought
the "agitation" among the employees would stop. He further stated
that Barry had said that the respondent would have to give the em-
ployees some form of organization.
On August 9, 1934, an election was held in which the employees were
to indicate whether they wanted to be represented as proposed by
the Barry plan. This took place on the respondent's property during
working hours. The majority of all the employees voted to accept the
Barry plan. At the Magazine plant and in the Production Depart-
ment $1 generally, however, the vote resulted in the defeat of the plan.
Superintendent Ames of the Magazine plant then suggested to U. L.
Gibson, an employee, that the plan should be given a trial to see
whether the men could not obtain the results they desired through the
8° The letter advised the employees that an election would be held on August 9, 1934,
on two propositions :
(a) The question of whether the employees desire to organize for the purpose
of having representation for collective bargaining.
(b) The adoption of the tentative plan transmitted herewith as a basis for
initial operation, in the event organization is desired by a majority of the employees.
The letter also stated that prior to August 9, 1934, the employees in each department
should select three tellers to conduct the election.
31 The Production Department operates the power -generating plants and some of the
substations.
ALABAMA POWER COM'PAN'Y 667
plan and that Gibson present the matter to the other employees of the
plant in that way. The plan was then resubmitted to the men and on
the second vote they voted in favor of the plan. There was no re-
submission of the plan to the Production Department generally.
Shortly after the election, Foreman Pledger of the Gorgas plant
informed the employees that Superintendent Lineberry wanted to see
them in front of the office. When the men had assembled, Lineberry
announced the results of the election and said that the result was not
as favorable as he thought it should be; that he thought that Superin-
tendent Neeson did not deserve the slap he had received in the vote;
and that if the employees could not see the matter the way the re-
spondent saw it, he would work with them for 6 months or perhaps
a year or two but if they could not come around to the respondent's
view they could seek work elsewhere. 3- Thereafter most of the men
present at the meeting joined the Representation Association.
Membership in the Representation Association was evidenced by
the employees' signatures to a document stating that those signing
chose to become members. In at least two plants the superintendent
took the document to employees who had not signed and inquired if
they wished to join.33 One of these superintendents, Dawkins, told
an employee that it would look bad for his plant if the men did not
join. One employee, Heath, who was at that time a foreman in the
Distribution Department, did not join the Representation Association.
He was called into Superintendent Hulbert's office and was questioned
by Hulbert about his attitude toward the Representation Association.
Heath said that he did not care to join. According to Heath, Hulbert
then spoke of the I. B. E. W. and said, "We didn't need a bunch of
northerners to come down here and tell us southern people how to run
our business, and that we didn't need that organization, and asked me
which side I was on, the respondent's side" or the side of the I. B.
E. W.; and warned Heath that if he did not drop out of the I. B. E. W.
and join the Representation Association he would jeopardize his job
with the respondent .34
Superintendent Hollis of Mitchell Dam also continued to make the
respondent's attitude toward the I. B. E. W. clear to the employees
during the period when the Representation Association was being or-
ganized. On one occasion, when Hollis was away, McRae and seven
other employees at Mitchell Dam joined the I. B. E. W. On Hollis'
82 Gurley Hill testified that he knew of four men who had voted against the plan. Of
these, three are still working for the respondent. There is no evidence that the one no
longer working was discharged because of his vote on the plan. Two of the four became
members of the Representation Association. While it appears that the threat to discharge
employees who did not accept the respondent's views on the plan was not carried out,
the employees did not know at the time that the threat was made that it would not be.
83 Upon objection being made to this procedure at one plant by one of the tellers, the
document was destroyed and another one placed on the desk at the plant for the employees
to sign.
B4 Hulbert did not testify.
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
return, he was told by the plant foreman that as soon as he had left
8 or 10 men had joined the I. B. E. W. Hollis called these men into-his
office one by one. According to McRae, Hollis told him at his inter-
view that the men had made a "terrible mistake"; that they would not
have joined the I. B. E. W. if Hollis had been there; and that the
respondent was like a sturdy boat which had carried them through the
depression and the men had jumped off into a frail craft, the I. B.
E. W., and it would probably sink with them.35
Departmental councilmen were elected in August 1934. The chair-
men of the departmental councils which made up the Division Councils
and the chairmen of the Division Councils whoj made up the General
Council were elected shortly thereafter and the organization of the
Representation Association was complete.
While it is clear that the foregoing events, and other events recited
below, taking place prior to July 5, 1935, did not themselves constitute
violations of the Act, they reveal the respondent's course of conduct
over a period of years, the effects of which continued well beyond
the effective date of the Act. As a result, such events supply the
necessary background against which subsequent events may be more
accurately evaluated.
2. The Representation Association from September 1934 to August
20, 1935, and the organization of the Employees' Association
The first Production Division Council meeting was held in the re-
spondent's general offices in Birmingham on September 21, 1934. One
of the councilmen who had arrived early met Superintendent of Pro-
duction Neeson, who told him that the respondent would not recognize
the I. B. E. W. as a bargaining agency but would recognize the Repre-
sentation Association.36
Oz Hollis ' version of the conversation was that he had said that he was greatly surprised
that any employee who worked for him had thought he had to wait until he got out of
the plant to join any organization and that was what he had informed the men ; and that
he had spoken of the respondent as a sturdy boat carrying the men through the depression
but he had not said anything about the men jumping off Into a frail craft.
We do not see why Hollis found it necessary to discuss the respondent 's treatment of
the employees during the depression if he did : not mean to imply that the men had com-
mitted a disloyal act in joining the I. B. E. W. One, Parrish, who was apparently of the
same group , testified that Hollis had told him he was making a mistake in joining the
I. B. E. W. and that he, Hollis , would not do so if he were Parrish . We find that the
statement of the incident set forth above is substantially correct.
30 Neeson , although he testified , did not deny making this statement . Neeson's attitude
toward the I. B. E. W. is illustrated by the following incident . Sometime prior to July
5, 1935, Neeson had a conversation with Powell , an employee , concerning the I . B. E. W.
According to Powell , Neeson inquired whether Powell was one of the group of men who
had sent in I. B . E. W. applications . Powell said he was . Neeson then told Powell
that the respondent had Powell 's interest at heart and that he thought Powell was
making a , mistake and was building a fence between himself and the respondent . Neeson
advised him that if he had not already paid dues to the I. B. E. W. not to do so.
Neeson testified that while he had probably talked to Powell about the advantages
and disadvantages of the I. B. E. W. he had never questioned Powell 's right to join it.
Neeson denied that he had asked Powell whether he had sent in an I. B. E. W. application
ALABAMA POW'FJR OOM'PANY 669
Starting on September 29, 1934, the National Labor Board, at the
request of the I. B. E. W., held an election among the employees in the
various electrical departments to determine whether the employees
desired the Representation Association or the I. B. E. W. to represent
them for purposes of collective bargaining. This election lasted for
a number of days. In connection with and prior to this election, the
respondent paid the expenses of Representation Association council-
men who went to various plants and urged the employees to.give the
plan a chance to operate for 90 days and see what it could do for them.
The Chairman of the General Council also travelled about the system
electioneering at the respondent's expense. Just prior to the election
Superintendent Lineberry suggested to G. W. Kindley, an employee,
that he use his influence to get the men to "vote right" and said that
some of the men were going off at a tangent. Lineberry also stated
that if the men chose the I. B. E. W., it would not be a representative
of their own choosing, that representation would be out of the em-
ployees' hands. The Representation Association won the election.
Also in September of 1934, Herbert Ross, Jr., asked Superintendent
Dawkins for the use of the clubhouse at Martin Dam for an I. B. E. W.
meeting. The clubhouse is located upon the respondent's property
and is available to the employees for various social uses. Dawkins
refused to allow the I. B. E. W. to use the clubhouse. He testified at
the hearing that he did not allow it to be used since the respondent's
employees from other dams were to attend; that he viewed these other
employees as "outsiders" and the clubhouse was for the use of Martin
Dam employees only. Dawkins also testified that either in 1934 or
1935 he himself had held a Rotary Club meeting at the clubhouse which
was attended by some persons who were not employees of the re-
spondent at all. We are satisfied that the true reason for Dawkins'
refusal of the clubhouse to the I. B. E. W. was not that employees
from other dams were to attend the meeting but that Dawkins desired
to place an obstacle in the way of I. B. E. W. organizational efforts.
At that time and up to July 5, 1935, the Representation Association
held meetings in the first-aid room at Martin Dam. Thereafter, the
Representation Association used the clubhouse for its meetings. All
meetings of the various Representation Association Councils were held
during working hours in the plants and the respondent met all the
but admitted that he had probably told Powell that he was making a mistake, that the
respondent had Powell 's interest at heart. Neeson also denied that he had advised
Powell not to pay I. B. E. W. dues but stated that he may have asked Powell what dues
he was paying . While the two versions vary in their details, it is clear that Neeson at
least advised Powell that he was making a mistake in joining the I. B. E. W. since the
respondent had Powell 's interest at heart, and we so find.
Neeson's attitude toward the I. B. E. W. is further illustrated by his statement to
McIntosh in May 1935 , that McIntosh could not expect a better job with the respondent
so long as he was an I. B. E. W. member.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
expenses of the elections and other business of the Representation As-
sociation incurred prior to July 5, 1935.
In the latter part of October 1934 the respondent entered into nego-
tiations with the Representation Association with respect to a contract
governing wages, hours, and working conditions. A separate agree-
ment governing the production department was also negotiated. The
record is not entirely clear as to how the negotiations were carried on
but it appears that the Production Division Council ultimately ac-
cepted a proposal made by Superintendent Neeson.
In addition to the negotiation of the wage agreement the Repre-
sentation Association carried on individual grievance work. Ross
was chairman of the Production Division Council from August 1934
until April 1935 and was active in the grievance work. He was also
a member of the I. B. E. W. until shortly after the I. B. E. W. lost
the election in September and October 1934. On one occasion in
November or December 1934, Ross' superior, Dawkins, returned from
a meeting of superintendents and told Ross that the superintendents
in the production department were "cussing out" Ross because of these
activities. Dawkins testified, and we find, that he told Ross that the
superintendents at the meeting had accused Ross of going around and
"drumming up" grievances; that Dawkins thought it would be more
satisfactory if Ross waited until grievances came to him instead of
going around and asking the men if they had any grievances; that
the superintendents felt that Ross was not handling grievances in the
manner provided by the plan; and that for Ross' own good it would
be well to handle grievances as the Plan provided.
The record discloses nothing material concerning the activities of
the Representation Association from this time until May 1935. On
May 17, 1935, the General Council appointed a committee to rewrite
the Representation Association's constitution, the Barry plan, in order
to make it conform to the Act, which was then pending before the
Congress. The Committee prepared a draft of an amended plan.
One member of the committee, Howard Williams, submitted the draft
to McWhorter, the respondent's attorney, to get his advice upon the
wording of one section. McWhorter made a few changes in the word-
ing. The proposed amended plan was then mimeographed upon paper
provided by the respondent and with the respondent's machines. At
the same time the committee prepared and mimeographed, with the
respondent's machinery and stationery, a letter submitting the
amended plan to the members and a ballot form for use in the vote
upon the amendment.37 Williams, a committee member, then spent
37 Howard Williams , a member of the committee , testified that the committee mimeo-
graphed these documents in June 1935 , prior to their approval by the General Council,
because it desired to have the respondent meet the expenses involved . He could not
ALABAMA POWER COMPANY 671
about a week in touring the system and getting the approval of various
division councilmen to the proposed amendment. The petition of 20
per cent of the members for an amendment is required by the Barry
Plan. The respondent paid Williams for the time spent in this
distribution and paid the expenses incidental thereto.38
On July 9, 1935, the General Council met in the Alabama Power
Building, Birmingham, voted to hold an election upon the amendment,
and approved the explanatory letter and ballot already prepared by
the committee. The minutes of the meeting also disclose that
McWhorter, the respondent's attorney, was called in to the meeting to
interpret some of the provisions of the Act; that the secretary of the
General Council was then instructed to write a letter to Barry advis-
ing him that no expenses incurred after the effective date of the Act
would be certified to the respondent for payment; and that a pro-
posal 39 for a general wage increase was taken up with Barry, who
promised that the General Council would have an answer on the
proposal shortly.
Copies of the proposed amended plan were then sent out to the
Division Councilmen for distribution to members of the Representa-
tion Association, with the letter advising that an election would be
held upon it on August 20, 1935. Some meetings were also held to
explain the amended plan to the employees. On July 14 or 15, 1935,
Councilman McRae went to Gorgas to hold such a meeting. Either
Northcutt or Kindley, employees active in the Representation Associa-
tion, told Superintendent Lineberry of the expected visit and Line-
berry gave the Representation Association his permission to have the
meeting held during working hours. McRae addressed the men and
told them it was necessary to amend the Barry plan because of the
passage of the Act. At about that time Lineberry told Northcutt
recall that the committee had been advised that the respondent would not or could not
pay for this work at a later date . Lamar Aldridge , the respondent 's treasurer , testified
that prior to the passage of the Act, he and Vice -President Barry decided that if the
Act passed, the respondent could not continue to pay the expenses of the Representation
Association . Barry testified that this decision was not communicated to the Representa-
tion Association.
ss The trip was completed prior to the effective date of the Act.
as The proposal was in the form of a letter to the respondent 's president and vice presi-
dent which set forth arguments in favor of a wage increase and included the recommenda-
tion that the respondent:
"Seriously consider our statement that this Council and Representation Asso-
ciation is threatened with destruction or replacement by outside labor organizations
unless some outstanding and significant move is sponsored and encouraged by this
Association and our Management."
Barry 's reply was delivered to the wage committee , which was appointed by the Repre-
sentation Association , in July or August 1935. Barry explained the reasons why the
respondent could not give a general wage increase at that time and with respect to the
above-quoted recommendation , pointed out that it was unsound ; that if the employees
did not believe in the Representation Association they could change it ; and that the
respondent hoped that the fears of the Representation Association were groundless and
that the organization would be preserved.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that if all the employees would get behind the Representation Asso-
ciation it could be made to work without having any outside organi-
zation 40
The election on the amended plan was held on August 20, 1935.
Ballot boxes were placed around the respondent's plants and at least
some employees cast their votes during their working hours. The
constitution, as altered by the amendment, was adopted.
The amendment made only two substantial changes in the Repre-
sentation Association; namely, in changing the name of the organiza-
tion to Alabama Power Employees' Association and in providing that
if payment of expenses by the respondent should constitute a violation
of any valid provision of law, the General Council. should then have
authority to assess membership dues at the rate of 15 cents a month.
The amended plan provided that the incumbent officers and council-
men of the Representation Association should remain in office until the
next annual election. Other changes of a minor character, which in
no way altered the general organizational scheme of the Representa-
tion Association, were also made but many of the provisions of the
two constitutions are identical.
On August 20, 1935, with the acceptance of the amended constitu-
tion, the Employees' Association came into being and the Representa-
tion Association was considered dissolved.
3. The Employees' Association from August 20, 1935, to July 23; 1938
Officers and councilmen of the Representation Association con-
tinued to act as such for the Employees' Association.41 They con-
tinued to use the Representation Association books and records and
carried to completion the negotiation of an agreement with the re-
spondent, originally initiated by the Representation Association.
The Employees Association's General Council and Production Divi-
sion Council continued to meet in the respondent's building in Bir-
mingham until May 1937. Many of the Departmental Councils con-
tinued to meet and hold elections upon the respondent's property, in
some instances in superintendents' offices during working hours, as
late as April 1938. The Employees' Association officials likewise
continued to use the respondent's stationery and had minutes of some
of the council meetings typed by the respondent's stenographers.
40 About 2 weeks later Lineberry told Northcutt that the I. B. E. W. affected the re-
spondent as would the shaking of a red rag in a bull's face and that the Representation
Association affected the I. B. E. W. In the same way.
1 New officers and councilmen were elected in April 1936. Robert Klein was elected as
chairman of the General Council shortly thereafter and continued to hold that position
until May 1938. Klein was a cashier in the general office in Birmingham and handled
the respondent 's general cash book. He had authority to recommend the hiring and
discharging of employees in his department.
ALABAMA POWER COMPANY 673
The expenses of the election of August 20, 1935, conducted by the
Representation Association were ultimately paid by the Employees'
Association out of dues collected by it. Shortly after the election,
the Employees' Association requested the respondent to deduct dues
from the salaries of the employees. The respondent agreed to insti-
tute a "check off" system but informed the Employees' Association
that deductions could be made only upon the basis of individual
authorizations signed by the employees. The Employees' Associa-
tion then had membership application cards printed which had at-
tached to them authorizations for the deduction of Employees'
Association dues from the salary due to the signer. An applicant ordi-
narily signed both cards.42 Distribution of these cards by the em-
ployee representatives among the employees started about August 31,
1935.43 Solicitation in behalf of the Employees' Association was
undertaken by at least one supervisor, F. J. Springer, foreman of
the substation maintenance crew, who was at that time the chairman
of his Division Council. Springer handed out the cards to the men
in his crew and others and asked them if they wished to sign. The
men signed the cards and returned them to Springer who completed
filling them in. Springer testified that he filled in 40 or 50 applica-
tion cards in this manner.
As already indicated, the Employees' Association continued to
function in much the same manner as had the Representation Asso-
ciation. It negotiated contracts with the respondent and undertook
the settlement of individual grievances. During the active exist-
ence 44 of the Employees' Association the respondent's officials made
clear to the employees that they would do well to refrain from
I. B. E. W. activity, and to join the Employees' Association.-
During the year 1936, Superintendent Neeson inquired of McDaniels,
an employee, whether he belonged to the I. B. E. W. When McDan-
42 Persons on commission rather than a straight salary did not sign the authorizations.
3 During 1936 , Employee Representative Maxwell asked James Farrar to join and,
when he refused , Maxwell asked why and wrote down the answer which Farrar gave.
Farrar inquired why be did that and Maxwell replied that he wanted to turn over the
answers to Superintendent Neeson when he returned from Mobile and that he had also
written down the replies of other employees . Subsequently , Farrar asked Maxwell whether
he had given the information to Neeson . Maxwell said that he had and that Neeson had
read the material and had requested that the employees ' replies be turned over to him.
Neither Neeson nor other supervisors spoke to Farrar about his failure to join the
Employees ' Association or his reasons therefor.
Neeson denied that he had requested Maxwell to get the information but did not deny
that he had received such information from Maxwell . We find that Maxwell gave Neeson
the information.
"There is a conflict in the testimony as to whether the Employees ' Association is still
in existence . This matter is discussed below.
" There is evidence that these officials were instructed not to interfere with labor
organization and not support any union . The general instructions , unless they were
followed, are immaterial . The activities of supervisors are coercive irrespective of
whether they are carried on pursuant to, or in violation of, instructions . The respond-
ent is not absolved from its responsibility for the acts of its agents merely because they
were contrary to instructions.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iels replied in the affirmative, Neeson advised him that it would be
best not to belong; that the respondent would do more for him if he
were not an I. B. E. W. member; and that the payment of I. B. E. W.
dues was just a waste of money.46
In late June 1936, Superintendent Lineberry asked F. F. Hyche,
an employee, whether he had joined the I. B. E. W. Hyche said
that he had applied for membership. Lineberry told Hyche that he
had been coming to Lineberry for advice on other matters but if the
I. B. E. W. went on strike, he, Lineberry, would be through with
Hyche; that Hyche should join the Employees' Association and
"build himself up" with the respondent. When Hyche replied that
he had not joined the I. B. E. W. because he was "against" the re-
spondent, Lineberry explained that Hyche was either for or against
the respondent since he could not "serve two masters." During the
summer of 1936, Superintendent Hall inquired from Mussleman, an
employee, what benefit he expected to derive from the I. B. E. W.
and expressed the view that the only persons benefited by that or-
ganization were its International officers, that it was "all hokum"
about the rank and file receiving any benefit. After advising Mus-
sleman that he could do his fellow workers more good by working
hard in the Employees' Association, Hall cautioned him that he
need not expect any good jobs with the respondent if he stayed in
the I. B. E. W. Mussleman replied that he did not believe that Hall
or his assistant would discriminate. Hall answered, "Yes, but un-
fortunately, we are not the Alabama Power Company."
Sometime during the latter part of 1936, or in 1937,47 Superin-
tendent Lineberry inquired of John Walker, an employee, "John,
have you heard about our union." Walker said he had not. Line-
berry said, "Well, we got a union, John, you can join it if you want
to. It will cost you 15 cents a month." The amount of dues men-
tioned clearly indicates that it was the Employees' Association to
which Lineberry referred.
In February 1937, Superintendent Dawkins said to Romine, an
employee, that he understood that Romine had withdrawn from the
Employees' Association, and that he was sorry Romine had done so.
Dawkins advised Romine that so far as he, Dawkins, was concerned,
Romine could belong to anything he wanted to but that Dawkins felt
that the respondent would rather that Romine did not belong to the
' Neeson denied that he had ever discussed the I . B. E. W. with McDaniels in the year
1936, and testified that he never discussed the I . B. E. W. with any of the men after
the effective date of the Act. The views expressed are those Neeson is said by other
employees to have expressed to them and we find no reason for questioning McDaniels'
recollection of the date of the conversation . We find that the above statement Is
substantially correct.
•4 The witness was not certain of the date but was sure that it was subsequent to 1935.
ALABAMA POWER COMPANY 675
I. B. E. W.48 On May 6, 1937, Fred Mayfield, an I. B. E. W. mem-
ber, and two friends paid a visit to Lay Dam where S. R. Powers
is the superintendent. On his way out of the plant, Mayfield met
Powers who said to him, "Mayfield, I would rather you fellows
wouldn't come up here trying to organize my men."
Shortly prior to an election held by the Board in November and
December 1937, discussed below, McRae, accompanied by W. S. Par-
rish, another employee, went to visit the Rotary Substation at Mont-
gomery, where Pete Chambliss was foreman. At that time Chambliss
informed McRae, in the presence of several employees of the sub-
station, that he, Chambliss, was doing everything in his power to
fight the I. B. E. W.; that the I. B. E. W. was misrepresenting the
facts when it said that the management was not antagonistic to the
I. B. E. W.; and that the respondent's, vice president, Coleman, had
said at a banquet that the respondent did not need the I. B. E. W.,
since the Employees' Association was filling the bill 49
The respondent's attitude toward the I. B. E. W., and its freedom
in allowing the employees to be aware of that attitude, is further
demonstrated by a letter sent on September 13, 1937, to Superintend-
ent Dawkins by District Manager Kittredge. The letter reads as
follows :
Mike Neeson [superintendent of production] told me the other
day that you and Winn [an employee] thought I was responsible
for getting Winn sent back to Martin Dam, and he said he told
you that I had nothing to do with it which was true.
I think this may have started from something I said to Mr.
Thigpen [an employee] one day when we were discussing union
activities, before I found out that Thigpen was active in it [the
I. B. E. W.]. I was talking to him about Winn keeping after
S8 Dawkins ' version of the incident was that the I. B. E. W. was discussed only with
reference to its insurance program and that he had not told Romine that he felt that the
respondent would prefer that Romine not join the I. B. E. W. In view of our findings
above and below as to what various supervisors had stated the respondent ' s attitude to
be, both before and after this time, we find that the version of the incident given above
is substantially correct.
49 The version given above is McRae's . Chambliss testified that the visit took place
shortly before the election conducted by the Board in the fall of 1937; that a number
of men from the hydroelectric plants had visited the substation during that period and he
so informed McRae ; that he, Chambliss , knew what McRae was there for and he was
going to vote against the I. B. E. W.; and that he had told McRae that he "was going
to do all the harm" to the I . B.. E. W. that he could. Chambliss denied that he had said
that the I. B. E. W. was misrepresenting when it said that the management was not
hostile to it and that he had quoted Coleman to the effect that the Employees ' Association
was filling the bill . Chambliss could not recall that Coleman's name was mentioned.
Chambliss also testified that there had been no banquet or meeting with the respondent's
officials in years. W. S. Parrish , who was also present at the interview , substantially
corroborated McRae's version of the interview . We find, therefore , that McRae 's version
of the interview is substantially correct but our finding does not go to whether or not
Coleman in fact made the statement attributed to him at the interview by Chambliss.
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
our boys trying to induce them to join [the I. B. E. W.] and I
remarked to him that it might be a good thing to send Winn
back to Martin Dam, but that is as far as the thing went.
As stated above, pursuant to a request made by the I. B. E. W.,
the Board, with the respondent's consent, on November 29, 30, and
December 1, 1937, held an election among the employees of the re-
spondent to determine whether or not they desired to be represented
by the I. B. E. W.60 The I. B. E. W. was defeated in the election
by 84 votes out of the 1,186 votes counted.
Shortly after the election, Superintendent Winston informed
McIntosh that he personally did not care to what organization the
men belonged but that he thought there was no question that the
respondent would prefer to deal with the Employees' Association
"as they had it" rather than with the I. B. E. W. A further illustra-
tion of the respondent's continued assistance to and interference with
the Employees' Association is the conversation between R. C. Gaunt
and Superintendent Hall. Gaunt had been active in the Employees'
Association but resigned on February 1, 1938. He had joined the
I. B. E. W. some months earlier. At about the time of his resigna-
tion from the Association, Hall asked Gaunt how he expected to get
anywhere riding two horses. He also stated that Gaunt had some
Employees' Association records which he had been requested to re-
turn and accused Gaunt of having turned them over to the I. B. E. W.
instead. Gaunt, as a matter of fact, had not turned the records over
to the I. B. E. W.
On June 29, 1938, the respondent replied to the Employees' Asso-
ciation's request for a meeting to negotiate a new contract by in-
forming it that charges had been filed by the I. B. E. W. alleging
that the Employees' Association was dominated and supported by
the respondent, and that in view of the charges the respondent be-
lieved it inadvisable to meet with the Employees' Association. The
Employees' Association took no immediate action with regard to this
letter or the information contained therein.
4. The Employees ' Association and the Independent , from July 23,
1938
On July 23, 1938, R. B. Freeman,61 a member of the Employees'
Association, called a meeting in Birmingham of employees selected
60 The Employees ' Association informed the Board that it did not desire to have its
name placed upon the ballot . Both the Employees ' Association and the I. B . E W. were
active in campaigning for the election , attempting to persuade the employees to vote as
the particular organizations desired. There is evidencE : in the record that Line Foreman
Overton was requested to use his influence with his crew to get them to vote in favor
of the I. B. E. W. but there is no evidence that he did so. A line crew usually consists
of 7 or 8 men.
01 Also referred to in the record as R. B . Freedman.
ALABAMA POWER COMPANY 677
from various localities, of whom many were members of the Em-
ployees' Association. At this meeting the Independent was organ-
ized. One of the employees invited to the meeting was Marshall
Blackmon, who subsequently became the president of the Independ-
ent. On July 19, 1938, Freeman telephoned Blackmon and asked
him to meet him, Freeman, on July 23, 1938, in the Thomas Jefferson
Hotel in Birmingham. Blackmon asked Freeman what it was "all
about" and Freeman said that he would tell Blackmon when he saw
him. Blackmon testified that he had assumed that the meeting was
about a union although he had no reason for making the assumption.
Similarly, S. W. Templin'52 who became one of the vice presidents
and secretary-treasurer of the Independent, was invited to attend by
Freeman and was told that he would find out. what it was about when
he arrived. About 12 employees and Rice, an attorney, attended the
meeting. Rice had previously been retained by the Employees' As-
sociation in connection with the election held under the auspices of
the Board in November 1937 and continued to represent the Em-
ployees' Association during the summer and fall of 1938. Freeman
informed Heath, who inquired how the Independent happened to
retain Rice, that Rice was retained by Freeman upon the recommen-
dation of Howard Williams, treasurer of the General Council of the
Employees' Association.
The meeting was opened by Freeman, who stated that the purpose
of the gathering was to organize an independent union which would
meet the requirements of Federal and State laws. He explained that
he had consulted Rice, had requested him to draw up a constitution,
and had then called together those present as representative persons
from each division to go over and ratify the constitution drawn by
Rice. Freeman said that the Employees' Association was going to
be "thrown out," because the charges made by the I. B. E. W. would
be upheld by reason of the fact the Employees' Association was "de-
rived" from the Representation Association. Rice also spoke and
said that it was necessary to have a workable organization in the
event that the Employees' Association were ordered disestablished
by the Board because the Board, if there were only one labor or-
ganization in existence, would then "recognize" the I. B. E. W. as
the exclusive bargaining agency without reference to whether or not
it represented a majority. The constitution thus presented was
adopted at the meeting after some changes had been made. It has
never since been accepted by the membership of the Independent or
by representatives designated by the membership. In addition, of-
ficers were elected at the meeting, to serve one year or until their
52 Templin is the local manager of the Sylacauga substation, in charge of three other
men.
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
successors were elected.63 A resolution was adopted that the name
of the organization should be Independent Union of Alabama Power
Employees, Inc., and that it be incorporated. Provision was made for
monthly dues of 25 cents. On July 27, 1938, incorporation papers
for the Independent were filed. On July 30, 1938, the officers of the
Independent distributed a letter to employees announcing formation
of the organization, enclosing a copy of its constitution, and soliciting
the employees to join .54
About August 1, 1938, Blackmon telephoned Lyle, the chairman of
the General Council of the Employees' Association and inquired as
to the status of the Employees' Association. Lyle informed Black-
mon that the Employees' Association was not negotiating with the
respondent, that things were at a "standstill." On August 11, 1938,
the Employees' Association sent out a letter to its members informing
them inter alia that charges involving it had been filed with the
Board, denying that the Employees' Association was dominated or
supported by the respondent, and stating that the Employees' Asso-
ciation had requested from the respondent that if the respondent
should stipulate with the Board to withdraw recognition from or
disestablish the Employees' Association, the respondent retain the
right to advise the employees concerning the basis for such action.
On August 24, 1938, the Independent sent out a letter, signed by
Blackmon, to all employees, soliciting membership in the Independent
and stating :
... the [Employees'] Association has successfully represented
the majority of the employees without coercion or interference
from anyone.
Now after two elections in which the majority of the em-
ployees have signified their desire not to be represented by any
outside labor organization, the I. B. E. W. has filed charges with
the N. L. R. B. charging the Alabama Power Company with
unfair labor practice arising out of its relationship with the
Alabama Power Company Employees' Association ... These
charges,. as we understand them (and it is the opinion of competent
counsel), are sufficient grounds for the Labor Board to order the
company to cease and desist negotiating with the ... Employees'
Association ... if any one of these charges is sustained by the
63 The same • officers were holding office at the time of the hearing, no election having
been held in September 1938 as required by the constitution because the Independent had
no money to pay for an election.
64 On August 4, 1938, a second letter was sent out by the Independent to employees
explaining that the organizers of the Independent had acted because of their feeling that
"in view of certain charges having been filed by the I. B. E. W. with the N. L. it. B.
.. . which charges , if sustained , would automatically disestablished the . . . Employees'
Association , therefore leaving the employees without any majority bargaining whatsoever."
ALABAMA POWER COMPANY 679
Labor Board, that would automatically disestablish the Em-
ployees' Association as our majority bargaining agency, which
would, of course, leave the employees without majority repre-
sentation....
... we are now again being forced to decide who shall bargain
for us. The answer should be, as has been in the past two elec-
tions, the independent employee representative type of labor or-
ganization. This Independent Union has preserved for the em-
ployees the right to select who shall represent them to the
company on matters of wages, hours, [etc.]... .
I have been a member of the . . . Employees' Association since
its organization, and definitely know that through its efforts it has
received a better wage agreement and many worthwhile accom-
plishments that could not have been negotiated by any other
bargaining agency.
I have discussed with the chairman of the . . . Employees'
Association the status of the old organization, and he informed
me that it would definitely disband and that no further dues
would be collected. His letter to each of you, [the letter of
August 11, referred to above] he said, was to let you know that
the old organization was not tucking its tail and running, but was
emphatically denying charges made by the I. B. E. W.... The
chairman has already made application for membership in the
new organization [Independent]. (Italics supplied.)
This letter was prepared with Rice's assistance as was all literature
sent out by the Independent.- Templin, the secretary of the Inde-
pendent, attended to the mailing of the letters to prospective members
whose names, according to his testimony, he procured from the roster
in the Employees' Association office 56 to which he had access as a
councilman in the Employees' Association from the engineering de-
partment. Late in July 1938, the Independent arranged with the
Employees' Association, through Williams, to use space in the Em-
ployees' Association office and to pay rent therefor for about a week.
Subsequently, on October 1, 1938, the Employees' Association gave
up the office space and the Independent took it o'er. 57
Other letters were sent out from time to time soliciting the support
of the employees for the Independent. One of these letters was sent
55 No provision was made for the payment of Rice's fee . According to Blackmon, Rice
was taking a chance upon the success of the Independent.
Ge The Employees ' Association took office space on June 14, 1937. Prior to that time
its records were kept in the respondent 's building and it received mail from the respond-
ent's mail box.
e7 From August 25. 1938, until October 1, 1938, the Independent rented oilier office
space.
283029-41-vol. 18--44
680 DECISIONS OF NATIONAL LABOR RELATIONS BOARL
to- S. R. Watson, superintendent of the Anniston District. Watson
replied, in a letter to Blackmon, as follows :
A few days ago I received a letter from you dated Sept. 19,
1938, in which you invited me to sign an application for mem-
bership in the Independent . . . I believe that this must have
been an error in addressing . Heretofore in my capacity as Su-
perintendent of the Anniston District . . . I have been barred by
the rest of the employees from membership in their unions. I
believe that was a reasonable ruling on their part and it seems
to me that the ruling should still apply. However, if I am
wrong and my membership would be of any value to the rest
of the employees I will be only to (sic) glad to help.
Personal solicitation of membership in the Independent was also
carried on by those interested in the organization. They were as-
sisted in this solicitation by the actions and attitudes of some of the
respondent's supervisors. High-line foreman, R. L. Winn, received
Independent literature from Templin and took it around to the houses
of the members of his crew in July or August 1938. On August 8,
1938, after he had become a member of the Independent, Winn ac-
companied Templin and another person active in the Independent to
an Independent organizational meeting held in the home of J. R. Hall,
Jr.,", then Employees' Association councilman from Martin Dam.
This meeting was also attended by E. C. Milton, plant foreman of
the, Upper Tallassee and Thurlow Dams.69 Winn addressed the meet-
ing, spoke in favor of the Independent, and told of grievances which
had arisen among the members of his crew and which had been
handled by the Employees' Association.
R. L. Winn's brother, W. D. Winn, a line foreman, during the noon
hour on August 12, 1938, was filling out his. own Independent appli-
cation card 80 in the respondent's local office and told two or three
members of his crew who were present that those who cared to join
the Independent might do so and that he would mail in their cards
with his own. W. D. Winn also filled in a portion of one Rhodes'
58J. R . Hall , Jr., is the clerk of the respondent 's three hydroelectric plants located
on the Tallapoosa River.
69 A plant foreman of a hydroelectric plant is also commonly referred to as an "assistant
superintendent ." Plant foremen have the same powers as other foremen . They are in
charge of the plants in the superintendent 's absence , and can make recommendations
concerning the hire or discharge of employees, the final word on such matters being
reserved to E. W. Robinson , vice president in charge of operations , and S . M. Barry,
vice 'president and general manager.
80 These application cards are almost identical with those used by the Employees'
Association and were copied from the latter . Attached to them are authorizations to the
respondent to deduct Independent dues from salary due the employees , identical with
those used by the Employees ' Association . These authorizations have not been presented
to the respondent.
ALABAMA POWER COMPANY 681
card at the latter's request. All the other members of W. D. Winn's
crew had by then filled out their cards. At this time W. D. Winn
was a councilman in the Employees' Association and testified that
as far as he then knew the Employees' Association was still active.
A substation maintenance foreman, J. O. Summers, distributed In-
dependent application cards to the members of his crew. Early in
August 1938, Vernon Taylor was given an Independent application
card by his superior, W. H. Murray."' Murray told Taylor to look
it over and if it suited him to fill it out and give it to Arthur Abels,
who was in charge of the service department at Gadsden. At about
the same time, C. E. Packard, foreman in the turbine room at the
Gorgas plant, asked Chester Jackson whether he had yet joined the
Independent. Jackson said that he had not, that he wanted to know
more about it first. Packard replied, "Well, the main thing is to
keep the I. B. E. W. out of here. Ninety or ninety-five percent of
the members of the Independent Union had rather not have any
union at all, but they would rather have a company union than have
the I. B. E. W." 62 That this was the attitude of the Independent
members is shown by the testimony of Blackmon, president of the
Independent, who admitted at the hearing that the presence of the
I. B. E. W. in the respondent's plants had some effect upon himself
and the other organizers in coming to a decision to organize the In-
dependent, although it was not "necessarily" one of the main reasons
for organizing the Independent.
On September 1, 1938, Lyle, chairman of the General Council of
the Employees' Association, acting upon the advice of Rice, wrote
the respondent as follows :
After due consideration of all the circumstances regarding the
relationship of this Association with Alabama Power Company,
it has been decided to advise that effective immediately this
Association will not negotiate further with the Company, as
the majority bargaining agent for their employees... .
You are also advised that this Association will not request any
further pay-roll deductions for membership dues.
61Murray was an Employees ' Association councilman in June 1937 . His term expired
in April 1938.
ea Packard denied that any such conversation had taken place . He also testified that
Jackson's general reputation for truth was bad, that Jackson had made a number of mis-
statements . Jackson testified that immediately . after the conversation he made a memo-
randum of the conversation . This memorandum was introduced into evidence. The
memorandum gives a version substantially similar to that given in the text above, which
is a quotation of Jackson 's oral testimony . The Trial Examiner , who observed the be-
havior of the witness on the stand , found that Jackson's testimony was truthful. We see
no reason to question the memorandum made by Jackson shortly after the conversation
and we find that the version of the conversation appearing in the text above is substan-
tially correct.
682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On September 7, 1938, the respondent replied to Lyle's letter and
pointed out that the deductions were made upon the basis of in-
dividual authorizations and not upon the basis of an agreement
between the Employees' Association and the respondent. On Sep-
tember 8, 1938, the Employees' Association replied and advised the
respondent that it would not receive any "monies representing pay-
roll deductions . . . whether the employees have withdrawn their
requests and authorizations or not." The respondent then sent out
notices to the employees notifying them that it had been notified by
the Employees' Association that it would receive no further pay-roll
deductions in payment of dues and that the respondent could there-
fore no longer comply with the authorizations to make deductions for
this purpose. The total amount deducted from salaries and paid
over by the respondent to the Employees' Association for dues dur-
ing the period that the check-off was in effect amounted to $7,115.40.
Lyle testified that this action was taken pursuant to the authority,
to take whatever action Rice recommended, vested in him by the
General Council at an informal meeting, sometime in August 1938,
at which five out of seven councilmen were present. No regular
meeting was held for the purpose. Williams, treasurer of the Em-
ployees' Association, testified that the only activities carried on by
the Employees' Association after June 30, 1938, were the administra-
tion of the health and accident insurance program and the hospitali-
zation insurance program, which were sponsored by it. Williams
further testified that no official of the organization had discussed
with him the question of financing it after June 30, 1938.
Although there is conflicting evidence in the record as to whether
or not the Employees' Association is still in existence, it is clear and
we find that the Employees' Association ceased to act as a repre-
sentative of the employees for purposes of collective bargaining with
regard to wages, hours, and other conditions of employment on or
about September 1, 1938. It is also clear that thereafter the Em-
ployees' Association continued to exercise its functions with regard
to insurance programs, of which it was the sponsor.
On September 9, 1938, the Independent wrote to the respondent
advising it that the Independent had been organized, that a majority
of the employees were expected to join, and that when they had done so
the Independent would request recognition. A copy of the Independ-
ent's constitution and bylaws was enclosed. On October 14, 1938, the
Independent wrote to the respondent claiming to represent a majority
of the employees and requesting recognition as bargaining agent for
the employees. On October 17, 1938, the respondent replied that a
complaint had been issued by the Board against the respondent alleg-
ALABAMA POWER COMPANY 683
ing that it had assisted in the formation of, and had contributed sup-
port to, the Independent; and that in view of the pending complaint,
the respondent thought it inadvisable to recognize the Independent
until further developments on the complaint."
5. Conclusions
It is clear from the record that the Representation Association was
originally set up by the respondent; that it received complete finan-
cial support from the respondent from its inception until July 5,
1935, that all its meetings were held upon the respondent's premises,
usually during working hours; and that the respondent's other
property was used freely by'-'the Representation Association in the
conduct of its business. It further appears and we find that the
respondent's purpose in setting up and continuing to support the
Representation Association was to counteract the organizational
activity of the I. B. E. W. That this was the respondent's purpose
is shown by the fact that the Representation Association was organ-
ized at the time when the I. B. E. W. was becoming active in its cam-
paign for membership; by the respondent's hostility to the I. B. E. W.,
as demonstrated by numerous remarks of supervisory officials to that
effect; and by Superintendent Lineberry's statement to the employees
under his supervision that he had told Barry that if the respondent
would restore the bonus and give a wage increase he thought the
"agitation" among the employees would stop and no form of repre-
sentation would be necessary. That the respondent was deeply inter-
ested in the adoption of the Barry plan is further indicated by the
activities of Superintendents Ames and Lineberry in connection with
the employees' election upon the acceptance or rejection of the Barry
plan. It will be recalled that Ames had the plan resubmitted to a vote
when the first vote resulted in the defeat of the plan at the Magazine
plant and that Lineberry warned that if the employees could not see
the question of the plan as the respondent saw it, they would sooner
or later have to seek work elsewhere. That the superintendents were
acting pursuant to the respondent's well-understood policy that the
plan was to be the form of employee representation to exist in its
system, and as such was to be, accepted by the employees, is demon-
strated by Superintendent Dawkins' statement that it would "look
bad" for his plant if the men did not join.
m The Independent claims to have over 1,100 members , of whom 60 per cent are said to
be employees classified as field or physical workers. 1,191 employees voted in the elec-
tion held in November 1937 under the auspices of the Board. The record does not disclose
the total number of employees who were entitled to vote in this election . The record
does show that it was not unusual for an employee to be a member of the I. B. E. W.
and at the same time to be a member of the Representation Association or the Employees'
Association , but it does not indicate whether there are many employees who belong both
to the I. B. E. W. and the Independent.
684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The foregoing, together with the pressure put upon employees to
join the Representation Association by superintendents in at least two
plants, and the continued expression of the respondent's hostility to
the I. B. E. W. by supervisors, indicate clearly that the Barry plan
was forced upon the employees and was in no sense their free and
untrammelled choice. Nor was the election of September 1934 held
by the National Labor Board a much better test of the employees'
desires in the matter of representation. - The respondent interfered
with and attempted to influence the results of this election by bearing
the expenses of the Representation Association's campaign, by urging
the employees to give it a 90-day chance, and by Lineberry's sugges-
tion that Kindley use his influence to get the men to "vote right." In
view of Lineberry's outspoken attitude of hostility to the I. B. E. W.,
we entertain no doubt that he intended that the men should vote in
favor of the Representation Association. In addition to the forego-
ing, the respondent further clarified its hostility to the I. B. E. W.
and favoritism to the Barry Plan, by denying the I. B. E. W. use
of its facilities while giving the Representation Plan complete
financial support.
The respondent not only initiated and completely supported the
Representation Association, it also interfered with the day-to-day
administration of the Plan. As stated above, Superintendent Daw-
kins complained to Ross, the chairman of the Production Division
Council, about the latter's. activity in taking up grievances and
warned him that for his-own good it would be well to handle griev-
ances as the plan provided. This implied threat to Ross' well-being
in an attempt to prevent him from exercising his best judgment in
behalf of his constituents is the clearest form of domination and
interference with the affairs of a labor organization.
We find that the respondent was entirely responsible for the origi-
nal organization of the Representation Association and that it there-
after interfered with its administration and dominated and supported
the Representation Association until July 5, 1935. The respondent
contends that these acts, which took place prior to the effective date
of the Act, are immaterial since they were not in violation of the
Act. As already stated, the respondent's activities prior to the effec-
tive date of the Act are not unfair labor practices within the meaning
of the Act, but their influence upon the employees and their results
continued after that date. On July 9, 1935, the General Council of
the Representation Association, holding a meeting in the respondent's
building in Birmingham, decided to notify the respondent that no
more expenses would be turned over to the respondent for payment.
Other than this cessation of the respondent's direct financial sup-
ALABAMA POWER COMPANY 685
port, 114 the Representation Association continued unchanged after the
effective date of the Act until the amendment of its constitution of
August 20, 1935, which resulted in the formation of the Employees'
Association. We find that after the effective date of the Act, the
respondent continued to interfere with, dominate, and support the
Representation Association, an organization originally formed by it,
and thereby interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
Through the action of Howard Williams, then the secretary of the
General Council of the Representation Association, the respondent
bore a substantial portion of the cost of the amendment to the con-
stitution of the Representation Association which resulted in the
organization of the Employees' Association. It paid for the mimeo-
graphing and paper required for the various necessary documents and
paid Williams' traveling expenses in connection with the amendment.
Although the respondent's major outlay was made 65 prior to the effec-
tive date of the Act, nevertheless it resulted -in substantial assistance
in the formation of the Employees' Association, since neither the
Representation Association nor the Employees' Association had, at
that time, any funds of their own, and a large number of documents
were prepared.°°
The amendment made only two substantial changes in the Barry
plan; it changed the name of the organization, and it allowed dues
of 15 cents a month to be assessed in the event that payment of
expenses by the respondent should violate any law. The officers of
the Representation Association continued to act as officers of the
Employees' Association; they continued to use the Representation
Association books and records in the transaction of the Employees'
Association's business; and continued and concluded the negotiation
of an agreement with the respondent, which they had initially sought
as officers of the Representation Association. Meetings and elec-
tions of the various Councils of the Employees' Association con-
tinued to be held upon the respondent's premises, sometimes during
working hours. 117 Such expenses of the amendment to the Representa-
86 The employees as a whole were given no notice that the respondent had ceased giving
direct financial support. So far as they knew, the Representation Association was still
fully supported by the respondent.
es The respondent 's machines , after the effective date of the Act, were used by the
Representation Association to fill in blank dates left in the documents.
ee Further assistance in the organization of the Employees ' Association was the advice
of the respondent 's attorney upon the wording of one section of the amendment. Wil-
liams' action in showing the proposed amendment to the respondent's attorney further
indicates the subservience to the respondent of those responsible for the organization of
the Employees ' Association.
e7 As stated above, the Council meetings held in Birmingham were not held upon the
respondent 's premises after May 1937 but local meetings and elections were so held at
least as recently as April 1938.
686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion Association as were not met by the respondent, in the mannel
above indicated, were ultimately paid out of the funds of the Em-
ployees' Association.68 It is clear from the foregoing, and we find,
that the Employees' Association is the same organization as the Rep-
resentation Association, operating under a new name; that the
respondent contributed financial support to the formation of the
Employees' Association; and that it thereafter assisted the Em-
ployees' Association by allowing it free use of the respondent's prop-
erty and time for meetings and elections. We find further that the
respondent aided the Employees' Association by collecting its dues
through the "check-off" system administered by the respondent. The
"check-off" did more than merely facilitate the collection of dues. It
also discouraged the employees from withdrawing from the Em-
ployees' Association, since the only method of stopping the payment
of dues was to notify the respondent to cease making the deductions.
Since the employees were made well aware of the respondent's desire
that the Employees' Association endure, both by the assistance ren-
dered to it and by the activities of supervisory employees, they
would naturally be hesitant to advise the respondent to cease deduct-
ing dues. Thus the "check-off" tended to perpetuate the effects of the
respondent's unfair labor practices.
During the active existence of the Employees' Association, the
respondent's officials made it clear to the employees that they would
do well to join the Employees' Association rather than the I. B. E. W.;
that the respondent would do more for them if they were not
I. B. E. W. members; that they should join the Employees' Associa-
tion and "build up" themselves with the respondent; and that
I. B. E. W. members need not expect good jobs. This course of
conduct clearly interfered with the formation and administration
of, and gave support to, the Employees' Association, since its neces-
sary effect was to make the employees fearful that a failure to join
the Employees' Association rather than the I. B. E. W. would result
in economic hardship to, or discrimination against, them.
Upon the basis of the foregoing, we find that the respondent has
dominated and interfered with the formation and administration of
the Employees' Association and has contributed financial and other
support thereto and has thereby interfered with, restrained, and co-
erced its employees in the exercise of the rights guaranteed by Section
7 of the Act.
By the activities of the respondent's officials and by the various
forms of support contributed to the Employees' Association, the
employees were fully advised that the respondent favored the Em-
68 The expenses were originally met by various officials of the Representation Associa-
tion and they were reimbursed by the Employees' Association.
ALABAMA POWER COMPANY 687
ployees' Association and that a failure to support that organization
might result in some economic injury to themselves. The employees
also knew that the respondent had persisted in its policy of support
and favoritism with respect to both the Representation Association
and the Employees' Association over a long period of time, both be-
fore and after the effective date of the Act. Under these circum-
stances, we find that the employees could not have felt free in their
choice of bargaining representatives. Thus the election of November
1937, held under the auspices of the Board, was not a true indication
of the desires of the employees as to a bargaining representative.
The final consideration here presented is that of whether or not
the Independent has been dominated, interfered with, and supported
by the respondent. The Trial Examiner found that the respondent
caused to be formed, and sponsored, the Independent. The evidence
relating to the respondent's direct interference in the formation of
the Independent is summarized above and concerns the assistance
given the Independent by supervisors in the solicitation of members.
Foreman R. L. Winn distributed Independent literature to the mem-
bers of his crew at their homes; he attended and spoke at an Inde-
pendent organizational meeting; Foreman Milton attended the same
meeting; Foreman W. D. Winn offered to mail in the application
cards of the members of his crew with his own; Foreman Summers
distributed application cards to the members of his crew; Foreman
Murray gave Taylor an application card and told him to fill it out if
it suited him; and Foreman Packard asked Jackson if he had joined
the Independent and advised him that the principal object of the
Independent was to keep out the I. B. E. W. As to all these foremen,
the respondent contends that there is nothing in the character of their
position upon which to base an inference that they could speak for
the respondent in a matter of policy affecting the respondent's entire
system. The foremen in question have authority to make recom-
mendations concerning the hiring and discharge of employees, who
work under their immediate direction and take orders from them.
They represent the management to those working under them and
as such have at least apparent authority to inform the employees
upon the respondent's policy. The respondent is responsible for
their activities."'
The respondent also urges that the assistance contributed by the
foremen is no indication of interference with, or domination or sup-
port of the Independent because foremen are eligible to I. B. E. W.
membership. Whatever may be the merits of such a contention under
66 Matter of Swift 6 Company and Amalgamated Meat Cutter8 and Butcher Workmen
of North America, Local No. 641 et at., 7 N . L. R. B. 269, enf'd as mod ., Swift & Co. v.
N. L. R. B., 106 F. (2d) 87 (C. C. A. 10).
688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other circumstances, we do not regard it as valid under those here
presented. Here, the respondent had, for almost 4 years, followed
a policy of dominating, interfering with, and supporting labor or-
ganizations of its employees. It had, as we have found, made plain
to them upon many occasions its hostility to the I. B. E. W., had
threatened to discriminate against those who persisted in remaining
members of the I. B. E. W., and had advised employees that they
would better their positions by being members of the Representation
Association or of the Employees' Association. The respondent took
no action at any time to advise the employees that there was any
change in this policy, or that it no longer intended to dominate and
support organizations of its employees which were amenable to its
wishes. Under these circumstances, the employees could not have
felt free to join whatever organization they desired.70 In addition
to the above considerations, it may be pointed out that while the
record discloses that at least two foremen were members of the
I. B. E. W., there is no evidence in the record that they undertook
solicitation in behalf of the I. B. E. W. after the effective date of
the Act.
We find that by the activities of the foremen in behalf of the Inde-
pendent, the respondent interfered with the formation of, and gave
assistance to, the Independent.
An analysis of the constitution and organizational structure of the
Independent supports the conclusion that it is not an organization
capable of operating independently of the respondent's wishes. In
many respects, the constitution is similar to, and in some instances, al-
most identical with, the constitution of the Employees' Association. It
will be recalled that, with the two exceptions noted above, the constitu-
tion of the Employees' Association was substantially the Barry plan
which had been foisted upon the employees by the respondent. The
constitutions of both the Employees' Association and the Independent
limit their membership to the respondent's employees and provide
that membership is terminated upon the termination of the employer-
employee relationship. Both establish three tiers of employee-repre-
sentation councils (in the case of the Independent, called "Boards"),
local councils, Division Councils, and a General Council (in the case
of the Independent, called the "Executive Board") and in which the
chairmen of the local councils or boards make up the Division Coun-
cils or Boards, and the chairmen of the Division Councils or Boards
make up the General Council or Executive Board. The Independent
"There is some evidence in the record that one or two of the respondent 's officials had,
in the past , stated that employees were free to join any labor organization they desired.
However, in the face of many statements and other indications to the contrary, they
could have carried little weight with the employees.
ALABAMA POWER COMPANY- 689
has changed the electoral divisions in some of the Divisions and has
added a Division or two, but the plan of organization is essentially
that of the Employees' Association; namely, an employees' representa-
tion plan in which the membership as a whole is far removed from
any direct control over the highest governing body, the General
Council or the Executive Board.
Both constitutions require that employee representatives be mem-
bers of the organization and employees of 1 year's standing, which
effectually prevents the employees from designating non-employees as
their bargaining representatives. Both provide that employee repre-
sentatives who leave the respondent's employment or who are trans-
ferred from the electoral division from which they were elected are
deemed to have vacated their offices. This provision vests in the
respondent control over the representatives chosen by the employees.
If an employee representative is distasteful to the respondent for any
reason, it can prevent him from acting as such by discharging or
transferring him. The respondent originally vested this control in
itself in the Barry plan and maintained it thereafter in the constitu-
tion of the Employees' Association. That the Independent should
provide the respondent with the power to disqualify the representa-
tives selected by the employees is persuasive evidence of the Inde-
pendent's subservience to the respondent.
Representatives who are themselves employees, completely de-
pendent upon the respondent, cannot act freely in the interest of their
constituents unless they are in some way protected against economic
coercion by the respondent. The constitution of the Independent
makes no attempt to provide such protection. On the contrary, it
provides that its members, which includes the employee representa-
tives, lose their membership if they cease being employees. Having
lost his membership, an employee representative could not have his
discharge protested as a grievance since provision is made only for
taking up the grievances of members.
Neither constitution makes provision for general membership meet-
ings at which the membership can discuss its problems and instruct
its representatives. Under both constitutions, meetings can only be
called by the various councils or boards or upon petition of a large
number of members. The membership's only functions under both
constitutions appear to be the payment of dues and voting for repre-
sentatives or on amendments to the constitutions. This pattern of
membership non-participation, as well as the other essential elements
of organizational structure discussed above, was originated by the re-
spondent in the Barry plan, continued thereafter through the
medium of the Employees' Association, and was ultimately adopted
by the Independent. The organizers of the Independent necessarily
690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were aware of the respondent's sponsorship of the Employees' Asso-
ciation. The form taken by the Independent clearly flowed from the
respondent's hostility to outside labor organizations and its open
preference for the Employees' Association and its predecessor, the
Representation Association.
In view of the foregoing, the Independent may realistically be
regarded as the successor to the Employees' Association. It is appar-
ent, moreover, that the two organizations are more closely related
than the organizers of the former were willing to acknowledge.
They did admit, however, that the Independent was organized to
supplant the Employees' Association and that one of the factors
leading to its formation was a desire to prevent the I. B. E. W. from
becoming the majority representative. As noted above, the respond-
ent originally formed the Representation Association to prevent the
I. B. E. W. from gaining a foothold and as a part of its policy of
opposition to the I. B. E. W. The respondent continued its policy
of opposition to the I. B. E. W. and support of a competing labor
organization after the organization of the Representation Associa-
tion's successor, the Employees' Association. In this respect, the
Independent was the direct successor to the Employees' Association
as the respondent's bulwark against the I. B. E. W. The Inde-
pendent took care to emphasize to the employees that it was the
Employees' Association's successor. In its letter to the employees
of August 24, 1938, the Independent pointed out that, like the two
Associations, it was "the Independent employee representative type
of labor organization," and that the chairman of the Employees'
Association had joined the Independent. Viewed against the back-
ground of the respondent's policy of support of labor organizations
of the type represented by the Independent, the letter indicated to
the employees that they would do well to join the Independent, as
successor to the favored Employees' Association.
A further connection between the Employees' Association and the
Independent appears in the similarity of their constitutions. Both
employed the same attorney, who represented and advised them
concurrently. As early as August 1, 1938, the chairman of the
General Council advised one of the organizers of the Independent
that the Employees' Association would no longer act as bargaining
agent, but made no formal disclosure to this effect to the respondent
until September 1, 1938. On September 7, 1938, the Independent
was sufficiently organized to advise the respondent that it would
soon be seeking recognition as the exclusive representative of the
employees. Other factors point to a substantial identity of the
Employees' Association and the Independent. The former allowed
the latter to use its membership lists for organizational purposes;
ALABAMA POWER COMPANY 691
a number of Employees' Association councilmen were active in
soliciting in behalf of the Independent; Howard Williams, prominent
member and treasurer of the Employees' Association, assisted in
mailing Independent literature; and the chairman of the Employees'
Association's General Council joined the Independent before any
notice was given to the respondent or to the membership of the
Employees' Association that it would no longer act as bargaining
representative.
Under the circumstances, we think it clear that the Independent's
organizers, the respondent, and the respondent's employees, all re-
garded the Independent as the successor to the Employees' Associa-
tion, designed to combat the I. B. E. W. on the respondent's behalf.
We deem it important to stress again the effect of the respondent's
long-standing and widely expressed policy of hostility toward truly
independent labor organizations in general and the I. B. E. W. in
particular. The fundamental purpose of the Act is that employees
should be afforded a full and free opportunity to choose their bar-
gaining representatives, without the influence of the employer being
brought to bear, either bluntly or subtly, so as to interfere with their
choice. The respondent's failure to make any genuine effort to undo
the effects of its unfair labor practices and to conform its labor
policy to the law of the land is clear. Its 4-year campaign of spon-
sorship of "inside" organizations and hostility to the I. B. E. W. was
in no wise disavowed by the mere diminution of the vigor with which
this policy was proclaimed to the employees. The conclusion is
inescapable that the formation of the Independent was in large part
a response to the continuing desire of the respondent for a labor
organization patterned after its own creature, the original Repre-
sentation Association.
We find that the continued existence of the Independent, with
the accompanying background of employer interference, domination,
and support of its two predecessor organizations, offers a permanent
obstacle to any free choice by the employees of their representatives
for the purposes of collective bargaining.
Upon the basis of the foregoing, we find that the respondent domi-
nated and interfered with the formation and administration of the
Independent, and contributed support to it, and thereby interfered
with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of respondent
described in Section I above, have a close, intimate, and substantial
692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
V. THE REMEDY
We have found that the respondent has dominated and interfered
with the formation and administration of the Representation Asso-
ciation, the Employees' Association, and the Independent, and has
contributed support to them. In order to effectuate the policies of
the Act and free the employees of the respondent from such domina-
tion and interference, and the effects thereof, which constitute a
continuing obstacle to the exercise by the employees of rights guar-
anteed by the Act, we shall order the respondent to withdraw all
recognition from the Employees' Association, to disestablish it as a
representative of the employees for the purposes of collective bar-
gaining with respect to grievances, labor disputes, wages, rates of
pay, hours of employment, or other conditions of employment. We
shall not, however, extend our order of disestablishment to the rela-
tionship between the respondent and the Employees' Association in
so far as it pertains to the accident and health insurance program
and the hospitalization insurance program sponsored by the Em-
ployees' Association. We shall further order the respondent not to
recognize the Independent in the future as a representative of the
employees for the purposes of collective bargaining. We have found
that the sum of $7,115.40 was turned over by the respondent to the
Employees' Association pursuant to an agreement by the respondent
to collect dues for the Employees' Association by pay-roll deductions,
such collection of dues being a further type of support and assistance
rendered to an employer-dominated organization. As we said in
Matter of The Heller Brothers Company of Newcomerstown and
International Brotherhood of Blacksmiths, Drop Forgers, and
Helpers : 71
It seems plain to us that the authorization by an employee
for the check-off of dues owed to an organization which his
employer has formed and continues to dominate cannot be con-
sidered as having been voluntarily given by the employee. When
check-off authorizations are sought under such conditions the
employee is placed in a position of permitting the check-off or
of putting himself squarely upon record as openly opposed to
the Company's wishes. No employee confronted with such an
option can be regarded as having exercised free choice. Thus
717 N. L. R. B. 646. See also Matter of West Kentucky Coal Company and United
Mine Workers of America, District No. 23, 10 N. L. R. B. 88.
ALABAMA POWER COMPANY 693
the same pressures by the respondent which compelled its em-
ployees to abandon their free choice of representatives enforced
their acquiescence in the check-off. Under the circumstances we
will restore the status quo by ordering the respondent to reim-
burse its employees for amounts deducted from wages as dues
for the Independent.
Adapting the reasoning of the above-quoted paragraph to the facts
in this case, we will order the respondent to make whole its employees
individually for the full amounts deducted from their wages as dues.
Since we have found that the Representation Association is no
longer in existence, we shall make no order with respect to it.
The respondent will, in addition, be ordered to cease and desist
from dominating and interfering with the formation and adminis-
tration of and from contributing support to the Employees' Asso-
ciation, Independent, or any other labor organization; and to cease
and desist from interfering with, restraining, or coercing its em-
ployees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
representatives of their own choosing and to engage in concerted
activities, for the purposes of collective bargaining or other mutual
aid or protection.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Alabama
Power Employees' Association, and Independent Union of Alabama
Power Employees, Inc., are labor organizations and Alabama Power
Company Employees Representation Association was a labor organi-
zation within the meaning of Section 2 (5) of the Act.
2. The respondent, by dominating and interfering with the forma-
tion and administration of the Alabama Power Company Employees'
Representation Association; Alabama Power Employees' Associa-
tion; and Independent Union of Alabama Power Employees, Inc.,
and by contributing support to said organizations, has engaged in
and is engaging in unfair labor practices, within the meaning of
Section 8 (2) of the Act.
3. The respondent, by interfering with, restraining, and coercing
its employees in the exercise of the rights guaranteed by Section
7 of the Act, has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
694 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Alabama Power Company, Attalla, Alabama, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of Alabama Power Employees' Association and 'Independent
Union of Alabama Power Employees, Inc., or with the formation
or administration of any other labor organization of its employees,
and from contributing support to said Alabama Power Employees'
Association or to Independent Union of Alabama Power Employees,
Inc., or to any other labor organization of its employees;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively with
representatives of their own choosing, and to engage in concerted
activities, for the purposes of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from Alabama Power Employees'
Association as a representative of any of its employees for the pur-
poses of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or other condi-
tions of employment, and completely disestablish Alabama Power
Employees' Association as such representative; provided that the
withdrawal of such recognition shall not require the interruption
of the relationship between the respondent and the Alabama Power
Employees' Association relating to the accident and health insurance
program and the hospitalization insurance program sponsored by
Alabama Power Employees' Association;
(b) Refrain from recognition of Independent Union of Alabama
Power Employees, Inc., as a representative of any of its employees
for the purposes of dealing with the respondent concerning griev-
ances, labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment;
(c) Reimburse, individually and in full, all employees who were,
or still are, members of Alabama Power Employees' Association for
all dues which it has deducted from their wages, salaries, or other
earnings, on behalf of Alabama Power Employees' Association pur-
suant to the arrangement between the respondent and the Alabama
Power Employees' Association
ALABAMA POWER COMPANY 695
(d) Immediately post notices in conspicuous places in each of its
plants, office buildings, or other buildings throughout its system, and
maintain such notices for a period of sixty (60). consecutive days,
stating that the respondent will cease and desist in the manner set
forth in 1 (a) and (b), and that it will take the affirmative action
set forth in 2 (a), (b), and (c) of this Order;
(e) Notify the Regional Director for the Fifteenth Region in
writing. within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
283029-41-vol. 18-45