El Paso Electric Company, a Corporation

National Labor Relations Board - Board Decisions

Jun 12, 1939

13 N.L.R.B. 213 (N.L.R.B. 1939)

In the Matter of EL PASO ELECTRIC COMPANY, A CORPORATION and
LOCAL UNION 585, INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS; AND N. P. CLAY ET AL.
'Cases Nos. R-3 and C-6.-Decided June 12, 1939
Electric Utility, Railway, Bus, and International Toll Bridges Industry-
Inter-ference, Restraint, or Coercion: offer to advance 2 months' salary to dissatis-
fled union members who wished to leave; anti-union statements by supervisors-
Company-Dommated Unions: assistance in formation, organization, and admin-
istration ; domination and control over formation and administration ; new
organization started by leaders of original Plan in May 1937 found mere con-
tinuation of original company-dominated Plan ; disestablished as agency for
collective bargaining-Contract: with Company set aside-Strike: provoked in
part by employer's unfair labor practices and in part by employer's breach of
agreement to submit questions to the Board-Employee Status: strikers held
employees within meaning of Section 2 (3) of the Act-Discrimination: dis-
charge of strikers because of union activity in going on strike held discrimina-
tion-Reinstatement Ordered: all strikers except those guilty of sabotage not
condoned by the employer, those not desiring reinstatement, and one who has
since died; strikers allegedly guilty of sabotage condoned by the employer
ordered reinstated ; assault and battery on non-strikers held no bar to reinstate-
ment-Back Pay: ordered to all strikers ordered reinstated from date of dis-
charge until offer of reinstatement; ordered for those not desiring reinstate-
ment from date of discharge until date of obtaining regular and substantially
equivalent employment ; ordered to next of kin of man who died from date of
discharge until date of death-Unit Appropriate for Collective Bargaining: unit
alleged inappropriate-Collective Bargaining: allegations in complaint charging
failure to bargain, dismissed-Petition: dismissed, no appropriate unit being
alleged.
Mr. Karl Mueller, for the Board.
Mr. W. L. Ingram, of Fort Worth, Tex., and Mr. N. P. Clay,, of
El Paso, Tex., for the I. B. E. W.
Brown d Brooke, by ,Mr. Volmey M. Brown, of El Paso, Tex., and
Baker, Botts, Andrews do Wharton, by Mr. C. R. Wharton, of Hous-
ton, Tex., for the respondent.
Mr. J. L. Rasberry, and Mr. U. S. Goen, of El Paso, Tex., for the
Alliance.
Mr. Melvin S. Frazier, and Miss Carol Agger, of counsel to, the
Board.
13 N. L. R. B., No. 23.
187930-39-vol 13--15 2,13
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by Local Union
585, International Brotherhood of Electrical Workers, herein called
the I. B. E. W., the National Labor Relations Board, herein called
the Board, issued and duly served its complaint and amended com-
plaints, dated November 8, 1935, April 24, 1936, and August 26, 1937,
respectively, against the El Paso Electric Company, El Paso, Texas,
herein called the respondent.- The complaint, as amended, alleged
that the respondent had engaged in and was engaging in unfair
labor practices affecting commerce within the meaning of Section 8
(1), (2), (3), and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act.
On about October 31, 1935, the I. B. E. W. filed a petition for
an investigation and certification of representatives.'
The respondent, subject to a reservation of its legal rights and a
plea to the Board's jurisdiction on the ground that it was not engaged
in interstate or foreign commerce, filed an answer and an amended
answer in which it denied the material allegations of the complaint.
The El Paso Electric Company Employees' Alliance, herein called the
Alliance, also filed an answer in which it denied that the respondent
had in any way dominated or interfered with its formation or admin-
istration or contributed support thereto. On September 11, 1937, the
Board, acting pursuant to Article III, Section 10 (c) (2), and Article
'The original complaint was issued by Edwin A. Elliott, Regional Director of the
Sixteenth Region (Fort Worth, Texas) on November 8, 1935. Pursuant to notice, a
hearing on the complaint and on a petition for a determination of representatives, which
had been filed by the I. B. E. W . on about October 31, 1935, was started on November 18,
1935. Thereafter, the respondent filed a bill to enjoin the Board 's proceedings (in the
District Court of the United States for the Western District of Texas) and, on November
26, 1935, pending a determination of the issues raised by the injunction proceeding, the
Board adjourned its hearing until further notice. On December 12, 1935, the Board
issued an order transferring the matter to the Board , quashing the complaint , revoking
the order directing the representation investigation and hearing, and revoking the order
designating the Trial Examiner . On April 24, 1936, the Board issued and duly served
an amended complaint and notice of hearing on the question concerning representation.
The hearing was scheduled for May 7, 1936, but was adjourned on May 11, 1936, without
any action having been taken, upon request of the District Court before which the
injunction suit was still pending The District Court granted the injunction on July 21,
1936. On March 18 , 1937 , the United States Circuit Court of Appeals for the Fifth
Circuit reversed the decree of the District Court. Certiorari was denied by the Supreme
Court of the United States on June 1, 1937, and on June 18 , 1937, the injunction was
dissolved by the District Court. Thereupon , the Board issued its second amended com-
plaint dated August 26, 1937.
z Prior to this date separate petitions dated September 5, 1935, signed by individual
employees had been filed with the Board.
EL PASO ELECTRIC COMPANY 215
11, Section 37 (b), of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered the consolidation of
the complaint and representation cases for purposes of the hearing.
The respondent and the Alliance filed pleadings in the representation
case in which they contended that the Board was without jurisdiction
on the ground that the respondent was not engaged in interstate or
foreign commerce and denied that. there was any question concerning
representation.
Pursuant to notice, a hearing on the consolidated cases was held
on September 14, 15, 16, and 17, 1937, before Robert Al. Gates, the
Trial Examiner duly designated by the Board 3 The Board, the
respondent, and the Alliance were represented by counsel. The
I. B. E. W. was represented by one of its International vice presi-
dents and by its president. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing upon
the issues was afforded all parties.
During the hearing a narrative of certain testimony adduced at the
trial in the District Court on the respondent's bill for an injunction
was offered in evidence. Counsel for the Board objected to the
admission of certain parts thereof. Counsel for the respondent also
offered to prove that certain striking employees committed an assault
and battery upon some non-striking employees, and that two of these
strikers plead guilty to an assault complaint filed in the Justice Court
in El Paso County. Counsel for the Board admitted the truth of
the proffered evidence but objected to its admission on the grounds
of materiality. The Trial Examiner did not rule on the admissibility
of such evidence. The narrative is hereby admitted and the matter
covered by the offer of proof is hereby deemed to have been proved
and admitted.
During the course of the hearing the Trial Examiner made several
rulings on motions and objections to the admission of evidence. The
Board has reviewed the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
Upon stipulation of counsel, because of the unavailability of cer-
tain witnesses at the time of the hearing, the record was held open
until about April 1, 1938, for the submission of affidavits in response
to written interrogatories and cross-interrogatories. A number of
such affidavits were subsequently filed and are hereby admitted.
The respondent, the Alliance, and the I. B. E. W . filed briefs
with the Board. On May 7, 1938, the Board issued an order denying
3 Notice of the hearing on the question concerning representation m as waived at the
heating by all interested parties.
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent's motion for Trial Examiner's Intermediate Report
and on July 21, 1938, the Board issued an order directing the issu-
ance of Proposed Findings of Fact, Proposed Conclusions of Law,
and Proposed Order, and notifying the parties of their right to file
exceptions and to request oral argument. On July 21, 1938, the
Board issued its Proposed Findings of Fact, Proposed Conclusions
of Law, and Proposed Order. Objections and exceptions to the
Proposed Findings of Fact, Proposed Conclusions of Law, and Pro-
posed Order were filed by the respondent, by the Alliance, and by
the I. B. E. W. The respondent also filed a motion that the entire
proceeding be dismissed and that no order for the reinstatement of
discharged employees be made. For the reasons which are here-
after set out, the motion is denied. The I. B. E. W. filed an answer
to the respondent's exceptions and objections and to the respondent's
motion to dismiss.
None of the parties have requested to argue orally before the Board
their Objections and Exceptions to the Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order. The Board has
considered the objections and exceptions filed by'the parties to the
Proposed Findings of Fact, Proposed Conclusions of Law, and Pro-
posed Order and save as consistent with the findings, conclusions,
and order herein find them without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent is a Texas corporation, having its principal office
and place of business in the city of El Paso, Texas. The respondent
is engaged in the generation and distribution of electricity, in the
operation of an electric railway and bus system, and in the operation
of international toll bridges between the cities of El Paso, Texas, and
Juarez, Mexico. The respondent's main generating plant, the Rio
Grande plant, where it generates about 90 per cent of all, the elec-
tricity generated by it, is located in the State of New Mexico.4 The
electricity generated at the Rio Grande plant flows to a substation
located in New Mexico, where the voltage of the electricity is in-
creased. Three transmission lines run from this substation, two of
which terminate in substations located in the city of El Paso, Texas,
and from them electricity is distributed in and about El Paso. The
third transmission line, which terminates in Las Cruces, New Mexico,
runs into Texas and at a point approximately 18 miles distant
4 The respondent also maintains a "stand by " generating plant in El Paso.
EL PASO ELECTRIC COMPANY 217
reenters New Mexico." In addition to this system the respondent
owns and operates two small electric systems, one at Sierra Blanca
and one at Van Horn, Texas. Except in management such systems
are not connected in any way with the El Paso system or with each
other. As we have said, the respondent also operates an electric
railway and bus system in and about the city of El Paso. The
electric railway system connects at the international border with
the system of the El Paso and Juarez Traction Company," which
makes a "loop" in Juarez, Mexico, and connects with the respondent's
system at another place on the international border. The electricity
necessary to operate the "loop" is purchased from the respondent
by the El Paso and Juarez Traction Company and when the re-
spondent cannot supply the necessary power the "loop" in Juarez
is, not operated.
Practically all consumers of electricity in El Paso are dependent
upon the respondent since it is the only public utility selling electrical
energy in the city of El Paso.7 It supplies electrical energy to four
railroads, the Texas & Pacific Railway Company, the Southern
Pacific Railway Company, the Texas & New Orleans Railway Com-
pany, the Atchison, Topeka & Santa Fe Railway Company, and
to the American Smelting and Refining Company, the air field, and
several oil refineries, packing plants, cotton oil mills, and cotton gins.8
Two strikes have taken place in the plant and on those occasions the
pulling of the switches in the generating station in New Mexico
completely shut off all power in the city of El Paso and other com-
munities served by the respondent. The street cars traveling to
Mexico were stopped, as were all other services dependent upon the
supply of current.
II. THE LABOR ORGANIZATIONS INVOLVED
Local Union 585, International Brotherhood of Electrical Work-
ers, is a labor organization affiliated with the American Federation
of Labor. All employees of the respondent engaged directly or
5 The Messila Valley Electric Company , a corporation engaged in distributing electricity
in the State of New Mexico, owns the line from the point at which it reenters the State
of New Mexico. Approximately 3% per cent of the electricity generated by the respondent
is sold to the Messila Valley Electric Company.
"The controlling interest in the El Paso Electric Company, the Messila Valley Electric
Company, and the El Paso and Juarez Traction Company is held by Stone and Webster,
Inc., through a system of holding companies
Smith , president of the respondent testified as follows :
"Q. .. . I take it , this would be a true statement that every user of electricity in
El Paso is supplied by the respondent corporation?
"A. Everyone , I think, except one. I believe we have one company-two individual
plants."
Some of the electricity is sold to customers who transmit it to Mexico and New Mexico.
8 Cf. Consolidated Edison Company of New York v. National Labor Relations Board,
305 U S. 197.
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indirectly in the production or distribution of electricity are eligible
for membership .9
The labor organization now known as the El Paso Electrical Com-
pany Employees' Alliance, is a labor organization without outside
affiliation which admits to membership all employees of the respond-
ent except employees classified as foremen or bosses having' authority
to hire and discharge.lo
M. THE UNFAIR LABOR PRACTICES
A. Background prior to July 5,1935
Prior to 1934 the respondent's employees were unorganized. In
the early part of 1934, however, an organizer for the Brotherhood of
Utility Employees of America, herein called the B. U. E., began to
organize the employees. The formation of a competing organization,
the El Paso Electric Company Employees' Representation Plan,11
herein called the Plan, was started about August 1, 1934. At ap-
proximately the same time the I. B. E. W. began to organize the
employees. The B. U. E., apparently, withdrew from the field
shortly thereafter.
The respondent recognized the Plan as the exclusive bargaining
agent of all of its employees about September 1, 1934. The I. B.
E. W. continued its efforts and by December 1, 1934, had been desig-
nated the bargaining representative of a large number of the respond-
ent's employees. It thereupon demanded recognition as the collective
bargaining representative of the employees whom it represented.
The respondent maintained that it could not deal with the I. B. E. W.
as it had a contract with the Plan by which the Plan was recognized
as the exclusive bargaining agency. The I. B. E. W. then filed a
petition for an election with the first National Labor Relations Board
and a hearing on such petition was held on January 6, 1935. That
Board dismissed the I. B. E. W.'s petition. The I. B. E. W. then
called a strike to enforce its demands.
The strike which took place in February 1935 was settled within
a few hours when the respondent agreed to enter into a contract with
a committee of employees, who were members of the I. B. E. W.,
hereinafter called the Committee. Although the respondent agreed
to and did enter into a contract with the Committee, it refused to
'The evidence is conflicting as to whether or not the respondent's employees in the
transportation field are eligible for membership.
10The El Paso Electric Company Employees' Representation Plan, which was organized
in 1934, was amended in 1937 and the name of the organization changed to the El Paso
Electric Company Employees' Alliance. The identity of the organization, however, remains
the same See subsection C of Section III hereof.
11 This organization is discussed in detail in subsection B of this section.
EL PASO ELECTRIC COMPANY 219
recognize or enter into a contract with the I. B. E. W. as a labor
organization representing its employees . The contract recognized
the Committee as the bargaining agent of all the employees in the
production and distribution departments until September 15, 1935.
In June 1935 prior to the effective date of the Act, one Kimes,
who was the mechanical maintenance foreman in the Rio Grande
power station, advised Harry Hantsche to get out of the I. B. E. W.
while he still had time to get out. Kimes also pointed out to
Hantsche that his seniority would be wasted if he persisted in re-
maining a member of the Union. Kimes did not testify at the
hearing. One of the respondent's highest officials, E. H. Will, super-
intendent of the light and power department, told a number of
I. B. E. W. members that they need not expect him to recommend
I. B. E. W. members for promotion to executive positions. In its
Exceptions to the Proposed Findings of Fact, Proposed Conclu-
sions of Law, and Proposed Order, the respondent argues that Will
was expressing merely a personal view and that the respondent had
no policy with respect to the promotion of I. B. E. W. members.
However, at ,the hearing Will stated that the view he expressed was
a personal and an official one. Will's position as superintendent of
the light and power department indicates that he was either speaking
in accord with a company policy or was making the policy himself •12
In either event, his action is attributable to the respondent.
Although these events occurred before the effective date of the
Act, and therefore afford no basis for a charge of unfair labor prac-
tices thereunder, they may be properly considered as tending to ex-
plain the respondent's subsequent conduct.13
B. The Plan and the Alliance
In July 1934 some of the respondent's employees, particularly
Martin, a car operator, and Fineron, a clerk, became interested in
forming a labor organization. Fineron admitted that their main in-
terest in forming such an organization was to defeat the B. U. E.,
which was apparently making some progress in organizing the em-
ployees and was, according to Fineron, creating "dissension" among
the employees. Martin and Fineron, after discussing the matter with
some of their fellow employees, circulated a petition for the signa-
ture of the employees. Fineron testified that at that time they did
not know what kind of organization they would form. The peti-
>a See Matter of M. Lowenstein & Sons, Inc. and Bookkeepers ', Stenographers' and
Accountants Union, 6 N. L. R. B. 216.
U See Jeffery-DeWitt Insulator Co. v. National Labor Relations Board, 1 N L. R B.
618, order enforced in 91 F. (2d) 134 ( C. C. A. 4th ), certiorari denied 302 U. S. 731;
National Labor Relations Board v . Pennsylvania Greyhound Lines, Inc, 303 U. S. 261
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion was addressed to M. C. Smith, president of the respondent, and
read as.follows :
We take this way of asking you to meet personally with us
or with a committee of employees named by us or to appoint
your representative for that purpose to talk about matters of
interest to the Company and its employees.
We are employees of the Electric Company and during the
past few months a minority group has created turmoil and dis-
sension in the ranks of employees. A large majority of the em-
ployees are not in agreement with such group and we believe we
should have our own organization which we are thinking of
forming to represent or promote or protect our interests as well
as to establish cordial relationship with our employers.
May we have an early reply?
The petition was circulated, at least in part, during working hours.
After a majority of the employees had been induced to sign the pe-
tition, it was presented to Smith by a committee of employees who
asked him if he would recognize such an organization if it were
formed. Smith replied that he would. He advised them that the
respondent was willing to meet and bargain with any of its em-
ployees and, at Fineron's request, promptly appointed a committee
to represent the respondent in drawing up a plan of organization.
Fineron stated at the hearing that his purpose in making the request
for the appointment of management representatives was to provide
for the formulation of bylaws which "would meet with the manage-
ment's favor." The employee committee also told Smith that they
were planning to form an association which would not be affiliated
with the American Federation of Labor and requested that the re-
spondent secure and furnish it with copies of employee representa-
tion plans. The respondent furnished the employee committee with
sample plans. The employee committee, after having studied these
plans and having formulated a tentative plan therefrom, -met with
the committee of management representatives and the two commit-
tees jointly, with the assistance of the respondent's attorney, revised
the tentative plan. The most important revision was the deletion
of a compulsory arbitration provision which was done upon the sug-
gestion of the management representatives. When the formulation
of the Plan was completed by the two committees, it was presented
to the respondent's president who said that if the Plan was satis-
factory to the majority of the employees it was satisfactory to him.
The Plan was then mimeographed on the respondent's stationery
and mimeographing machine and circulated by the members of the
employee committee among the men in the plant during working
EL PASO ELECTRIC COMPANY 221
hours, with a bulletin praising its merits. Ballots were passed out to
the men at the same time that copies of the Plan were circulated.
The ballot was so arranged that employees could vote for or against
the Plan. Ballot boxes were set up in the various departments of
the plant, and an election was held in the latter part of August 1934.
There is evidence that pressure was exerted by at least one foreman
to influence employees to vote for the Plan. A majority of the votes
cast were in favor of the Plan, the majority being made up of em-
ployees of the transportation department and office workers. Very
few of the employees in the power plant voted.
The Plan having been accepted by a majority of the employees,
Smith signed it and accepted it on behalf of the respondent. An
election of employee representatives was then held. The employee
committee which had started the Plan and which held the election
for its acceptance, managed the election of representatives. It pro-
cured from the respondent's records a list of those employees eligible
under the Plan rules and posted the names in the various depart-
ments. Representatives were elected from those nominated, nom-
inations having been made by a vote of the employees.
The Plan as approved by the employees and the respondent was
cast in the form of a contract between the two parties, on the advice
of the respondent's counsel. Thus, by contract entered into under the
guidance of the respondent's counsel, the internal affairs of the
employee group, such as the election of officers and other matters
which would ordinarily be covered by bylaws in an employees' organi-
zation, and which are of concern only to the employees and not to
the respondent, were fixed as approved by the respondent.
An analysis of the Plan reveals that all employees automatically
became members of the Plan by virtue of the fact that they were
employees. Membership ceased, apparently, if the worker was no
longer employed, since the Plan provided that only employees in the
employ of the respondent were entitled to vote in the election of
representatives. There were no applications for membership and
no dues or initiation fees; nor any independent method of financing
the organization, the Plan specifically providing that no dues or
assessments were to be levied. There was no provision in the Plan
for meetings of the members to discuss and decide upon policies or
proposed demands or to instruct their representatives. Nor in fact
were any such meetings held. The only means of contact with the
representatives was through informal individual conversations be-
tween them and the employees.
The Plan provided that only employees who had been employed
12 months, who were American citizens, and who could read and
write English were eligible to act as representatives. The Plan
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further provided that if a representative was no longer in the re-
spondent's employ, or if he were transferred from his "electoral divi-
sion," his offica was automatically terminated. Accordingly, no
outside person or organization could represent the employees even
if he or it were chosen by the employees, and the respondent by trans-
ferring to another division or by discharging a representative could
prevent him from representing those who had elected him. This
provision limited the employees' right to be represented by repre-
sentatives of their own choosing.
The Plan could be amended only upon a two-thirds vote of the
employee representatives, and no such vote was to be taken until 30
days after the submission of the amendment to the employee repre-
sentatives. However, since the Plan itself was conceived to be a
contract by the parties the provision for amendment would appear
to be useless unless the management representatives also consented
to the amendment. In fact when the Plan was materially amended
in 1937 it was amended only after the respondent and the employee
representatives entered into a further contract setting out the amend-
ment to be incorporated in the Plan.
The Plan purports to protect an employee representative against
discrimination by the respondent where any action has been taken
by the representative in good faith in his representative capacity.
There is no provision in the Plan for the determination of whether
the action has been taken in good faith. The representative may
appeal to the respondent's president and if the president's decision
is unsatisfactory the question of the alleged discrimination may be
settled by arbitration.
The procedure for collective bargaining was set forth in the Plan.
It provided for an Industrial Council consisting of employee repre-
sentatives and management representatives, each group having one
unit vote. The president of the respondent was chairman of the
Industrial Council and the chairman was given the authority to
appoint a secretary. If the members of the Industrial Council agreed
upon some proposal, they could only recommend that the respondent
accept the proposal, the respondent being free to accept or not as
it preferred. If the members of the Industrial Council did not agree,
arbitration of the dispute could not be required by either the manage-
ment or employee representatives since the Plan provided for arbi-
tration only if both parties agreed to it. Since a majority of both
the employee representatives and of the management representatives
was required to make a quorum, the respondent could prevent a
matter from being considered by withholding the attendance of its
representatives. The chairman of the employee representatives coni-
EL PASO ELECTRIC COMPANY 223
mittee testified that unless the chairman of the Industrial 'Council,
the president of the company, called a meeting of the Industrial
Council no meetings would be held. Thus the respondent could
postpone indefinitely the consideration of any proposal made by the
employee representatives.
The minutes of the meetings of the Industrial Council from October
24, 1934, until October 18, 1935, indicate that although a few minor
grievances were adjusted and a wage increase for certain groups was
procured, the meetings were often largely taken up with such questions
as the purchase of trainmen's uniforms at reduced rates, the promotion
of a baseball team, the sending of telegrams and letters to Congressmen
and Senators with respect to pending legislation affecting public
utility holding companies, discussion of a New York law firm 's opinion
on the constitutionality of the Act and the probability that the ques-
tion of constitutionality would be tested immediately, and the pending
social security legislation. At one meeting, on January 18, 1935, an
employee representative complained that the employee representatives
were sometimes unable to attend meetings of the employee representa-
tives (meetings of employees only) because their department heads
felt, that they could not be spared from their work for the meetings.
The respondent's president replied that the department heads should
give permission to employee representatives to attend such meetings
and-that arrangements would be made to insure that the representa-
tives would be free to attend. At the meeting of February 15, 1935,
the respondent's president "advised that he had discussed with Mr.
Fineron the advisability of the Employees Association using the
Company's return address on correspondence. He recommended
against this practice, stating that it might possibly lead others to
believe that this group was influenced by the Company. The Asso-
ciation had desired to use the Company's mail box as they have no
source of revenue and could not rent one of their own." The respond-
ent also furnished the Plan with a room, without charge, in which
to hold meetings of the employee representative committee.
The Plan continued in operation without substantial change until
May 1937.
In February 1937 the employee representatives began to consider
the question of dues for the membership. The minutes show that
the matter was taken up with the management representatives in
the Industrial Council meeting of March 30, 1937. A suggestion that
the Plan issue membership cards was also put forward at that meet-
ing, and the management representative said that there was no
objection to the scheme. At a meeting of the employee representa-
tives on April 2, 1937, an amendment to the Plan providing for
yearly dues of 50 cents was approved.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 12, 1937, the Supreme Court of the United States upheld
the constitutionality of the Act.14 On May 15, 1937, the respondent
and the members of the Plan entered into an agreement which pro-
vided that, since the Company was not concerned with and had no
control over the organizational procedure of the "Association" 16 or the
methods of choosing representatives, and since Part I of the Plan
(providing the organizational scheme) therefore no longer had any
place in the collective bargaining agreement, Part I of the Plan should
be eliminated from the contract between the parties but should remain
in effect subject to such changes as the "Association" might make;
and that Part II of the Plan, which dealt with the setting up of the
Industrial Council and its work, should be amended in the manner
specifically set out, which, in effect, deleted all references to Part I
of the Plan, and modified the duration of the agreement from .2 years
to 1 year.
Last, the head of the Alliance, testified that the agreement of May
15, 1937, was entered into in order to bind the respondent to enter into
a new proposed agreement when the amendments to the Plan should
be adopted, since amendments could not be adopted for 30 days after
being proposed. The Plan in its original form of a contract appar-
ently continued to exist during this period.
On May 21, 1937, the respondent's representatives executed an
"agreement providing for collective bargaining and arbitration."
This agreement was, in most respects, similar to Part II of the original
Plan, the primary change being the provision that arbitration be
resorted to, in the event of a deadlock, as a matter of right. The em-
ployee representatives, on June 16, 1937, accepted the amended plan
and changed the name from El Paso Electric Company Representa-
tive Plan to El Paso Electric Company Employees' Alliance. Neither
the amendment of the Plan nor the change in its name was submitted
to the membership for approval, although copies of the amended Plan
were posted about the plant to inform the employees concerning the
change.
From the foregoing it is apparent that the Plan was literally the
respondent's choice and was submitted to the employees for approval
only after it had been scrutinized and revised by the respondent's
representative and attorney. The formal provisions of the Plan vested
control in the respondent over membership in the Plan, over the em-
ployee representatives, over amendments, and over the adjustment of
14 National Labor Relations Board v. Jones & Laughlin Steel Corp , 301 U. S. 1; Na-
tional Labor Relations Board v. Fruehauf Trailer Company, 301 U. S. 49; National Labor
Relations Board v. Friedman-Harry Marks Clothing Company, 301 U. S. 58.
15The term "Association " was used in the agreement and was defined as meaning the
members of the Employees Representation Plan.
EL PASO ELECTRIC COMPANY 225
grievances.16 In operation the Plan did not afford the employees an
instrument for genuine collective bargaining looking toward a col-
lective agreement covering wages, hours, and working conditions, but
merely provided a forum for discussion primarily of subjects of more
remote employee concern.
As the organization was without funds because the Plan did not
provide for dues, the respondent gave it assistance by furnishing it,
without charge, a room in which to hold its representative meetings.
The respondent argues that allowing the employee representatives to
use the room is no indication of its support since it also allowed civic
organizations such as the Boy Scouts to use the room. This fact
standing alone would, it is true, be little evidence of the respondent's
support of the Plan, but when considered in conjunction with the
respondent's sponsorship and direct participation in the Plan, it is
plain that it was but another particular in which the respondent
contributed to the existence and perpetuation of the Plan. Further
support was given in that employee representatives were allowed
to leave their work to attend employee representative committee meet-
ings, upon the orders of the respondent's president. The minutes of
the Industrial Council, replete with statements made by representatives
of the management praising the Plan and its operation were posted
on the bulletin board in the respondent's plant. By this method, the
respondent through its own advocacy and support of the institution
sought to insure its continued acceptance by the employees.
In support of its position that it had not dominated or interfered
with the formation or administration of the Plan, the respondent as-
serts that in February 1935, the old National Labor Relations Board
refused the I. B. E. W.'s petition for an election on the ground inter
alia that the Plan was in existence. The respondent argues on the
basis of that decision that the status of the Plan had been adjudicated
by the old Board. The action of the old Board is, of course, not
binding upon us. Furthermore, since the Act was not effective until
July 5, 1935, it is obvious that the unfair labor practices denounced
by the statute were not in issue in that proceeding. Although prior
to July 5, 1935, the respondent's actions were not in violation of law,
the Plan was continued after that date without substantial change.17
During the period from July 5, 1935, to about May 15, 1937, the Plan
continued to operate with all the infirmities inherent in it from its
inception.
While it is apparent, and we find, that the respondent dominated
and interfered with the formation and administration of the Plan
16 See Matter of Bethlehem Shipbuilding Corporation , Limited and Indust) lot Unions of
Marine and Shipbuilding Workers of America , Local No 5 , 11 N L. R B. 105.
17 Minor changes in the Plan were made prior to May 15, 1937.
226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and contributed support to it, the question remains whether the
domination and support continued after the revision of the Plan in
1937 and whether the Alliance was capable of independently repre-
senting the employees' interests. As we have pointed out above,
neither the amendment of the Plan nor the change in its name was
submitted to the membership for approval. These changes were made
by the representatives elected by the employees under the Plan which
was set up and operated with the respondent's approval, advice, and
assistance. Such representatives were not the free agents of a free
employee electorate since they were an integral part of the company-
dominated Plan. Thus, the method employed to revise the Plan
precluded the elimination of the employer influence necessarily pres-
ent in it and its operation by reason of the respondent's participation
in its formation and the respondent's subsequent domination and
support ."' After the Plan was amended, pursuant to the contract of
May 15, 1937, the incumbent employee representatives continued in
office until a new election was held and continued to meet in a room
supplied by the respondent. The method of representation and man-
ner of carrying on business remained substantially the same. The
principal difference between the Plan and the Alliance was that the
bylaws or rules governing the internal affairs of the Alliance were
not included in the purported contract with the respondent. Last
stated at the hearing that the Alliance "took over the Representation
Plan and just carried on," and that the Alliance was merely the Rep-
resentation Plan amending its plan and changing its name. The
changes made in converting the Plan to the Alliance did not result in
the organization of a new and independent organization but rather
provided for the continuing existence of the Plan under a new name,
and under the same leadership. Although by the amendment of the
Plan, the formal provisions of the agreement between the respondent
and the employee representatives no longer gave the respondent the
control of the representatives by discharging or transferring them,
the arrangement now in effect does not provide the employees with
complete freedom in their choice of representatives. The only repre-
sentatives which may be chosen are employees of the respondent, who
are members of the Alliance.19 While the employees might volun-
tarily so restrict their own choice of representatives, here we have
is See Matter of Sep cel, Inc. and United Electrical, Radio and Machine Workers of
America, Local No. 1002, 11 N. L . R. B. 1295.
19 The provision which the employees' representatives have adopted is that in the event
of one of them leaving the employ of the respondent or being transferred to another divi-
sion, it "shall not terminate his office as a representative unless and until it shall have
been so determined by the other members of the Representatives' Committee , and his suc-
cessor for the unexpired term of his office shall have been by them appointed or shall have
been elected by a special election."
EL PASO ELECTRIC COMPANY 227
found that the decision upon this matter and others relating to the
changes in the Plan were adopted by the representatives elected under
the dominated Plan and not by the employees themselves. Nor is
there a provision in the constitution of the Alliance for membership
meetings to discuss problems with and instruct representatives. The
activities of individuals in the organization are limited to voting for
representatives once a year.
In view of the fact that the Plan had been in operation for several
years with the respondent's domination and support, in view of the
procedure followed in making the amendments to the Plan in May
1937, and in view of the fact that the Alliance was merely a continu-
ation of an existing organization under a different name with the
same officers at least temporarily in control, we find that the Al-
liance did not become an organization independent of the respond-
ent's support and control by reason of the amendments to the Plan
adopted in May 1937; that the changes then introduced in fact did
not alter the company-dominated character of the organization; that
the Alliance is not a free and independent bargaining representative
such as the Act contemplates; that the continued existence of the
Alliance in the respondent's plant with its background of employer
interference and support offers a permanent obstacle to any attempt
of the employees to choose their representatives freely and to bargain
collectively through such representatives.
Upon-the basis of the foregoing we find that the respondent domi-
nated and interfered with the formation and administration of the
Plan, now known as the El Paso Electric Company Employees' Alli-
ance, and contributed financial and other support to it prior to
July 5, 1935. We further find that the respondent continued to domi-
nate and interfere with the administration of the Plan and to con-
tribute support to it from July 5, 1935, until May 1937, and there-
after to dominate and interfere with the Alliance and contribute
support to it; and that the respondent has thereby interfered with,
restrained, and coerced its employees in the exercise of their rights
guaranteed in Section 7 of the Act.
C. Chronology of events after July 5, 1935
As we have heretofore indicated, the respondent entered into a
6 months' contract in the first part of 1935 with a Committee of its
employees who were members of the I. B. E. W. This contract
expired on September 15, 1935. On about September 12, 1935, the
I. B. E. W. submitted a new contract to the respondent for its con-
sideration. The proposed contract, in addition to covering wages
and other conditions of employment of the employees in the pro-
228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction and distribution departments, provided for the exclusive
recognition of the I. B. E. W. as the bargaining representative of the
employees in such departments and for a closed shop. In a letter to
Clay, president of the I. B. E. W., dated September 14, 1935, the
respondent rejected the proposed contract on the ground that it had
received a petition signed by a large majority of the employees in the
distribution department requesting that it should not deal with the
I. B. E. W. and that, therefore, it was precluded from negotiating
with the I. B. E. W. The letter read in part as follows :
The company now deals with its workers as a whole through
an Employees Representation Plan, having a contract which was
signed for a three-year period and which has many months yet
to run ...
The company believes that it is one of the leaders in the liberal
wage movement in the El Paso territory. It has found the vast
majority of its workers satisfied with wages and working condi-
tions. However, actuated by a desire to be fair to any member of
Local 585 I. B. E. W. in the two departments who is dissatisfied
and feels that he deserves higher wages or better working condi-
tions than the El Paso Electric Company offers, the company is
willing to pay him, until further notice, two months salary in ad-
vance on his resignation while still in active service so that he will
have ample time and adequate finances with which to find other
employment. With recent improvement in the employment
field, this offer should provide adequate time in which to make
another connection.
The I. B. E. W. immediately submitted another proposed contract.
The only substantial change from the previous contract was the dele-
tion of the closed-shop provision. In a letter dated September 17,
1935, the respondent flatly refused to consider it and advised the
I. B. E. W. that it did "... not feel that there is justification or presen-
tation of any further contracts by your minority group ..."
Tense feeling among the I. B. E. W. members was caused by this
refusal to negotiate further and by the offer of 2 months' pay to any or
all dissatisfied I. B. E. W. members who wished to leave the respond-
ent's employ. A strike was imminent. However, the strike was not
called at this time. Instead, on September 18, 1935, the I. B. E. W.
wrote Joseph Myers, Commissioner of Conciliation, United States
Department of Labor, advising him of the situation and requesting
that he present to the respondent the following proposals: (1) submit
the entire controversy to a fair board of arbitration, (2) submit the
entire controversy to the Board to pass through the regular procedure
provided by law.
EL PASO ELECTRIC COMPANY 229
A committee of 100 citizens interceded and on September 21, 1939,
this committee, together with Mr. Myers and the Board' s Regional
Director, succeeded in negotiating a "truce agreement." 20
The charges and petition mentioned in the truce agreement as having
been filed were filed shortly after the agreement was negotiated. On
November 18, 1935, the Board's hearing was started. The respondent
immediately filed a bill for an injunction-in the Federal Court for the
Western District of Texas to restrain the Board from proceeding fur-
ther with the matter. On November 26, 1935, the hearing was ad-
journed pending a determination of that suit.
In the ensuing months, the respondent's offer to pay any I. B. E. W.
member 2 months' pay upon receiving his resignation continued in
effect and was accepted by two employees. The respondent continued
to deal with the Plan as heretofore stated. The I. B. E. W.'s mem-
bership dropped from approximately 75 members in September 1935
to 60 members in February 1936 . Clay testified that between Sep-
tember 1935 and February 1936, the I. B. E. W. repeatedly attempted
to submit complaints that the respondent was violating Section 3 of
the truce agreement to the Arbitration Board established by Section
20 The truce agreement is as follows :
"In the interest of the general public and in order to preserve industrial peace while
the Petition hereafter referred to is pending, the following communication has been read
to representatives of El Paso Electric Company and representatives of employees of that
Company , and has been approved by all such pai ties.
"1. A Petition and complaint has heretofore been filed with National Labor Relations
Board by Local Union No. 585 of International Brotherhood of Electrical Workers , against
El Paso Electric Company. The El Paso Electric Company, by - this agreement , shall not
be understood as giving up any legal right which it might otherwise have to oppose said
Petition and the relief sought by the Petition by such proper and legal methods as it may
think best, including the presentation of claims of lack of jurisdiction , unconstitutionality
of the law , etc, and Local Union No. 585 shall not be understood ' as giving up any legal
right which it might have to proceed under the National Labor Relations Act or other
laws. The action of any employee or group of employees in seeking relief through the
National Labor Relations Board shall not be grounds for discrimination against any such
employee or group of employees.
IT. As long as said Petition remains uudisposed of, The Company will not discharge or
discriminate against , harrass , or intimidate any of its employees because of previous union
or anti-union activities , or because of continuation of union membership
"3. As long as said Petition remains undisposed of, pressure and agitation against
members of Electrical Workers Union , Local 585 , to persuade or induce them to leave said
Union, shall not be indulged in by the Company or by any of its employees or representa-
tives, and during such period pressure and agitation to increase the membership of said
Union from employees of El Paso Electric Company shall not be indulged in by any
member or representative of Local 585 , and said Local agrees that action taken by repre-
sentatives of International Brotherhood of Electrical Workers shall be considered as action
by representatives of Local 585.
"4. As long as said Petition remains undisposed of, all claims with reference to alleged
violations of the terms of this understanding shall be submitted to and decided by a
Board composed of A L . McKnight , W. R. Blair, J. R. Roberts, N . P. Clay, and J. E
Morgan, and the finding of a majority of said Board shall be conclusive upon the facts,
and any action which had been taken and which is found by the Board to be contrary to
the terms of this understanding shall be promptly remedied . In event any one of said
five shall be unable or unwilling to act, he shall appoint his successor . This paragraph
shall not be construed to in any way limit the relief as provided for in the National Labor
Relations Act."
187930-39-vol 13-16
230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4 of such agreement , and that such efforts proved futile as the Arbi-
tration Board never met because some member of such body was out
of the city. No evidence rebutting this testimony was introduced.
We, therefore, find that attempts were made by the I. B. E. W. to
bring complaints to the Arbitration Board established by the truce
agreement.
Finally, at about 4 a. m. on February 27, 1936, nearly all the mem-
bers of the I. B. E. W. in good standing in the respondent's employ
went out on strike.
D. Interferevnce, restra1izt, and coercion
About August 1, 1935, Harry Hantsche, secretary of the I. B. E. W.,
who had been transferred by the respondent about 2 months before
from its Rio Grande plant to a position which he considered less de-
sirable, had a talk with J. Reich, the respondent's assistant chief en-
gineer. According to Hantsche, Reich asked Hantsche whether "they
were not pretty strict in the Army" and whether the Army regula-
tions did not have to be complied with on pain of punishment and
then advised Hantsche that his transfer was "more or less the same
case." Reich denied that he had advised Hantsche that his transfer
was punishment but he admitted that he had talked to Hantsche re-
garding the Army in order to make conversation. The significance
of Reich's words appear when considered in conjunction with a con-
versation Hantsche had with Taylor, superintendent of production,
a few days later. Taylor advised Hantsche that he had given the less
desirable job as punishment, and told him "you can go back to your
work at the Rio Grande station if you will quit the Union." Taylor
did not testify. We are, therefore, satisfied that Reich did advise
Hantsche that his transfer was to punish him and we so find.21
About September 1, 1935, M. Castillo was told by John Kimes, a
foreman, that "the best thing you can do is to drop out of that Union
because you are going to lose your job if you don't." Kimes did not
testify. The respondent urges that Kimes' statement is an isolated
incident which does not show a policy of opposition to the I. B. E. W.;
that it was made without authority; and that the evidence does not
clearly establish that it was made subsequent to the effective date of
the Act.
First, Kimes' statement is an isolated incident only in the sense that
the record does not disclose that he made other similar statements.
By itself, it is indicative of the respondent's hostility to the I. B. E. W.,
but when considered in conjunction with such incidents as Reich's
and Taylor's discussion of Hantsche's transfer, Superintendent Will's
2 This transfer could not constitute unfair labor practices since it occurred prior to the
effective date of the Act.
EL PASO ELECTRIC COMPANY 231
exposition of the respondent's policy, hereinabove discussed '22 and the
respondent's relationship, first, to the Plan and then to the Alliance,
above discussed, it confirms our conclusion that the respondent had
adopted a policy directed toward the elimination of the I. B. E. W.
as a bargaining agency for its employees. Second, if, in fact, the
statement was made without authority, which assertion we do not
credit, the respondent is responsible for it. Kimes was a mechanical
maintenance foreman with power to recommend the employment and
discharge of employees and, according to Will, exercised "an employer
function." Employees customarily learn their employer's policy
through such supervisory employees with whom they are in direct
contact.23 Finally, the record discloses no reason for questioning the
finding as to the date of the conversation. We find that the state-
ment was made after the effective date of the Act.
In refusing the I. B. E. W.'s request for collective bargaining on
September 14, 1935, the respondent stated, inter alia, that it was deal-
ing with the company-dominated Plan under a contract. While we
do not make any finding based upon this statement in connection with
the charge of a failure to bargain, which charge we do not sustain
for reasons discussed in Section G, infra, it is plain that the respondent
was continuing to use the company-dominated Plan to defeat bona
fide self-organization by its employees.
In the same letter of September 14 the respondent made a standing
offer of 2 months' salary to any dissatisfied I. B. E. W. member in
consideration of such member's voluntarily leaving the respondent's
employ. Since the offer was limited to I. B. E. W. members only,
and was not extended to any dissatisfied employees, there can be no
doubt but that it was intended to induce defections from the
I. B. E. W.'s ranks. N. P. Clay, the president of the I. B. E. W. local,
considered the offer bribery, "an attempt to buy men out of the
organization." That the offer in part had the effect intended is
evidenced by the fact that two employees who were members of the
I. B. E. W. accepted it and quit their employment.
We find that by making and keeping in effect the offer of 2 months'
advance salary, by Kimes' warning to Castillo, and by Reich and
Taylor's discussion of his transfer with Hantsche, they respondent has
interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
22 In Section III, A, above, we have referred to will's statement that I. B E. W. mem-
bers need not expect him to recommend them to executive positions . His testimony dis-
closes that this was still his policy at the time of the hearing. Will said that he had not
applied this policy to Alliance members , because they had not gone on strike or exhibited
disloyalty to the Company will further stated that he considered every strike disloyal,
and that "when a man strikes he is finished."
23 See Matter of Tennessee Copper Company and A. F. of L. Federal Union No. 21,164,
9N.L If. B. 117
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Conclusions with respect to the cause of the strike of February
27, 1936
As we have heretofore found, on September 15, 1935, when the 6
months' agreement between the respondent and the committee of the
employees terminated , the respondent refused to negotiate with the
I. B. E. W . because of its contract with the Plan and because it
considered the I. B. E. W. a minority group. A strike was then
threatened and to avert it the above-quoted truce agreement of Sep-
tember 21 , 1935, was entered into by the respondent and the
I. B. E. W . As contemplated in, the truce agreement , on October 31,
1935, the I. B. E. W. filed with the Board a petition to obtain a
determination of its claim to exclusive bargaining rights and a charge
setting forth the respondent 's alleged unfair labor practices . A hear-
ing was begun by the Board on a complaint and petition on Novem-
ber 18, 1935, but this attempted recourse to the Act by the I. B. E. W.
was rendered futile when the Trial Examiner adjourned the hearing
on November 26, 1935, because the respondent had filed an injunction
suit against the Board on November 19, 1935, the day after the hear-
ing began . Thereafter the I . B. E. W. sought unsuccessfully to invoke
the aid of the Arbitration Board established by Section 4 of the truce
agreement . When in February 1936 due to the pendency of the in-
junction suit against the Board, the situation with respect to the
respondent 's unfair labor practices and the I. B. E. W .'s claim to
collective bargaining rights remained as it was in September 1935,
and the prospects for any prompt decision by the Board on these
issues seemed hopeless , the I . B. E. W. struck.
The strike was caused by a complex of factors . In explaining
the causes of the strike , Clay, the I. B. E. W . president , testified in
part as follows :
Q. State to the Examiner , if you will, the reason that strike
was called?
A. Well, the best explanation I can give to it is that we had
prior to that time in September , we had signed an agreement.
That is what we understood it to be, an agreement to turn the
entire situation over to the National Labor Relations Board.
A. . . . We were under the impression we were to get a fair
and impartial hearing before the Labor Board and we didn't
consider we were getting what we had been promised.
Q. Was that the only reason for the strike being called at
that time?
A. Well, that was the prior reason to the strike , but there
had been other forms of intimidation . There had been bulletins
EL PASO ELECTRIC COMPANY 233
posted on the board that if a man was dissatisfied with his job
he would be advanced two months' pay in advance and there
were two of our members accepted that offer.
Q. Had the El Paso Electric Company ever bargained collec-
tively with the Local 585 as a bargaining agency, for any of
the employees of the company?
A. No, sir, not to my knowledge.
Q. Do you know whether or not that fact contributed to
the calling of the strike?
A. Well, that and all the facts combined. We had never been
able to negotiate an agreement.
Thus, chief among the causes of the strike was the respondent's
injunction suit against the Board which prevented the I. B. E. W.
from obtaining through the Board a cessation of the unfair labor
practices heretofore discussed and a determination of its status as
collective bargaining representative in accordance with the truce
agreement. While the delay occasioned by the injunction suit was
the immediate provocation for the strike, the employees' basic com-
plaint and the basic cause of the strike were the respondent's unfair
labor practices in their totality, including the respondent's use of the
company-dominated Plan and its policy of opposition to the
I. B. E. W. expressed in the actions of certain of its supervisory
employees and in its continuing offer of 2 months' salary to dissatis-
fied I. B. E. W. members.
The respondent urges that its action in seeking to test the consti-
tutionality of the Act in the injunction suit was within the contem-
plation of the truce agreement and that the strike was in breach of
such agreement. It is plain from the record that when the respond-
ent in its letter to the I. B. E. W. dated September 17, 1935, precluded
further efforts by the, I. B. E. W. to obtain recognition and a col-
lective agreement through negotiations and insisted upon dealing
with the Plan, a strike was imminent. It is equally plain from the
record that the truce agreement to submit to the Board the question
of the right of the I. B. E. W. to represent the employees was
entered into for the purpose of averting this strike. In view of the
circumstances out of which the agreement arose, we are convinced
that the accord contemplated an immediate reference of the contro-
versy to the Board for a prompt adjudication of the issues. This
construction of the intention of the parties in entering into the truce
agreement is not inconsistent with the respondent's full reservation
of its right to question the constitutionality of the Act and its appli-
cability to the respondent. However, in order to give effect to the
patent intent and purpose of the agreement-namely to secure a
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prompt determination of the issues by the Board-this reservation
can only be reasonably construed to have been intended to safeguard
the respondent's constitutional and jurisdictional objections in the
proceeding before the Board and thence in the judicial review pro-
vided by the Act and not to have contemplated a test of the consti-
tutionality of the Act in a collateral proceeding unconcerned with
the merits of the dispute, which left those merits to be subsequently
determined in a further proceeding which could not even be begun
until the injunction suit should be litigated through to the highest
court. Such a course of successive litigation would necessarily take,
and has in fact taken, years, and it is clear that a labor organization
with an urgent grievance did not contemplate such a course of action.
We conclude that the only reasonable interpretation which the lan-
guage of this agreement, construed in the light of the circumstances,
will bear, is that the respondent's constitutional and jurisdictional
objections would be raised before the Board and not in a collateral
proceeding. While we do not criticize the respondent for resorting
to the injunction proceeding to test the constitutionality of the
Act, our conclusion is especially true since the truce agreement
can only be deemed to have included the legal method of rais-
ing the constitutional issues.24 Therefore we cannot, for the rear
sons stated, regard the respondent's action as within the contempla-
tion of the terms of such agreement. Accordingly, we find that the
respondent breached the truce agreement by its institution of a col-
lateral proceeding to test the constitutionality of the Act, which was
not contemplated by such agreement, as well as by its continuing
offer of a 2 months' salary advance to dissatisfied I. B. E. W.
members.
The respondent contends that there is no evidence for a finding
that the strike was called for any reason other than the respondent's
refusal to bargain with the I. B. E. W., and that if we do not find a
failure to bargain collectively within the meaning of Section 8 (5).
as we do not for reasons stated in subsection G, there can be no find-
ing made within the pleadings that the respondent's unfair labor
practices caused the strike. These contentions are without merit.
First, there is substantial and persuasive evidence, hereinabove dis-
cussed, that the strike was caused by a number of factors, including
the respondent's unfair labor practices, as well as its alleged refusal
to bargain collectively. Second, paragraph 10 of the complaint
alleges that all the unfair labor practices alleged in the complaint,
including those which we have found, caused the strike.25
24 See Myers et al. v. Bethlehem Shipbuilding Corp., 303 U. S. 41.
25 See Matter of Republio Steel Corporation and Steel Workers Organizing Committee,
9 N. L. R . B. 219, where we said in regard to a similar contention : "where the respondent's
refusal to sign the proposed agreement-not alleged or found to be an unfair labor prac-
tice-Is also a factor in causing the strike, it rests upon the respondent to disentangle
EL PASO ELECTRIC COMPANY 235
We find that the strike was a labor dispute, in part caused by and
directed toward the elimination of unfair labor practices in which
the respondent was engaging under Section 8 (1) and (2) of the
Act, and in part caused by the respondent's action in preventing, by
the injunction suit, the orderly settlement of those unfair labor prac-
tices and the determination of the I. B. E. W.'s claim to exclusive
collective bargaining rights. We find that to the extent that the
strike was caused by the respondent's unfair labor practices, it was
an unfair labor practice strike and that the strikers' work had ceased
as a consequence of and in connection with a current labor dispute
and because of the respondent's unfair labor practices and that the
strikers retained their status as employees within the meaning of
Section 2 (3) of the Act .26
F. The discharges
On February 29, 1936, less than 48 hours after the strike began,
while the striking employees were still on strike, the respondent sent
each striker his pay check marked "final pay check." Smith, presi-
dent of the respondent, testified as follows :
Q.... I will ask you whether or not you, as President of
the El Paso Electric Company, on February 29th, 1936, dis-
charged each of the individuals whose names appear in that
exhibit at that place ?27
A. We discharged all of those men who failed to show up
for work after the strike of February 27th. I can't say for
sure as to each one of these individuals without comparing this
list with the checks that went out, but I think it is the correct
list.
Q. And you did discharge each of the individuals whose names
are there set forth at the place indicated on that exhibit?
A. We sent their pay checks marked "final pay check", and we
considered that a discharge.
the consequences for which it is responsible from those from which it is immune." See
bwalso Remington Rand, Inc v National Labor Relations Board, 94 F (2d) 862 (C. C. A
2d), certiorari denied 304 U. S. 576; National Labor Relations Board v. Stackpole Carbon
Company 105 F. (2d) 167 (C. C A. 3d).
'° See Matter of Lenox Shoe Company. Inc. and United Shoe Workers of America,
affiliated with the Committee for Industrial Organization , 4 N. L. R B . 372; Matter of
Republic Steel Corporation and Steel Workers Organizing Committee, 9 N. L R. B 219;
Biles-Coleman Lumber Co. v. National Labor Relations Board, 96 F . (2d) 197 (C C. A
9th) ; Remington Rand, Inc v. National Labor Relations Board, supra; Jeffery-DeWitt
Insulator Co. v. National Labor Relations Board, supra; National Labor Relations Board v.
Louisville Refining Company, 102 F. ( 2d) 678 (C. C. A. 6th ) ; ". . . The burden rested upon
the respondent to show that the strike would have taken place even if it had not inter-
feied with the rights of its employees to self -organization in contravention of the provi-
sions of the Act." National Labor Relations Board v. Stackpole Carbon Company , supra.
91 The exhibit referred to contained a list of the striking employees.
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Subsequently two of the strikers sought reinstatement with, ;the
respondent but were refused it. Within a few weeks after the strike
started, the picket line had been withdrawn and a large number of
the strikers were seeking other employment. With the two excep-
tions just noted, however, the employees did not apply to the respond-
ent for reinstatement.
Under these circumstances, we conclude that the respondent did
in fact effectuate a discharge of the strikers. Indeed, it is not dis-
puted by the respondent that the payment to the strikers of their
final pay check was intended as a final and irrevocable discharge, and
that it was accepted and acted upon by them as such.
It is settled that an employer may not terminate irrevocably the
employer-employee relationship simply because his employees, engag-
ing in concerted activities for mutual aid and protection, elect to
remain away from their work on strike.28
The remaining inquiry is whether or not the striking employees
were discharged because of their union activity in order to discourage
union membership, or for other causes. We are satisfied from the
record that the reason for the discharges was the membership of
these employees in the I. B. E. W. and their concerted union activity,
particularly that of going on strike. That the respondent was op-
posed to allowing its employees the free exercise of their right to
self-organization is evidenced by its efforts to compel its employees
to bargain collectively solely through the company-dominated labor
organization it had been instrumental in establishing, as well as by
the other unfair labor practices described above. Notwithstanding
such actions of the respondent, about 60 employees had remained
members of the I. B. E. W. When the strike occurred the respondent
utilized it as an occasion to eliminate the I. B. E. W. members from
its employ. A further indication that the I. B. E. W. strike moti-
vated the discharge is found in the statement in the respondent's
answer to the amended complaint that :
(j) Notwithstanding this [alleged sabotage] the respondent
did not refuse admittance to its plant or properties or refuse or
deny the right of any employee to return to duty after said action
on account of being affiliated with or connected with said desert-
ing group or for any other reason, but they and other members of
said group, who were not on duty during the night shift when
said occurrence transpired, failed and neglected thereafter to
return or to report for duty and stopped work and voluntarily
terminated their employment ...
2s See Mackay Radio & Telegraph Company v . Nattional Labor Relations Board, 304 U. S.
833, where the Court stated, "the strikers remained employees for the purpose of the Act
and were protected against the unfair labor practices denounced by it."
EL PASO ELECTRIC COMPANY 237
The employees in the power plants and distribution depart-
ments named in . . . the complaint though their jobs were open
to them, failed to return to work for more than two whole days
and were given their final pay by this respondent as of the
date ending February 29, 1936 and are no longer employees of
the respondent and have not been in its employ since?
Further confirmation of the respondent's motive in discharging the
strikers may be found in Will's statement at the hearing that all
strikes are disloyal and that once a man strikes he is "finished."
The respondent, however, contends in its Exceptions to the Pro-
posed Findings of Fact, Proposed Conclusions of Law, and Proposed
Order (1) that the strikers could not have been discharged because
of their union activities since union activities had been carried on
since 1934, and (2) that the strikers were not discharged until acts
of sabotage had been committed and until the strikers had refrained
from coming to work for 2 days.
The argument that because the respondent did not indulge in
mass discrimination against I. B. E. W..members earlier, it could not
have done so when the strike occurred is not persuasive. We have
found that over a period of years the respondent had by its unfair
labor practices successfully counteracted, but not eliminated, the
I. B. E. W., and had denied its employees their fundamental rights
guaranteed by the Act. When the strike occurred the respondent
discharged all the strikers, who constituted practically the entire
membership of the I. B. E. W. in the plant.
There is evidence in the record concerning acts of sabotage alleg-
edly committed by the strikers. This evidence discloses that at the
time the strike became effective gaskets, valves, nuts, bolts, and
similar items were removed from the machinery in the Rio Grande
powerhouse and that other things were done there to prevent the
immediate operation of the machinery. It further appears that
at about that time and during the later course of the strike, other
injury was done to the respondent's property such as the cutting down
of poles and the "shorting out" of lines.
We find, however,. that this sabotage was not the reason for the
discharges. Although the respondent knew almost immediately after
the strike became effective that a certain group of men were appar-
ently responsible for the acts in the Rio Grande power plant, the
respondent did not then and there discharge that group but waited
for 2 days and then discharged all the strikers, of whom only five
were in any way identified with the sabotage. The respondent made
20 The respondent further stated in its answer that it obtained new employees imme-
diately to replace those who had "abandoned their jobs " in order to maintain continuous
service. -
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
no attempt to distinguish between those apparently responsible and
those who clearly were not. Finally and conclusively, in the portion
of its answer hereinabove quoted the respondent specifically states
that notwithstanding the sabotage the strikers' jobs were open for
them for 2 days. In short, it was not the sabotage but another
factor, namely, the fact that the strikers remained out for 2 days,
which precipitated their discharge.
Although the respondent states in its answer to the amended com-
plaint that it was placed under the necessity of obtaining new em-
ployees immediately, there is no question presented here of the
respondent's refusing to reinstate strikers because their places had
been filled by new employees in order that the business might be
carried on. This is true for three reasons: first, the respondent's
action was not a refusal to reinstate for any reason but was admit-
tedly a permanent discharge designed to sever completely the
employer-employee relationship; 40 secondly, the discharges occurred
within 48 hours after the strike began before any permanent replace-
ments had been made; 31 and thirdly, even if the strikers' places had
been filled, where, as here, a strike had been caused in whole or sub-
stantial part by the respondent's unfair labor practices, the striking
employees are entitled to their former positions upon making appli-
cation therefor.32 Here the discharges rendered application obvi-
ously futile and, hence, unnecessary.
The respondent further contends that the discharge of the striking
employees was justified and that their reinstatement would not be
warranted because: (1) they went on strike without cause when
30 Compare with the Mackay case cited supra, where the Court stated that where a strike
has not been caused by any unfair labor practice, the employer has the right to fill the
strikers ' places in order to protect and carry on its business.
sl It appears that prior to the mass discharge of the strikers on February 29, the re-
spondent had made no permanent replacement of most of the strikers In fact, the re-
spondent unequivocally states in its answer to the amended complaint that the employees
"though their jobs were open to them [italics ours], failed to return to work for
more than 2 whole days [after the beginning of the strike ] and were given their final pay
by this respondent as of the date ending February 29, 1936, and are no longer employees
of the respondent . . Exhibits introduced at the hearing indicate that only two new
employees were hired in the production department and only one new employee was hired
in the distribution department after the strike began and before the strikers were dis-
charged . The record does not disclose whether or not these men were employed to replace
strikers The exhibits further reveal that a number of employees were transferred into
the two departments. but the dates of such transfers do not appear, nor does the record
disclose whether the transfers were permanent or merely to carry on the services until new
men could be procured . The latter would appear to be the more likely explanation of the
transfers even if they were made prior to the discharge . As to the three new employees,
we have already stated that it is not clear whether they were employed to replace strikers.
This information was available only to the respondent and was not brought forward.
In view of the statement in the respondent' s answer and since the record does not clearly
contradict this statement, we find that the strikers ' places were not filled at the time of
the discharge of the strikers
82Matter of Western Felt Works, a corporation and Textile Workers Organizing Com-
mittee, Western Felt Local, 10 N. L R B. 407.
EL PASO ELECTRIC COMPANY 239
proceedings were pending before the Board; (2) they violated the
truce agreement; (3) the strike was not called by a majority of the
members; (4) some of the strikers committed acts of sabotage at the
time they went on strike and during the sti ; (5) during the strike
some of the strikers committed an assault ed l attery on non-striking
employees; and (6) as employees of a pub2k0Jtftility they owed a duty
to the public not to strike until all other Avenues to adjust their
grievances had been exhausted. 3A
We will discuss each of the above points in order.
(1) We do not deem it necessary to discuss this contention further
since we have found that the I. B. E. W. went on strike not without
cause but for several reasons, one of which was the unfair labor
practices of the respondent.
(2) We have heretofore pointed out that the respondent first
breached the truce agreement by its action in preventing through
the injunction proceeding an adjudication by the Board of the issues
in controversy, and that, therefore, the respondent's attempt to in-
voke the aid of that document to support its discharge of every strik-
ing employee is futile. It should also be pointed out that Smith,
the respondent's president, informed the Committee of One Hundred,
which had been instrumental in bringing about the agreement, that
the respondent considered the agreement terminated in December
1935 when the complaint was quashed by the Board after the injunc-
tion proceedings had been instituted by the respondent.
(3) While again we do not regard the matter as material to the
issues, this contention is negatived by the fact that the evidence
establishes and we find that the strike was duly called by a com-
mittee which had been delegated that authority by a majority of the
I. B. E. W. membership.
(4) As stated above, there is evidence that some of the striking
employees, at the time they went on strike, removed gaskets, valves,
nuts, and bolts, drained water tanks, and did other like acts which
were designed to prevent the immediate operation of the Rio Grande
plant. Although we neither condone such acts nor minimize their
seriousness, we have found above for the reasons there stated that the
commission of the acts was not the cause of the strikers' discharge.
Since the acts were not the cause of the discharge, the respondent's
objection goes only to the question of whether or not the Board
should in the exercise of its discretion refuse to order reinstatement.
We shall discuss that question in the "remedy" section of this
Decision. The alleged acts of sabotage by strikers which occurred
after their discharge could not have been the cause of the discharge,
.and we so find. The appropriate remedy as to such individuals is
also considered in the "remedy" section of this Decision.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(5) The assault and battery certain striking employees committed
on non-striking employees occurred after their discharge and could
not have been the cause of their discharge , and we so find. The re-
spondent's objection gq;s , again to the question of whether or not
the Board should in thple^ rcise of its discretion refuse to order their
reinstatement. This question will be discussed in the "remedy"
section of this Decisiop, •,,,
(6) Section 13 of the Act provides: "Nothing in this Act shall be
construed so as to interfdre with or impede or diminish in any way
the right to strike." Neither in that section nor any other does the
Act distinguish between public utility employees and those other-
wise employed. Hence, there is no valid basis for the contention
that the nature of the employment of these employees justified their
discharge because they struck.
For the reasons hereinabove discussed we find that the respondent
discharged the strikers, not because they had engaged in sabotage
or other acts of violence, but on the contrary, because they were
members of the I. B. E. W. and had engaged in concerted activity.
We find that the respondent has discriminated in regard to the
hire and tenure of employment of the striking employees listed in
Appendices A, B, and C, thereby discouraging membership in the
I. B. E. W., and has thereby interfered with, restrained, and coerced
its employees in the exercise of their rights guaranteed in Section 7
of the Act.
G. The alleged refusal to bargain
Appropriate unit
The amended complaint alleges that (1) the power plant, (2) the
overhead line department, (3) the trouble department, (4) the Kel-
vinator and appliances department, and (5) the distribution garage
department, each constitutes an appropriate unit for the purposes
of collective bargaining. It is evident from the record that although
the I. B. E. W. contended that the employees in each of the above-
named subsections of the respondent's electrical division constituted
appropriate units, it desired to bargain jointly on behalf of all the
employees in such subsections.
It does not appear from the record that the wages, hours of work,
or any of the other conditions of employment of employees in any
of the subsections above enumerated and alleged to be appropriate
units, varies in material degree from that of employees in other
subsections within the production and distribution departments.
Furthermore, it does not appear that there is a marked difference in
the type of work performed by employees in any of such subsections
EL PASO ELECTRIC COMPANY 241
from the work performed by other employees in other subsections in
the production and distribution departments or from the work per-
formed by other employees in the electrical division. On the con-
trary, it is evident that a large degree of interdependence and func-
tional coherence exists between the various subsections in the pro-
duction and distribution departments and certain other subsections
in the electrical division. Moreover, the I. B. E. W. has, in effect,
recognized the inappropriateness of the units it contends to be ap-
propriate because the contract which the respondent and the com-
mittee of I. B. E. W. members entered into in February 1935 did not
segregate the employees in any such manner but merely provided
that the Committee was to be recognized as the bargaining agent for
all of the production and distribution employees for the life of the
contract. Likewise, the proposed contracts submitted to the respond-
ent by the I. B. E. W. in September 1935 did not segregate the em-
ployees in the production and distribution departments. We,
therefore, find that the employees in each of the subsections named
would not constitute appropriate units.
Inasmuch as we have found that the units alleged by the I. B. E. W.
are not appropriate ones, the I. B. E. W.'s claim to a majority in
appropriate units at the time of the alleged refusal to bargain cannot
be determined. Since on the basis of the record we do not find appro-
priate any of the units alleged to be appropriate, or that the
I. B. E. W. represented a majority of the employees within an appro-
priate unit or units, we will dismiss the complaint in so far as it
alleges that the respondent has refused to bargain collectively with
the I. B. E. W. within the meaning of Section 8 (5) of the Act.
IV. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order it to cease and desist therefrom and to take
certain affirmative actign designed to effectuate the policies of the
Act and to restore as nearly as possible the condition which existed
prior to the commission of the unfair labor practices.
We have found that the El Paso Electric Company Employees'
Representation Plan was a labor organization formed and maintained
through the respondent's assistance and that the El Paso Electric
Company Employees' Alliance is the same organization. We have
found that the Alliance is incapable of representing the employees'
interests since it is not free from the respondent's influence, that its
continued existence as a bargaining agency would operate as a deter-
rent to the employees' exercise of their right to self-organization and
would prevent the cease and desist provisions of our order from
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
having their full remedial effect. In order to effectuate the policies
of the Act we shall order the respondent to disestablish the Alliance
as the representative of any of the respondent's employees for the
purposes of collective bargaining. 33
The respondent entered into a contract with the Alliance in which
it is recognized as the exclusive bargaining representative of the
respondent's employees. This contract was in effect at the time of
the hearing. Since we have found that the Alliance was dominated
and supported by the respondent, and that the contract was an
integral part of the plan through which such domination and control
was achieved and perpetuated, we shall order the respondent to cease
giving effect to such contract or any renewal thereof.84
We have also found that the respondent has discriminated in
regard to the tenure of employment of the employees listed in
Appendices A, B, and C when they were on a strike partially caused
by the respondent's unfair labor practices, because of their member-
ship in and activity on behalf of the I. B. E. W. The respondent
urges that reinstatement should be denied to the strikers for various
reasons which we will now consider.
W. E. Brown, R. L. Kendall, Max Rau , Harry Grimm, C. Boze-
man, Harry Hantsche, and J. C. Blansit were alleged to have removed
gaskets, drained water tanks, and committed other similar acts at
the Rio Grande 35 power plant when the strike became effective. We
are of the opinion that since the respondent was willing to condone
these acts and did not on that basis deny the right of any employee.
to return to work, having stated in its answer that their jobs were
open to them despite such acts, the Board in the exercise of its dis-
cretion should not adopt under the circumstances of this case a
harsher criterion and refuse to order the reinstatement of these men.
The respondent urges that other employees are identified with acts
of sabotage committed later during the strike and that the Board
should not order the reinstatement of such employees. There is
considerable evidence that damage was done to the respondent's
property. The evidence identifying specific individuals with these
acts is found in the narrative taken from the record of the Federal
Court in the injunction proceeding already referred to.
13 National Labor Relations Board v . Pennsylvania Gr eyhound Lines , Inc., 303 U S. 261.
as See Matter of Williams Coal Company, et al and United Mine Workeis of America,
District No. 23, 11 N. L R B 579 ; Cf. National Labor Relations Board V Stackpole
Carbon Company, supra.
85 The respondent , in its answer and in its exceptions to the Proposed Findings , refers
to alleged sabotage in the Santa Fe station . The only evidence relating to the Santa Fe
station appears in the narrative of the testimony of Lonnie Bowen and O. I. Hunter in
the proceedings in the District Court, above referred to. The testimony of these two men
was with reference to the February 1935 strike, and does not refer to the February 1936
strike, which is here in issue. There is no evidence in the record that any injury was done
to the Santa Fe station in the 1936 strike.
EL PASO ELECTRIC COMPANY 243
This evidence discloses that on March 25, 1936, a policeman stopped
a car which was turning into the Albuquerque highway. The respond-
ent's transmission lines follow this highway outside of the town where
the car was stopped. Strikers Hantsche and Yates, listed in Appen-
dix C, were in the car. The policeman found in the car two rolls of
copper wire with 1-inch fish hooks attached.
There is evidence in the record that wire could be and had been
used to short circuit the respondent's transmission lines. Hantsche
and Yates have offered no explanation of the presence of the wire in
the,car, or of their presence in the neighborhood. Although the evi-
dence does not conclusively establish that the two strikers had em-
ployed or intended to employ the wire to injure the respondent's prop-
erty, it is sufficiently persuasive to require some explanation on their
part since it appears that such equipment was well suited to the
"shorting out" of wires and not to ordinary legal uses which would
explain its presence in the car. Since no explanation was forthcom-
ing, the Board finds that Hantsche and Yates either had injured or
intended to injure the respondent's property with the wire and in the
exercise of its discretion will not order their reinstatement.
The remaining evidence relating to alleged acts of sabotage with
which individuals were identified concerns strikers Artle, Papke, and
Byrd. We are of the opinion that this evidence is too indefinite and
inconclusive to warrant us in finding that these strikers were respon-
sible for the injuries to the respondent's property. The District Judge
before whom the injunction suit was tried made no finding that any
particular individual or individuals had engaged in acts injurious to
the respondent's property. Nor does the record disclose that the
strikers were ever prosecuted for the alleged acts of violence. We
shall, therefore, order their reinstatement.
No other strikers were identified with acts of sabotage occurring
after the discharge. Acts which some strikers may have committed
during a strike do not disqualify the other strikers from reinstate-
melit.86 The Norris-La Guardia Act 87 provides that no member of an
organization participating in a labor dispute shall be held responsible
in any court of the United States for the unlawful acts of individual
members except upon clear proof of actual participation in, or actual
authorization of such acts, or of ratification of such acts after actual
knowledge thereof. We are of the opinion that the Board should be
guided by this policy. The respondent argues that the acts of sabotage
were committed pursuant to a preconceived design or conspiracy of
the organizer for the I. B. E. W. and the membership. The evidence
30 See Matter of Republic Steel Corporation and Steel Workers Organizing Cononittee,
supra.
ar 29 U. S. C. A. 106.
244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
does not bear out this contention, nor does the record disclose any
basis for a finding of actual authorization or ratification of such acts,
far less the clear proof required by the Norris-La Guardia Act.
We find, therefore, that no individual striker, except Hantsche and
Yates, is sufficiently identified with the alleged sabotage committed
after the discharge to warrant the Board in refusing to order rein-
statement of any of the strikers except the two above named.
We now consider whether it would effectuate the purposes of the
Act to deny reinstatement to J. A. Walker, H. Grimm, R. E. Artle,
C. R. Hendricks, and W. E. Brown, the strikers who appear to have
committed assaults upon non-striking employees. While we do not
condone such acts, and while the Board, in its discretion, has withheld
orders for reinstatement of strikers because of crimes committed dur-
ing the course of strikes, in all such cases the crime has been a serious
offense, in most cases amounting to a felony rather than a misdemeanor
as here.38 The Board in its discretion should not deny reinstatement
to those men who allegedly committed an assault and we find that it
would not effectuate the purposes of the Act to deny such reinstate-
ment.'9
In order to restore the status quo and thereby effectuate the pur-
poses of the Act, we shall order the respondent to offer to all employees
listed in Appendix A, except J. M. Hammer, who has since died, imme-
diate and full reinstatement to their former positions, dismissing or
retransferring, if necessary, employees hired or transferred from other
positions since the commencement of the strike. We shall not order
the reinstatement of the employees listed in Appendix B since they
have signified that they do not desire reinstatement.
The respondent discharged the strikers on February 29, 1936. It is
impossible to ascertain when the strikers would have abandoned the
strike and returned to work in the absence of the respondent's action in
discharging them. Had the respondent not discharged the strikers,
their back pay would have commenced from the date when they
applied for work. However, by discharging them, the respondent
made it useless for the strikers to apply for their jobs. Since the un-
certainty is caused by the respondent's illegal act in discharging the
strikers because of their union activity, we will indulge in no pre-
sumption as to how long the strike might otherwise have lasted.40
Accordingly, in order to restore the status quo as nearly as possible
ss See Matter of Electric Boat Company and International Union of Marine and Ship-
building Workers of America, Local No. 6, 7 N. L. R. B. 572.
39 See Matter of Republic Steel, supra.
40 The average duration of strikes in 1938 was 23.3 calendar days. United States De-
partment of Labor, Bureau of Labor Statistics, Bulletin No 651, "Strikes in the United
States 1880-1936," p. 51.
EL PASO ELECTRIC COMPANY 245
under the circumstances, our order shall provide for back pay for the
discharged employees listed in Appendix A except J. M. Hammer,
from the date of the discharge, February 29, 1936.4-1 We shall order
the respondent to make the discharged employees, listed in ,Appendix
A, whole for any loss of pay they have suffered by reason of their
respective discharges by payment to each of them of a sum equal to
the amount he normally would have earned as wages from the date of
his discharge to the date of the offer of reinstatement, less his net
earnings 42 during said period.
If Hammer had not died subsequent to his discharge and prior
to the date of hearing, it is clear that in order to do equity and place
him in status quo, the respondent would be required to offer him re-
instatement to his former position, with back pay from February 29,
1936, to the date of his reinstatement.. The remedial power committed
to the Board by the Act is not affected by Hammer's death; only the
type of remedy is altered. The achievement of the ends toward which
the Act is directed necessarily requires that the injury done the dis-
criminatorily discharged employee be remedied in the most feasible
manner under all the circumstances. We find that in order to effectu-
ate fully the purposes of the Act, the respondent must compensate
Hammer's estate for his loss by reason of the discriminatory discharge;
Accordingly, we shall order the respondent to pay to his personal
representative the appropriate sum for distribution in accordance
with the laws of the State of Texas.
The employees listed in Appendix B who are not ordered reinstated,
should, nonetheless, be made whole for any loss they may have sus-
tained because of the discriminatory discharge in order to effectuate
the purposes of the Act. Accordingly, we shall order the respondent
to make whole the discharged employees, listed in Appendix B, for any
loss of pay they may have suffered by reason of their respective dis-
charges by payment to each of them of a sum equal to the amount he
normally would have earned as wages from February 29, 1936, to the
41 Reminyton Rand, Inc. V National Labor Relations Board, supra ; Black Diamond
Steamship Corporation V National Labor Relations Board, 94 F . ( 2d) 875 ( C. C. A. 2d),
certiorari denied 304 U S 579.
Any other discharged, employees who have died since the discharge should be treated in
the manner provided for Hammer 's claim below.
42 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent , which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 2590, 8 N. L R B. 440. Monies re-
ceived for work performed upon Federal , State, county , municipal, or other work -relief
projects are not considered as earnings , but, as provided below in the Order , shall be
deducted from the sum due the employee, and the amount thereof shall be paid over to
the appropriate fiscal agency of the Federal, State, county, municipal, or other govern-
ment or governments which supplied the funds for said work -relief projects
187930-39-vol 13-17
246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
date upon which lie obtained other regular and substantially equivalent
employment, less his net earnings 43 during said period.
We shall not order back pay for the strikers listed in Appendix C,
who we have found engaged in or intended to engage in sabotage and
who are not ordered reinstated.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III hereof,
occurring in connection with the operations of the respondent de-
scribed in Section I hereof, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
with a foreign nation, and have led and tend to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
VI. THE PETITION FOR INVESTIGATION AND CERTIFICATION OF
REPRESENTATIVES
We have found in subsection G of Section III hereof that the units
the I. B. E. W. claims to be appropriate are not appropriate. As
the I. B. E. W. does not claim that it represents a majority of the
employees in an appropriate unit, no question has arisen concerning
representation within an appropriate unit.44 We will, therefore, dis-
miss the petition for investigation and certification of representatives.
Upon the basis of the foregoing findings of fact and upon the
entire record in the consolidated cases, the Board makes the fol-
lowing :
CONCLUSIONS OF LAW
1. Local Union 585, International Brotherhood of Electrical Work-
ers, and the organization now known as the El Paso Electric Com-
pany Employees' Alliance, are labor organizations, within the mean-
ing of Section 2 (5) of the Act.
2. The respondent, by dominating and interfering with the ad-
ministration of the labor organization formerly known as the El
Paso Electric Company Employees' Representation Plan and now
known as the El Paso Electric Company Employees' Alliance and
contributing support thereto since July 5, 1935, has engaged in and is
engaging in unfair labor practices within the meaning of Section 8
(2) of the Act.
3. The strike of February 27, 1936, was a labor dispute within the
meaning of Section 2 (9) of the Act and the strikers remained
employees within the meaning of Section 2 (3) of the Act.
43 Net earnings" are defined in footnote 41, supra.
44 See Matter of American Woolen 'Company, Nat'l. and Providence Mills and Inde-
pendent Textile Union of Olncytiille, 5 N. L. R B. 144
EL PASO ELECTRIC COMPANY 247
4. The respondent, by discriminating in regard to the tenure of
employment of the employees listed in Appendices A, B, and C, there-
by discouraging membership in the I. B. E. W., has engaged in and
is engaging in unfair labor practices within the meaning of Section
8 (3) of the Act.
5. The respondent, by interfering with, restraining, and coercing
its employees in the rights guaranteed in 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.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7)
of the Act.
7. The respondent has not refused to bargain collectively with
the representative of its employees within the meaning of Section
8 (5) of the Act.
8. No question concerning representation has arisen in an appro-
priate bargaining unit.
ORDER
Upon the basis of the foregoing 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, El Paso Electric Company, El Paso, Texas, and its
officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) Dominating or interfering with the administration of the
El Paso Electric Company Employees' Alliance, or with the forma-
tion or administration of any other labor organization 'of, its em-
ployees, and from contributing support to the ' El Paso Electric
Company Employees' Alliance or to any other labor organization of
its employees ;
(b) Giving effect to any contracts it may have with the El Paso
Electric Company Employees' Alliance;
(c) Discouraging membership in Local Union 585, International
Brotherhood of Electrical Workers, or in any other labor organiza-
tion, by discriminating in regard to hire or tenure of employment
or any term or condition of employment;
(d) In any other manner interfering with, restraining, or coerc-
ing its employees 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 con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed by Section 7 of the Act.
248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Withdraw all recognition from the El Paso Electric Com-
pany Employees ' Alliance as representative of employees for the
purposes of dealing with the respondent concerning grievances, labor
disputes, wages, rates of pay, hours of employment, or conditions of
employment, and completely disestablish the El Paso Electric Com-
pany Employees' Alliance as such representative;
(b) Offer the employees listed in Appendix A, except J. M. Ham-
mer, immediate and full reinstatement to their former positions
without prejudice to their seniority and other rights and privileges;
(c) Make whole the employees listed in Appendix A, except J. M.
Hammer, for any loss of pay they have suffered by payment to each
of them respectively, of a sum of money equal to that which each
would normally have earned as wages from February 29, 1936, to
the date reinstatement is offered, less the net earnings of each of
them, respectively'45 during such period; deducting, however, from
the amount otherwise due to each of said employees, monies received
by each employee during said period for work performed upon Fed-
eral , State, county, municipal, or other work-relief projects, and pay
over the amount, so deducted, to the appropriate fiscal agency of the
Federal, State, county, municipal, or other government or govern-
ments which supplied the funds for said work-relief projects;
(d) Pay the personal representatives of J. M. Hammer, deceased, a
sum of money equal to the amount he would have earned as wages
from February 29, 1936 , to the date of his death, less his net earn-
ings 48 during such period ; deducting, however, from the amount
otherwise due to said personal representatives, monies received by
J. M. Hammer during said period for work performed upon Federal,
State, county, municipal, or other work-relief projects, and pay over
the amount, so deducted, to the appropriate fiscal agency of the Fed-
eral, State , county, municipal, or other government or governments
which supplied the funds for said work-relief projects;
(e) Make whole the employees listed in Appendix B for any
loss of pay they have suffered by payment to each of them, respec-
tively, a sum of money equal to that which each would normally
have earned as wages from February 29, 1936, to the date when each
of them, respectively, obtained regular and substantially equivalent
employment, less the net earnings 47 of each of them respectively,
during such period; deducting, however, from the amount otherwise
45 "Net earnings " are defined in footnote 42, supra.
b Ibid.
47 Ibid.
EL PASO ELECTRIC COMPANY 249
due to each of said employees , monies received by each employee dur-
ing said period for work performed upon Federal, State, county,
municipal , or other work-relief projects, and pay over the amount, so
deducted , to the appropriate fiscal agency of the Federal , State,
county , municipal , or other government or governments which sup-
plied the funds for said work-relief projects;
(f) Immediately post notices to its employees in such places as
,general bulletins are usually posted, and maintain such notices for a
period of at least sixty (60) consecutive days from the date of posting,
stating ( 1) that the respondent will cease and desist as provided afore-
said, and ( 2) that the El Paso Electric Company Employees ' Alliance
is disestablished as representative of employees for the purposes of
dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or conditions of employ-
ment ;
(g) Notify the Regional Director for the Sixteenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in so far as it alleges that the respondent has refused to bar-
gain with Local Union 585, International Brotherhood of Electrical
•NTorkers, within the meaning of Section 8 (5) of the Act.
IT 1.9 FURTHER ORDERED that the petition filed by Local Union 585,
International Brotherhood of Electrical Workers, for an investigation
and certification of representatives be, and it hereby is, dismissed.
APPENDIX A
R. E. Artle
H. J. Backler
P. J. Baxter
J. C. Blansit
C. M. Boseman
W. E. Brown
Jose Caro
M. Castillo
M. Diaz
J. Fierro
N. Gomen
H. Grimm
T. A. Gschwind
J. M. Hammer
L. E. Hall
W. H. Harrison
C. A. Hayes
C. R. Hendricks
A. W. Hodges
C. A. Hommel
I. K. Hudson
R. L. Kendall
K. Lambright
M. A. Rau
G. H. Reeves
J. H. Roberts
S. Salas
H. F. Scholtz
L. H. Sweetland
M. D. Thomas
Y. Vasques
J. E. Wailes
250 DECISIONS OF NATIONAL
C. B. Barclay
John X. Barkley
F. W. Bass
Cyril Beare
H. W. Bethea
J. E. Brown
R. C. Byrd
N. P. Clay
J. M. Curry
D. K. Daniel
J. C. Gallagher
LABOR RELATIONS BOARD
E. E. Hartnett
C. Knight
W. B. Knight
A. H. Lyon
C. S. Murrell
T. P. Orr
D. R. Papke
T. C. Robertson
J. G. Shill .
W. S. Trayler
R. S. Webber
APPENDIX B
E. H. McNeely
C. D. Terrell
J. E. Walker
C. Webb
APPENDIX C
H. W. Hantsche J. P. Yates
MR. WILLIAM M. LEisERSON took no part in the consideration of the
above Decision and Order.