Gulf Public Service Co.

National Labor Relations Board - Board Decisions

Dec 21, 1939

18 N.L.R.B. 562 (N.L.R.B. 1939)

In the Matter of GULF PUBLIC SERVICE COMPANY and INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 790
Cases Nos. R-1010 and C-1049.-Decided December 21, 1939
Electric Utility, Electric Appliance Sales and Service and Ice Industry-
Interference, Restraint , and Coercion-Unit Appropriate for Collective Bar-
gaining: power-plant operators , power-plant firemen , power-plant maintenance
men, assistant chief engineer , line superintendent , line foreman , line crew, serv-
ice men, and meter readers in the power and distribution departments, ex-
cluding office, clerical and supervisory employees not hereinbefore mentioned-
Representatives, : proof of choice : stipulation as to membership in Union-Col-
lective Bargaining : refusal to bargain in good faith , refusal to negotiate an
agreement with any labor organization , refusal to recognize the Union ; re-
spondent ordered to bargain collectively with the Union upon request-Strike:
caused by respondent 's unfair labor practices-Discrimination: sustained as to
employees discharged for participating in the strike ; dismissed as to one em-
ployee discharged prior to the strike-Reinstatement Ordered: all strikers-
Back Pay: ordered to all strikers from date of discharge until offer of rein-
statement-CompanyDominated Union.: assistance in formation and organiza-
tion of Cooperative ; respondent ordered to refuse recognition to Cooperative as
representative of employees-Investigation of Representatives : petition dismissed
in view of order to bargain.
Mr. Harry C. Duncan and Mr. 'E. P. Davis, for the Board.
Smithdeal, Shook cf Lefkowitz, by Mr. W. H. Shook and Mr. J. L.
Shook, of Dallas, Tex., and Norman, Stone c Norman, by Mr. Sum-
mers A. Norman, of Jacksonville, Tex., for the respondent.
Mueller & Mueller, by Mr. Karl H. Mueller, of Fort Worth, Tex.,
for the I. B. E. W.
Mr. Theodore W. Kheel, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges, amended charges, and supplemental charges duly
filed by International Brotherhood of Electrical Workers, Local 790,
herein called the I. B. E. W., the National Labor Relations Board,
herein called the Board, by Jay Oliver, Acting Regional Director for
the Sixteenth Region (Fort Worth, Texas), issued a complaint dated
18 N. L. R. B., No. 74.
562
I
GULF PUBLIC SERVICE COMPANY 563
July 29, 1938, and by Edwin A. Elliott, Regional Director for the
Sixteenth Region, issued a supplemental complaint dated August 11,
1938, against Gulf Public Service Company, Jacksonville, Texas,
herein called the respondent, alleging that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
merce 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. Copies of the complaint and supplemental
complaint accompanied by notices of hearing were duly served upon
the respondent and the I. B. E. W.
The complaint alleged in substance (1) that the respondent dis-
charged and refused to reinstate H. D. Stevens because of his activity
and membership in the I. B. E. W.; (2) that the respondent refused
to bargain with the I. B. E. W. in regard to conditions of employ-
ment, although the I. B. E. W. represented a majority of the em-
ployees of the respondent in an appropriate unit; (3) that in protest
against the refusal to bargain 13 named employees engaged in a strike
on July 9, 1938; (4) that the respondent discharged these 13 em-
ployees because of their membership and activity in the I. B. E. W.;
(5) that the respondent imported and employed strikebreakers in the
place of the employees discharged, requested the striking employees to
quit the I. B. E. W. and return to work, and hired armed guards
for the purpose of terrorizing the striking employees; and (6) by
each of these acts and by various other acts the respondent inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act. The supplemental
complaint alleged in substance that the respondent had dominated
and interfered with the organization and administration of a labor
organization known as the Gulf Public Service Company Employees
Cooperative, herein called the Cooperative. On August 5, 1938, the
respondent filed an answer to the complaint and on August 17, 1938,
a supplemental answer to the supplemental complaint denying that
it had engaged in the alleged unfair labor practices or that the re-
spondent was engaged in commerce within the meaning of the Act.
On August 6, 1938, the I. B. E. W. filed with the Regional Director
for the Sixteenth Region a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
the respondent and requesting-an investigation and. certification of
representatives pursuant to Section 9 (c) of the Act. On August 9,
1938, the Board, acting pursuant to Section 9 (c) of the Act and
Article III, Section 3, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, ordered an investigation and au-
thorized the Regional Director to conduct it and to provide for an
appropriate hearing upon due notice, and acting pursuant to Article
564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III, Section 10 (c) (2), and Article II, Section 37 (b), of said Rules
and Regulations, further ordered that the representation proceeding
and the proceeding with respect to the alleged unfair labor practices
be consolidated for the purposes of hearing. On August 11, 1938,
the Regional Director issued a notice of hearing, copies of which were
duly served upon the respondent and the I. B. E. W.
Pursuant to notice a consolidated hearing was held in Jacksonville,
Texas, from August 8 to August 10, 1938, inclusive, and from August
18 to September 6, 1938, inclusive, before L. Richard Insirilo, the
Trial Examiner duly designated by the Board. Prior to the hearing
the respondent moved to dismiss the complaint upon the merits and
on the ground that it was not engaged in commerce within the mean-
ing of the Act. This motion was renewed at the beginning of the
hearing, at the termination of the Board's case, and at the conclusion
of the hearing. At the commencement of the hearing, the Cooperative
moved to intervene in the proceedings. The Trial Examiner denied
.all of the aforesaid' motions. The Board, the respondent, and the
I. B. E. W. were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing upon the issues was
afforded all parties. During the course of the hearing the Trial
Examiner made rulings on other motions and on 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.
On November 12, 1938, the Trial Examiner filed his Intermediate
Report, copies of which were duly served upon the parties. He
found 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 Act, by
dominating and interfering with the formation and administration
of the Cooperative and by contributing support thereto, by discharg-
ing and refusing to employ H. D. Stevens and the 13 named em-
ployees who struck on July 9, 1938, and by refusing to bargain col-
lectively with the I. B. E. W. as the representative of a majority of
the employees of the respondent in an appropriate unit. He recom-
mended that the respondent cease and desist from engaging in the
unfair labor practices and, affirmatively, disestablish the Cooperative,
offer back pay to H. D. Stevens found to have been discriminatorily
discharged, but undesirous of obtaining reemployment with the re-
spondent, offer full reinstatement with back pay to the 13 other em-
ployees found to have been discriminatorily discharged, and bargain
with the I. B. E. W., upon request, as the exclusive representative of
the respondent's electrical employees, with respect to rates of pay,
wages, hours of employment, and other conditions of employment.
GULF PUBLIC SERVICE COMPANY 565
On November 29, 1938, the respondent filed exceptions to the Inter-
mediate Report and to various rulings of the Trial Examiner. On
February 28, 1939, and March 20, 1939, respectively, the respondent
and the I. B. E. W. filed briefs in support of their contentions.
On September 21, 1939, pursuant to notice served upon all the
parties, oral argument was held before the Board in Washington,
D. C. Only the respondent was represented before the Board and par-
ticipated in the hearing. The Board has considered the briefs filed
by the parties and the exceptions filed by the respondent. Except
for those which are consistent with the findings, conclusions, and
order set forth below, the Board finds the exceptions to be without
merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is a Delaware corporation with its principal office
and place of business at Jacksonville, Texas. It produces electricity
at its plant in Jacksonville, Texas, and transmits to and distributes
this electricity in 15 towns located in Texas, with an approximate
total population of 25,000. It is also engaged in the manufacture of
ice in Cherokee and Smith counties, Texas, and in the distribution of
ice in Jacksonville, Troup, Rusk, and Alto, Texas. In addition, it
sells, installs, and services refrigerators, stoves, and other electrical
appliances in the afore-mentioned towns as well as in Overton, Texas.
Approximately 80 persons are employed by the respondent to assist
in the operation of its various enterprises. Exclusive of labor and
salaries, the respondent's total operating expenses amount to
approximately $200,000.00 annually.
The respondent sells electrical appliances each year amounting in
value to $60,000, of which 90 per cent are obtained from the Westing-
house Electric Supply Company, of Dallas, Texas. These electrical
appliances are manufactured by the Westinghouse Electric Corpora-
tion 1 in States other than the State of Texas. The respondent also
purchases annually meters, transformers, cables, copper wire, insula-
tors, and other supplies amounting in value to approximately $12,000
from the Allis Chalmers Manufacturing Company and the Westing-
house Electric Company, both of Dallas, Texas, and the Nehring
1 The stipulation from which these and other facts pertaining to the business of the
respondent are taken , recites that the electrical appliances purchased from the Westing-
house Electric Supply Company had "come to rest" in Texas . This stipulation refers to
the Westinghouse Electric Supply Company , the Westinghouse Electric Company, and the
Westinghouse Electric Corporation. It is not clear wehther these are all the same or three
separate companies.
566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Electric Works of De Kalb, Illinois. Over 50 per cent of these sup-
plies are obtained from the Nehring Electric Works of Illinois.
Each year the respondent sells approximately two hundred tons of
ice to the American Refrigeration Transit Company and the Pacific
Fruit Express Company, both of Houston, Texas, for use in connec-
tion with the shipment of tomatoes. This ice is loaded by employees
of the respondent into refrigerator cars standing on the tracks of
the International-Great Northern Railroad Company and the Texas &
New Orleans Railway Company, which are railroads incorporated in
Texas with lines wholly in Texas but connecting with interstate rail-
road lines. The refrigerator cars, loaded with tomatoes, are trans-
ferred to the tracks of these connecting lines and some of the cars
are delivered to places outside of Texas.
In order to satisfy the needs of its customers in Overton and Arp,
Texas, the respondent purchases each month approximately 150,000
kilowatt hours of electricity from the Southwestern Gas & Electric
Company. The main plant of the Southwestern Gas & Electric Com-
pany is located in Shreveport, Louisiana, and the electricity produced
in Shreveport is transmitted through lines which the Southwestern
Gas & Electric Company maintains in Texas.2
For the distribution of the electricity which it buys and produces,
the respondent maintains 5,185 meters. It includes among the con-
sumers of its electricity, the Hurricane Refining Company, which pur-
chased 679,115 kilowatt hours for the operation of its plants from
April 1937 to March 1938. This company refines approximately
6,500 barrels of oil a day, the greater part of which it ships to places
outside Texas. Its principal raw material is crude oil, 75 per cent
of which is transported to its plants from Louisiana. The respondent
also -furnishes electricity to the following concerns in Texas which
either purchase raw materials in States other than Texas or ship
finished products to places outside Texas or both : the Crown Coca-
Cola Bottling Company, the Jacksonville Candy Company, the Aber
Box Company, the Montgomery Gin, the Shaw Gin, and the Latti-
more Gin. The operations of these companies would be materially
affected if the respondent should cease furnishing electricity. Ex-
cluding the Jacksonville Candy Company, whose annual purchase
of electricity is not given, these companies bought 90,093 kilowatt
hours of electricity from the respondent during the year commencing
in April 1937 and extending to March 1938. During the same period,
8 The Southwestern Gas & Electric Company also purchases electricity - generated by the
Texas Power and Light Company at its plant in Trinidad , Texas. The respondent contends
that the electricity which it draws from the lines of the Southwestern Gas & Electric Com-
pany is ultimately derived from the electricity produced in Trinidad , Texas. While we
cannot determine from the record to what extent the electricity bought by the respondent
has its source in Trinidad , Texas, it is clear that the sale of this electricity is made directly
to the respondent from the Southwestern Gas & Electric Company of Louisiana.
GULF PUBLIC SERVICE COMPANY 567
the respondent sold a total of 16,227 kilowatt hours of electricity to
United States Post Offices located in the towns serviced by the re-
spondent. This electricity was used to provide lighting and to
operate the motors of canceling machines. In addition to the rail-
roads mentioned above, the respondent sold electricity to the St.
Louis-Southwestern Railway Company, also a Texas corporation with
lines wholly within Texas but which connect with independent rail-
road systems operating in States other than Texas. These railroads
purchased 21,554 kilowatt hours of electricity from April 1937 to
March 1938, which they used for lighting passenger and freight sta-
tions and street crossings. For the same period, the respondent sold
45,476 kilowatt hours of electricity to the Two States Telephone
Company, the Gulf States Telephone Company, and the Southwestern
Bell Telephone Company. This electricity was used to furnish power
and lighting, facilitating the transmission of telephone calls within
Texas and from and through Texas to points outside of Texas. The
respondent also sold 5,367 kilowatt hours of electricity to The Western
Union Telegraph Company from April 1937 to March 1938.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers, Local 790, af-
filiated with the American Federation of Labor, is a labor organization
admitting to membership employees of the respondent in the power
and distribution departments.
Gulf Public Service Employees Cooperative is a labor organization
admitting to its membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The refusal to bargain collectively; the strike; the discharges;
interference, restraint, and coercion
1. The appropriate unit
The complaint alleges that a unit consisting of the employees in
the power and distribution departments 3 in Cherokee, Anderson,
Smith, and Rusk Counties, Texas, excluding office, clerical, and super-
visory employees, constitutes a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
This allegation was not denied by the respondent in its answer.
8 The complaint would confine the unit, In effect, to the employees engaged either In the
production , transmission , or distribution of electricity . It would omit the employees en-
gaged in the sale and distribution of electrical appliances and the manufacture , sale, and
distribution of ice.
283029-41-vol. 18-37
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent would, however, place a broader interpretation upon
the words "power and distribution departments" than the I. B. E. W.
It would include 12 employees in addition to the 22 employees who
both the respondent and the I. B. E. W. agree are included in the
appropriate unit.4 On the other hand, the I. B. E. W. insists upon
the inclusion of the line superintendent, a supervisory employee whom
it has admitted to membership since its inception, if the assistant
chief engineer, whom the respondent wants in the unit, is included.
The following classifications of employees are those which both par-
ties would include in the unit :
A. Power plant operators------------------ -------------- °[4]
B. Power plant firemen_ ----------------------------------- [3]
C. Power plant maintenance men--------------------------- [2]
D. Line foreman------------------------------------------- [1]
E. Line crew ----------------------------------------------- [5]
F. Service men -------------------------------------------- [5]
G. Meter readers ------------------------------------------- [2]
The respondent argues that the following classifications of employees
should also be included within the appropriate unit while the
I. B. E. W. contests their eligibility for inclusion :
H. Local managers°---------------------------------------- `[7]
1. Ice and/or electric employees 1°-------------------------- [4]
J. Purchasing agent and storekeeper ------------------------ [1]
A. Store clerk --------------------------------------------- [1]
In addition the parties are not in agreement concerning the following
employees :
L. Line superintendent------------------------------------- -[1]
M. Assistant chief engineer ---------- ----------------------- [1]
The respondent would exclude the line superintendent and include
the assistant chief engineer while the I. B. E. W. argues that if the
4 We will refer in our discussion of the appropriate unit to the situation existing prior to
July 9, 1938, when the members of the I. B. E. W. went out on strike allegedly as a result
of the unfair labor practices of the respondent . The striking employees were immediately
discharged and replaced by other employees . See Sections 3 and 4, infra, for a discussion
of the strike and the events preceding the strike.
6 Within the brackets are contained the number of employees in each classification prior
to July 9, 1938. Unless otherwise indicated , the employees worked in Jacksonville , Texas.
° The line crew is composed of linemen , ground men , and a truck driver who assists in
the work of the line crew.
° One service man worked in Jacksonville , Texas, and one each of the other four in Over-
ton, Arp, Alto , and Troup , Texas.
8 Although classified as meter readers, these men performed such other duties as meter
testing , patrolling street lights , collecting, and trouble shooting.
° The respondent had one local manager in charge of its operations in each of the follow-
ing towns : Overton , Arp, Frankston , Rusk , Bullard, Alto, and Troup , Texas.
1° The respondent bad two employees in this classification in Rusk, one in Alto, and an.
other in Troup , Texas. These employees divide their work between the sale and distribu-
tion of ice and the distribution of electricity . They are discussed more fully below.
GULF PUBLIC SERVICE COMPANY 569
assistant chief engineer is included, then the line superintendent also
falls within the appropriate unit 11
Collective bargaining between the I. B. E. W. and the respondent
prior to 1937 resulted in a contract between the I. B. E. W. and the
respondent which was in effect from July 1935 to July 1936. This
contract, which is the only contract executed by the respondent with
the I. B. E. W. or, so far as the record reveals, with any labor organ-
ization , recognized the I. B. E. W. as "sole bargaining agent for the
employees in the employ of the Gulf Public Service Company in the
Jacksonville Division in the Mechanical Department (power plant,
substation, distribution, and meter departments)' so long as the
majority of the employees in said department desire such representa-
tion." The contract specified which employees were included within
this general recognition clause in providing for minimum rates of
pay for particular classifications of employees. The following classi-
fications were included :
1. Line superintendent.
2. Line foreman.
3. Linemen.
4. Combination truck and line helper.
5. Line helper , apprentice , or groundmen.
6. Journeyman meter tester.
7. Journeyman meter setter.
8. Trouble man in Jacksonville.
9. All rural combination men.
"The respondent , has not been consistent in its claim with respect to the appropriate
unit. We have adopted the position of the respondent which we have outlined above from
its briefs and exceptions . However, in its exceptions the respondent states that it bad
"alleged that the appropriate unit was substantially the same as that found " by the Trial
Examiner and specifically adopted his finding of the appropriate unit as its own contention.
The Trial Examiner held that "All generation , production, transmission , distribution, and
maintenance electrical employees in respondent 's employ, including line foremen (who in
respondent 's set-up work with tools as part of the line crew under the supervision of the
line superintendent, his supervisory authority giving him no right to hire or fire but being
limited only to detailing men to particular work), and including combination trouble shoot-
ers and local managers , 1. e., competent trouble shooter, who being alone in small communi-
ties are given titles of local managers and who act partially in that capacity but who
devote the majority of their time to the actual maintenance of the electrical system, and
including power plant operators, power plant firemen, line men, meter readers , meter test-
ers, maintenance men, ground men in the line crew , and truck drivers in the line crew,
constitute an appropriate unit for the purposes of collective bargaining within the meaning
of Section 9 (b) of the National Labor Relations Act. Excluded from the appropriate unit
are the chief engineer , the line superintendent , and such other supervisory officials who
have no direct connection with the accomplishment of the electrical job, whether it be in
generation , transmission , distribution , or maintenance . Also excluded are all office em-
ployees, appliance salesmen , ice delivery men, and ice pullers." While the Trial Examiner
would include only the local managers who work alone , the respondent now insists upon
the inclusion of all the local managers . No mention is made by the Trial Examiner of the
ice and /or electrical employees , the purchasing agent, or the store clerk , yet the respondent
asserts that they should also be included . At the oral argument before the Board, counsel
for the respondent questioned the eligibility of the truck driver in the line crew. The
respondent had, however , included him in its listing of eligible employees both in its briefs
and exceptions and the Trial Examiner , whose findings the respondent adopted, also in-
cluded him in the unit . We point out below that he was covered by the contract between
the I . B. E. W. and the respondent.
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
10. Assistant chief engineer.
11. Watch engineer.
12. Turbine and switchboard operators.
13. Firemen.
14. Maintenance men.
The respondent terminated this contract after it had been in exist-
ence for 1 year.
The extent to which this contract covered the various classifi-
cations of the respondent's employees affords in large measure a
basis for resolving the conflicting claims of the respondent and the
I. B. E. W. with respect to the appropriate unit.
The following classifications may properly be included within the
appropriate unit: power-plant operators, power-plant firemen, power-
plant maintenance men, line foreman, line crew, service men, and
meter readers. The I. B. E. W. and the respondent would include
them, they are intimately associated either with the production,
transmission, or distribution of electricity, and the I. B. E. W. has
bargained for them in the past. On the other hand, we see no justi-
fication for the inclusion of the purchasing agent or the store clerk.
According to Frank C. Rand, district manager of the respondent, the
purchasing agent "keeps all the stores; takes charge of them, orders
them, purchases them, and takes care of them after they get to the
storeroom, and passes them out to the line department on their order."
Rand also testified that the purchasing agent did "a certain amount
of electrical distribution and transmission engineering." It is clear,
however, that he is primarily employed for the purpose of purchas-
ing, storing, and distributing supplies and materials. The purchas-
ing agent is assisted in this work by the store clerk who, as his title
suggests, has general clerical duties. These two employees are only
indirectly associated with the electrical operations of the respondent.
They have not been considered as part of the appropriate unit in
the negotiations which the I. B. E. W. has conducted with the re-
spondent in the past. In view of this fact and the nature of their
work, we are of the opinion that they should be excluded from the
unit.
Local managers.-The respondent's plant and principal offices are
located at Jacksonville. It also maintains offices in seven outlying
towns. These offices are in charge of employees known as local man-
agers who are the respondent's representatives in its dealings with
the public in each of these towns 12 The local managers in Frankston
12 The respondent insists upon the inclusion of these employees within the appropriate
unit, questioning their supervisory eapecity. Except for the local managers in Frankston
and Bullard, who are the only employees of the respondent in these two towns, the super-
visory status of the local managers is clearly established by the record . Rand , district
manager, testified that ". . . In the main , the men in each town are under the local man-
GULF PUBLIC SERVICE COMPANY 571
and Bullard are the only employees of the respondent in these two
towns while the local managers in the other five towns have under
them staffs of varying size.13 In addition to supervising the em-
ployees under them, the local managers also perform duties similar to
those of employees on their staffs. E. Paul Harlan, local manager in
Arp, Texas, stated that his duties consist of "running the office, billing
and collecting, contacting the public, and at present meter reading
and setting meters." Of course, the local managers in Frankston
and Bullard have no supervisory duties. They are, however, the
representatives of the respondent in these two towns.
The contract between the I. B. E. W. and the respondent, discussed
more fully above, does not cover either the two local managers in
Frankston and Bullard or the other five local managers . It is confined
exclusively to the employees "in the Jacksonville Division in the
Mechanical Department." The local managers, as we have stated
above, all work outside of Jacksonville. The contract does mention, in
specifying minimum rates of pay, employees designated as "rural com-
bination men." This is the only classification of employees who are
employed outside of Jacksonville and who are covered by the contract.
Nowhere in the contract are the local managers mentioned. A "rural
combination man," it appears, is another title for the employees whom
we have previously classed as service men. Marvin Ragsdale, president
of the I. B. E. W., testified that a "combination man" is a "meter reader
and service man." L. F. Dunlop, whom the respondent has classified
as a service man in Arp, Texas, testified that his duties include "trouble
calls, re-fusing transformers, running services, setting meters, reading
meters, servicing merchandise, also extensions, etc." The listing of his
duties demonstrates the appropriateness of the title "combination
man."
It is apparent from the record, therefore, that the employees have
not, in bargaining with the respondent, included the local managers.
Since the employees have established the propriety of a unit which does
not include the local managers, we see no reason for adopting a unit
contrary to this practice and custom. We shall therefore exclude
them 14
ager in that town ." Many incidents are set forth In the record wherein their supervisory
capacity is revealed. Thus, when the respondent sought to transfer H. D. Stevens from
Jacksonville to Overton , Rand mentioned that A. A. Hall , the local manager in Overton,
had asked for Stevens. An organizer of the Cooperative testified that he and two other
employees had called upon Lloyd Lattimore , local manager in Troup, and "asked permission
to see the employees."
13 Prior to the strike on July 9, 1938 , the local managers had the following number of
employees under the them : Lloyd Lattimore , Troup , Texas, eight ; Clyde Poore , Alto, Texas,
four ; A. E. Laney, Rusk, Texas, two ; A. A. Hall, Overton , Texas, two ; and E. Paul Harlan.
Arp, Texas, two.
14 Cf. Iowa Southern Utilities Company and Utility Workers Organizing Committee, Local
109 (C. 1. 0 .) et at ., 15 N. L. R . B., 580, wherein we excluded local managers from the
unit.
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ice and/or electrical employees.-We have, in using the term ice
and/or electrical employees, stated the issue with respect to these em-
ployees. The I. B.E. W. would exclude them as employees engaged
primarily in the ice business while the respondent contends that they
perform work in connection with the electrical business and are there-
fore eligible for inclusion within the appropriate unit. The four
employees involved are : James Salman, employed in Rusk, Texas,
Richard Warren in Troup, Texas, Roy Isgate in Rusk, Texas , and 0. K.
Chesshire in Alto, Texas. During the hearing, Rand identified Ches-
shire as an "ice plant operator," Warren as an " ice plant operator,"
Isgate as an "ice plant operator and electric serviceman," and Salman
as a "service man." Later in the hearing , Rand testified concerning
the duties of these men . The duties attributed to Isgate and Chesshire
were identical . Both were employed as "ice delivery man, ice plant
operator , patrolman, lineman helper, meter setting and removing,- ap-
pliance service and house wiring." Warren's duties differed only
slightly. They were defined to include "ice delivery , ice plant operator,
patrolman, switching , lineman helper , appliance service, appliance
delivery." While these three employees, that is Chesshire, Isgate, and
Warren, performed certain duties which were related to the electrical
business of the respondent , it is apparent that they were employed
primarily as icemen . We believe that they should be excluded from
the unit for that reason. It also appears that these men were not
included in the contract executed by the I. B. E. W . with the . respond-
ent. They did not work in or out of Jacksonville and cannot be classi-
fied as "rural combination men." For that reason, also , we are of the
opinion that they should be excluded from that unit.
James Salman appeared as a witness at the hearing . He testified
that his job requires him to work 4 hours in the morning in connection
with the ice business . This time is spent either in operating the ice
plant or in selling ice to customers . In the afternoon , he either reads
meters, which takes him about 21/2 days a month , collects bills, which
occupies about 6 hours -a month of his time , sets meters , delivers and
installs electrical refrigerators and other electrical appliances, and per-
forms other related jobs. While Salman divides his time equally
between duties connected with the electrical and ice business , we are of
the opinion that he should be excluded from the appropriate unit. The
exclusive bargaining contract which the I. B. E. W . obtained from the
respondent did not include a classification of employees which would
cover Salman . We have mentioned previously that the contract was
restricted , except for rural combination men, to employees who worked
in Jacksonville . Salman, who was employed in Rusk , cannot be classi-
fied as a "rural combination man." We shall therefore exclude him
from the appropriate unit.
GULF PUBLIC SERVICE COMPANY 573
Line superintendent.-The I. B. E. W. insists upon the inclusion of
the line superintendent if the assistant chief engineer, whom the re-
spondent considers to be in the appropriate unit, is included. While
both are supervisory employees, we believe that they fall within the
unit. Joseph Atkinson, the line superintendent, has been a member of
the I. B. E. W. since it was organized and was also a member of its
predecessors. ' The contract hereinbefore discussed covered his job by
providing a minimum wage for the line superintendent. It also
covered the assistant chief engineer, who was not a member of the
I. B. E. W. In view of this bargaining history, we feel that the line
superintendent as well as the assistant chief engineer should be in-
cluded, despite the supervisory nature of their jobs.
In the light of our foregoing discussion, we find that a unit consisting
of the power-plant operators, power-plant firemen, power-plant main-
tenance men, assistant chief engineer, line superintendent, line foreman,
line crew, service men, and meter readers in the power and distribution
departments in Cherokee, Anderson, Smith, and Rusk counties, Texas,
excluding office, clerical, and supervisory employees not hereinbefore
mentioned, constitutes a unit appropriate for the purposes of collective
bargaining and that said unit insures to employees of the respondent
the full benefit of their right to self-organization and to collective
bargaining and otherwise effectuates the policies of the Act.
2. Representation by the I. B. E. W. of a majority in the appropriate,
unit
The complaint alleges that the respondent refused to bargain collec-
tively with the I. B. E. W. at times between July 20, 1937, and July 9,
1938. The respondent's pay roll on July 1, 1937, contained the names
of 25 persons within the appropriate unit. Of this number, 16 were
members of the I. B. E. W. 15
The following changes occurred in the appropriate unit after July 1,
1937. In October 1937, L. A. Garner, who is not and never has been
a member of the I. B: E. W., was made a power-plant fireman. H. S.
Gilliam, a member of the I. B. E. W., was injured in October 1937 and
15 The parties stipulated that the membership records of the I . B. E. W. revealed that
the following employees were the 16 members of the I . B. E. W. in the appropriate unit :
B. W. Andrews ( line crew), J. A. Atkinson ( line superintendent ), R. T. Bellamy ( line man),
0. P. Caviness ( power -plant operator ), W. H. Crow (line crew), L. F. Dunlop ( service
man), L. P. Evans ( service man ), S. M. Fulton ( power-plant operator ), H. S. Gilliam (line
man), F. G. Gray ( line foreman ), M. Grey ( line crew ), A. Griggs ( power-plant fireman),
M. Hackett ( power-plant operator ), W. G. McKeown ( power-plant fireman), W. M. Rags-
dale (power-plant operator ), and J . J. Richardson ( meter reader ). The following em-
ployees in the appropriate unit were not members of the I. B. E. W. : G. Burrill (meter
tester), H. S. Dorrell ( service man ), T. J. Fields ( service man ), A. E. Galloway (assistant
chief engineer ), 0. L. Garner ( power -plant maintenance man), F. Jacobs (power-plant fire-
man), T . McKeown ( power-plant fireman ), W. P. Smith ( service man), and J. Wallace
( power-plant maintenance man).
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had not worked for the respondent up to the time of the hearing, draw-
ing compensation for his injuries. Although the record is not clear in
this respect, it appears that Gilliam's injuries are sufficiently perma-
nent to cancel his tenure as an employee. He cannot be considered as
an employee within the appropriate unit after the date of his injury.
0. P. Caviness, a member of the I. B. E. W., ended his employment
with the respondent on September 9, 1937. These changes reduced the
number of employees in the appropriate unit to 24, decreased the num-
ber of members of the I. B. E. W. therein to 14, and increased the num-
ber of employees who were not members to 10. This condition did not
alter until after the strike of July 9, 1938. Paul Evans, a member of
the I. B. E. W., failed to go out on strike and thereafter terminated his
membership in the I. B. E. W. He paid his dues to the I. B. E. W.
through June 30, 1938. In June 1938, Joseph Atkinson, the line super-
intendent, was demoted to Frank Grey's job as line foreman while Grey
was put to work in the line crew. This change, it appears, was only
temporary, resulting from a general reduction in the size of the line
crew.
We find, accordingly, that on July 20, 1937, and at all times there-
after, the I. B. E. W. had been designated and selected by a majority
of the respondent's employees in the appropriate unit. Pursuant to
Section 9 (a) of the Act, it was, therefore, on that date, and at all times
thereafter, the exclusive representative of all the employees in such
unit for the purposes of collective bargaining with respect to rates of
pay, wages, hours of employment, and other conditions of employment.
3. The refusal to bargain
In February or March, 1934,11 a union, known as the Brotherhood
of Edison Employees of America was organized by employees of the
respondent. This union changed its name to Brotherhood of Utility
Employees of America within 2 or 3 months after its inception. It
became affiliated with the I. B. E. W. in May 1935.
Shortly after the organization of the first union,17 a committee of
the union met with Frank C. Rand, district manager of the respondent,
16 Events occurring prior to July 5, 1935, the effective date of the Act, are considered in
order to determine the propriety of the respondent 's conduct since the effective date of the
Act, and not as the basis for any findings of unfair labor practices . See N. L. R. B. v.
Pennsylvania Greyhound Lines , Inc., et of ., 303 U . S. 281, rev'g 91 F. (2d) 178 (C. C. A.
3) and enf'g Matter of Pennsylvania Greyhound Lines , Inc., Greyhound Management Com-
pany, Corporation and Local Division No. 1063 of the Amalgamated Association of Street,
Electric Railway, and Motor Coach Employees of America , 1 N. L. R. B. 1; Matter of The
Western Union Telegraph Company, a corporation and American Communications Associa-
tion, 17 N. L. R. B. 34.
17 Our findings concerning the respondent 's refusal to bargain are based primarily on the
testimony of William Ragsdale, president of the I. B. E. W., and C . R. Carle, international
representative . Ragsdale traced the relations of the I. B. E. W. with the respondent while
Carle gave a complete , clear, and convincing account of the bargaining conferences which
preceded the strike of July 9, 1938. For the most part and except as indicated below, the
respondent neither denied nor contradicted the testimony of these witnesses in this respect
GULF PUBLIC SERVICE COMPANY 575
and informed him that the union desired to negotiate an agreement
with the respondent. Rand expressed surprise and told the committee
that he would have to think the matter over. Another meeting fol-
lowed in 2 or 3 weeks which was attended by C. C. Christ, vice president
of the respondent. Christ informed the committee at this time "that he
didn't see any use of a written agreement, that they [the respondent]
didn't make it a practice of having an agreement with the employees,
with the union." At a third meeting, Rand reaffirmed that "it just
wasn't the policy of the company to make written agreements with
employees."
In June 1935, after the union had affiliated with the I. B. E. W., a
committee of the I. B. E. W. met with Rand and read to him a proposed
agreement. From this document, the parties worked out another agree-
ment. However, when they reached the subject of salary, Rand threw
the agreement down on his desk and stated emphatically that he would
not sign it. Another conference was held on or about July 15, 1935, at
which time a proposed agreement was again read to Rand. This meet-
ing ended when Rand said that "we can't go into the salary question at
all, and I won't do it." Rand also told the committee during this
meeting that "he just didn't see any use of any working agreement
covering employees of the company, that they didn't cover the entire
group of employees." 18
Its inability to secure a contract from the respondent forced the
I. B. E. W. to strike on July 16, 1935. This strike continued for 1
week and gained for the employees a collective bargaining agreement
with the respondent. We have discussed certain provisions of this
contract in Section 1, supra, and we have mentioned that it granted
the I. B. E. W. exclusive recognition, so long as the majority of the
employees desire such representation, for a unit composed of employees
engaged in the electrical operations of the respondent. It also pro-
vided that it should be effective for 1 year from date and continue
thereafter from, year to year unless terminated by one of the parties.
The respondent exercised its right to terminate the contract at the
end of the first year. On July 24, 1936, the day after the contract
had expired, the respondent held a meeting with a committee of the
I. B. E. W. At this meeting the respondent was represented by L. L.
Ferree, its general manager, S. A. Norman, attorney, and Rand.
Ferree acted as spokesman for the respondent and informed the com-
mittee that he was in a position to offer the employees a raise in salary
if they would continue to work without a written agreement. He
added that "he didn't see any use of another agreement." After con-
ferring among themselves, the members of the committee elected to
is In effect , Rand was arguing that a unit composed only of employees in the electrical
operations of the respondent was inappropriate and that the unit should be industrial.
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continue to work without an agreement. They were thereafter
granted a wage increase.
The I. B. E. W. renewed its efforts to secure an agreement from the
respondent in June 1937 when Ragsdale and Carle, international
representative of the I. B. E. W., called on Rand. Rand informed
them that he would have to obtain authority from Ferree before he
could consider an agreement. On July 16, 1937, Carle, Ragsdale, and
another member of the I. B. E. W. met with Ferree, Rand, and Glen
Green,ls the respondent's auditor. Carle told Ferree that he had an
agreement in his pocket which he would like to present to him for
consideration. He explained carefully "that this agreement as drawn
for presentation was for negotiation purposes, and any clauses in it
was open for changes and discussion." Ferree asked which were the
most important provisions of the agreement. When Carle replied
that it "called for first a written agreement, and second, closed shop,
and third, wages increases for the members," Ferree answered "that
closed shop was out of the question, that there would be no wage in-
creases, and that under no condition would he sign a written working
agreement" with the I. B. E. W. or any other labor organization.
The I. B. E. W. made no further attempt to secure an agreement
with the respondent until June .1938. A committee then conferred
with Rand who told the members of the committee that he was with-
out authority to negotiate an agreement. Ragsdale then wrote to
Ferree who stated, in replying to Ragsdale's letter, that he had
"designated Mr. Rand to meet with you with authority to act and to
discuss with you working conditions with the operations of our
company in Texas."
On July 5, 1938, representatives of the I. B. E. W. met with Rand
and Green. Carle, acting as spokesman for the I. B. E. W., asked
Rand if he was authorized to discuss working conditions and, when
he had received an affirmative answer, read to him an agreement which
had been prepared as a basis for negotiations. When Carle finished
reading the agreement, Rand said to him, "You must have your sea-
sons mixed up. You think it is. Christmas instead of the 4th of July."
He added that "It was against the policy of the Gulf Public Service
Company to make a written agreement with any of their employees"
and that he was repeating this statement which Ferree had conveyed
to the I. B. E. W. the year before. Carle then attempted to convince
Rand that an agreement would be beneficial to the respondent as well
as to the employees. Rand replied that he disagreed with Carle. He
also claimed "that the members of Local 790 [I. B. E. W.] were in
the minority as compared with the entire employee pay roll of the
Gulf Public Service Company."
19 Also spelled Greene.
GULP PUBLIC SERVICE COMPANY 577
Rand was then asked to consider the agreement clause by clause and
state which portions were objectionable to the respondent. Rand re-
plied "that all of it was objectionable." When Carle persisted in
seeking to have Rand particularize the objectionable parts of the
agreement, Rand indicated a provision requiring the respondent to
supply the men who worked outdoors with rain coats, hats, and rub-
ber boots. Rand also averred that there would be no wage increases,
which the agreement called for, but probably a reduction in wages
with the elimination of the line crew. After a discussion of the possi-
ble elimination of the line crew, Carle asked Rand if it would not be
more satisfactory if all the electrical employees worked under the same
rules and regulations. Rand replied that "he did not believe that
would work satisfactory to the company." He added that it would
not be satisfactory for the employees in the electrical department since
on several occasions non-union employees had told him they did not
want to be represented by the I. B. E. W.
Carle then asked Rand if it would be possible to negotiate an agree-
ment covering only the members of the I. B. E. W. Rand replied
that the respondent had tried that and that it had proved very un-
satisfactory.20 Carle, nevertheless, continued in his effort to persuade
Rand that an agreement would be desirable. He pointed out that the
I. B. E. W. had contracts with 127 utility companies in the United
States and Canada and to the best of his knowledge they were all well
satisfied. Carle finally asked if it was possible to "negotiate some
kind of a written agreement" and Rand answered "that an agreement
could not be drawn up that would meet their [the respondent's]
approval to the extent that he would sign it and put it into effect."
Rand was then asked if he would not sign "even if the agreement was
good" and replied, "That is right." Rand's testimony is at variance
with Carle's statement in this respect. According to Rand, "Mr.
Carle asked me if I would sign any sort of a contract to which I
replied I would have to see the contract before I would give an
answer on that." We credit Carle's testimony.
The conference on July 5, 1938, ended when Carle informed Rand
that he had .to leave town. They then made an appointment for July
9, 1938.
The same parties attended this conference. Carle again tried to
read the agreement to Rand who stopped him, stating "that on the
prior meeting he had given all his reasons for not wanting to sign
a written working agreement" with the I. B. E. W. "and that nothing
had happened in the meantime to change his mind, so that it was
practically useless to go into the agreement again." The conference
20 The only contract in evidence , diacpssed above, granted the I. B. E. W. exclusive
recognition.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
continued, nevertheless, with the parties digressing into a discussion
of many collateral matters.
During the conference Rand was asked if he recognized the
I. B. E'. W. as the bargaining agent for the electrical employees.
He replied that he did not, explaining that non-union employees had
told him they did not wish to be represented by the I. B. E. W. The
conference ended when Green suggested that he had to leave. Carle
then told Rand that he "would be thinking over a way that would
make it possible for the local union [I. B. E. W.] to get on agreeable
terms with" the respondent. He asked Rand to do the same. Carle
added that there was no point in making a definite appointment for
a future meeting but that if he or Rand had a "brainstorm" they
could get together. That evening the members of the I. B. E. W.
voted to strike. We discuss this strike in Section 4, infra.
As we have stated above, the testimony given by Ragsdale and
Carle pertaining to the respondent's refusal to bargain with the
I. B. E. W. was in most material respects undenied and uncontra-
dicted by the respondent. Ferree and Christ, general manager and
vice president, respectively, did not appear at the hearing. Rand's
testimony, while at variance with the accounts given by Carle and
Ragsdale in certain details, tends to substantiate their testimony.
In view of all the facts presented in the record, we find that the
account we have previously given of the negotiations between the
respondent and the I. B. E. W., based primarily on the testimony
of Ragsdale and Carle, is, in all substantial respects, an accurate
description of these negotiations.
4. The strike and the discharges
On the evening of Saturday, July 9, 1938, after the bargaining
conference discussed above, the members of the I. B. E. W. convened
for the purpose of considering the results of this conference. Accord-
ing to the minutes of the meeting, read into evidence, Ragsdale and
Carle reported to the members that the meeting with Rand had been
very unfavorable. A discussion. of the respondent's attitude towards
the union ensued and thereafter the members voted unanimously to
strike in order to "try and enforce the Gulf Public Service Company
into an agreement." The names of the employees who participated
in the strike are listed in Appendix A.
On Monday, July 11, the Jacksonville Daily Progress, a local news-
paper, carried a report of the strike in which Rand was quoted as
saying, "All men who went out on strike have been removed from the
pay roll." Ragsdale, president of the I. B. E. W., immediately called
Rand on the telephone and asked if the statement attributed to him
in the newspaper was correct. Rand replied that it was. Ragsdale
GULF PUBLIC SERVICE COMPANY 579
conveyed this information to members of the I. B. E. W. Subse-
quently, each employee who had gone on strike received a check from
the respondent for services previously rendered on which was type-
written the words, "Full and Final Payment."
The record does not indicate precisely when the respondent replaced
the striking employees. Rand testified that a person named Vance
Bullard was hired 4 days after the strike, that Oren Sory was em-
ployed "about July the 11," and that other named employees were
hired "since the strike."
In discharging these striking employees, Rand carried out a threat
he had made to L. F. Dunlop in the summer of 1936 and to H. S.
Gilliam in May 1937. Dunlop was told that he would not have a
job with the respondent if he went on strike again and Gilliam was
informed that if the members of the I. B. E. W. engaged in a strike,
they would be replaced by other employees.
5. Conclusions with respect to the refusal to bargain, the strike, the
discharges, and the interference, restraint, and coercion
The course of negotiations between the respondent and the
I. B. E. W. reveal a persistent determination on the part of the
respondent to avoid the execution of an agreement with the I. B. E. W.
The respondent's attitude was made manifest immediately after the
organization of the Brotherhood of Edison Employees of America
when C. CC. Christ informed a committee of the union that he saw
no use for a written agreement and that it was contrary to the
respondent's practice to make agreements with its employees. The
respondent's refusal to negotiate an agreement forced the members
of the I. B. E. W. to strike to obtain a collective bargaining agree-
ment. While the I. B. E. W. thereby secured a written agreement,
the respondent lost none of its resolve to avoid contracting with a
labor organization. At the end of the first year, it terminated the
contract and offered the members of the I. B. E. W. an increase in
wages if they would agree to continue to work without a contract.
When the I. B. E. W. renewed its efforts to obtain an agreement in
June 1937, Ferree, acting for the respondent, countered with the state-
ment "that under no condition would he sign a working agreement"
with the I. B. E. W. or any other labor organization.
The conferences between the I. B. E. W. and the respondent on
July 5 and 9, 1938, reveal again the respondent's determination not
to make itself a party to an agreement with a labor organization.
Rand announced at the outset of the first meeting that "it was against
the policy of the Gulf Public Service Company to make a written
agreement with any of their employees."
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We have repeatedly held that an essential element of the collective
bargaining process is a willingness to embody the results of negotia-
tions in a signed agreement with the representatives of the em-
ployees.21 When the respondent announced and adhered to a policy
of avoiding the execution of any kind of an agreement with the
I. B. E. W., it thereby placed an insuperable obstacle in the path of
collective bargaining. The respondent's policy and practice were
tantamount to a refusal to bargain with the I. B. E. W. The re-
spondent also made clear to its employees, in this way, that it would
not engage in bona fide negotiations with the I. B. E. W. whether
or not it represented a majority of the employees within an appropri-
ate unit. In this manner, the respondent interfered with, restrained,
and coerced its employees in their right to self-organization and
collective bargaining.22
The bargaining conferences between the respondent and the I. B.
E. W. on July 5 and 9, 1938, were, as we have stated, severely preju-
diced by the respondent's refusal at the outset to enter into an agree-
ment with the I. B. E. W. In addition, the respondent indicated
an unwillingness to discuss and consider the proposals contained in
the contract prepared by the I. B. E. W. which, as Carle informed
Rand, were to be used merely as the basis for negotiations. Carle
assumed the entire burden of attempting to reach some mutually sat-
isfactory terms. Rand admitted on cross-examination that he had
tendered no counterproposals. In its brief, the respondent argues
that the record "shows many negotiations of an amicable nature."
It is true that the respondent was courteous to the committees of the
I. B. E. W. and granted them audiences when requested. As we have
pointed out, however, the Act does not guarantee merely the barren
right of discussion. It contemplates the consideration in good faith
of the proposals advanced by both parties with a view towards the
embodiment of those terms which are mutually satisfactory in an
agreement.23
The respondent not only opposed an agreement with the I. B. E. W.
and refused to bargain in good faith, but also denied the I. B. E. W.
recognition as the exclusive bargaining agency for the electrical
employees. Carle asked Rand at the conference held on July 9, 1938,
if he recognized the I. B. E. W. as the bargaining agent for the
electrical employees and received a negative reply. Rand did add, in
u Matter of Inland Steel Company and Steel Workers Organizing Committee and Amal-
gamated Association of Iron, Steel and Tin Workers of North America , Lodge Nos. 64, 1010,
and 1101, 9 N. L. R . B. 783; Matter of Western Felt Works, a corporation, and Textile
Workers Organizing Committee , Western Felt Local, 10 N . L. R. B. 407.
22 Matter of Brashear Freight Lines, Inc. and International Association of Machinists,
District No. 9, affiliated with the American Federation of Labor, 13 N. L. R . B. 191.
23 Globe Cotton Mills v. N. L . R. B., 103 F. ( 2d) 91 (C. C. A. 5), enf'g in part Matter of
Globe Cotton Mills and Textile Workers Organizing Committee, 6 N. L. R. B. 461.
GULF PUBLIC SERVICE COMPANY 581
explanation, "that the members of Local 790 [I. B.' E. W.] were in
the minority as compared with the entire employee pay roll of the
Gulf Public Service Company." However, since the expired agree-
ment established the appropriateness of the unit sought by the I. B.
E. W. and the respondent knew that the I. B. E. W. represented a
majority therein, this argument affords no " justification for the re-
spondent's refusal to bargain. The respondent made the same argu-
ment in June 1935 and thereafter recognized the I. B. E. W. as the
exclusive representative of the electrical employees. The contract,
in which this recognition was granted, fixed the appropriateness of
a unit composed of the electrical employees.
We find that the respondent has refused to bargain collectively
with the I. B. E. W. as the exclusive representative of its employees
in an appropriate unit. We also find that the respondent has, by
its refusal to bargain with the I. B. E. W. and by the statement and
enforcement of its policy against contracting with a labor organiza-
tion, interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
As a result of the unfair labor practices enumerated above, the
members of the I. B. E. W., whose names are listed in Appendix A,
struck on July 9, 1938. We find, accordingly, that the strike was
caused by the respondent's refusal to bargain with the I. B. E. W.
and by its unfair and coercive policy against contracting with labor
organizations. 24
On July 11, 1938, the respondent discharged the employees whose
names are listed in Appendix A because of their participation in the
strike. As we have found, these employees struck as a result of the
respondent's unfair labor practices. Under Section 2 (3) of .the Act,
they remained employees of the respondent. In discharging these
employees, the respondent has discriminated against them because
of their membership and activity in the I. B. E. W.25 We find, in
consequence, that the respondent has, by discharging these employees
because of their activity and membership in the I. B. E. W., dis-
24 Cf. Matter of Brashear Freight Lines , Inc. and International Association of Machinists,
District No. 9, affiliated with the American Federation of Labor, 13 N. L. R. B. 191.
See also Republic Steel Corporation v. N. L. R. B., 107 F. (2d) 472 (C. C. A. 3), enf'g
Matter of Republic Steel Corporation and Steel Workers Organizing Committee , 9. N. L.
R. B. 219.
w Cf. El Paso Electric Company, a corporation and Local Union 585, International Broth-
erhood of Electrical Workers; and N. P. Clay, et at., 13 N. L. R. B. 213, wherein we
said , " It is settled that an employer may not terminate Irrevocably the employer-employee
relationship simply because his employees , engaging in concerted activities for mutual aid
and protection , elect to remain away from their work on strike," citing Mackay Radio &
Telegraph Company v . N. L. If. B., 304 U. S. 333 , rev'g 92 F. (2d) 761 ( C. C. A. 9), and
enf'g as modified Matter of Mackay Radio & Telegraph Company, a corporation , and Ameri-
can Radio Telegraphists ' Association, San Francisco, Local No . 3, 1 N. L . R. B. 201, 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."
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
couraged membership in a labor organization and has thereby inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
B. The allegedly discriminatory discharge of Stevens
H. D. Stevens was hired in May 1935 and worked for the respond-
ent as a lineman in Jacksonville, Texas, until he quit or was dis-
charged on June 2, 1937. He was business manager of the I. B. E. W.,
which he joined in May 1935, a member of many committees of
the I. B. E. W., and active in soliciting new members.
Towards the latter part of May 1937, Rand, the respondent's dis-
trict manager, informed Stevens that he intended to transfer him
to Overton, Texas, to assume Paul Evans' job as service man in that
town. Evans, Rand explained, would be brought to Jacksonville to
take H. D. Gilliam's job as service man and Gilliam, who was
formerly a lineman, would be given Stevens' job in the line crew.
His transfer, Stevens was told, would be made at the same salary
he was earning in Jacksonville. Stevens protested, claiming that he
had never worked as a service man. He was told by Rand that he
would be sent to a refrigeration school in Dallas, Texas. The meet-
ing ended, according to Stevens' testimony, when he told Rand that he
would study the matter. Rand testified that Stevens said "I will try
it. I will try anything once." - Stevens was then told that the
transfer was to take effect on June 1, 1937.
On June 1, 1937, according to Rand, Stevens came to see him and
said that he had been offered two other jobs. Rand replied that he
would regret the loss of Stevens but would not stand in his way.
Stevens did not remember whether he had told Rand he was offered
two other jobs. He did not, however, deny that he had so informed
him.
The following day, Stevens reported for work with the line crew
in Jacksonville. When Rand received word that Stevens was work-
ing with the line gang, he had Grey, the line foreman, send Stevens
to his office. Stevens testified that Rand said to him at that time,
"What is this I hear about you not going to Overton?" Stevens
retorted, "I am not going." Rand then explained, "I am moving
Paul Evans down here now, and I am moving Gilliam out on your
job." Stevens protested, "I have got seniority out on the line crew,"
and Rand answered, "You don't have any seniority out there" and
"I will work these men where I please." Rand added that Hall, the
local manager in Overton, had especially asked-to have Stevens.
When Stevens persisted that he would not go to Overton, Rand said
to him "Well, you are through then. You will have to quit." Ste-
vens replied that he would not quit and Rand then said, "You are
GULF PUBLIC SERVICE COMPANY 583
through." Rand maintained, in his version of the meeting, that
Stevens had said, "Well, I don't want the job."
Whether Stevens quit or was discharged, we are not convinced that
his transfer was discriminatory. The three, persons involved in the
transfer were all members of the I. B. E. W. Evans, who was trans-
ferred from Overton to Jacksonville, had also started in the line crew
in Jacksonville and, according to Rand, had been elevated to his posi-
tion as service man in Overton. Stevens claimed that the transfer
was not a promotion. When he was asked, "You mean you just don't
regard it that way, or it isn't regarded that way?" he replied, "I
don't regard it that way, myself." Stevens was not a native of
Jacksonville and was living in a furnished apartment. He would
not have been greatly inconvenienced by the transfer, which was to
be made at the same salary he was earning. Overton is not far distant
from Jacksonville and the transfer would not have materially inter-
fered with his union activities. Furthermore, the transfer did not
come at a crucial point in the development and growth of the
I. B. E. W.
In view of all the circumstances, we find that Stevens was not
discriminated against because of his activity or membership in the
I. B. E. W.
C. Interference with and domination and support of the
Cooperative
As noted above, the respondent over a period of years steadfastly
refused to bargain collectively with the I. B. E. W. and discharged
those employees who struck in protest against its refual to bargain.
These unfair labor practices inevitably impressed upon the employees
the futility of seeking representation in an outside labor organiza-
tion and thereby lent impetus to the creation of an inside union.26.
Sometime after July 9, 1938, George Burrill, a meter tester em-
ployed in Jacksonville, Texas, conceived the idea of forming an in-
side union. On the morning of August 6, 1938, 2 days before the
commencement of the hearing in this proceeding, he and Paul Evans,
a service man in Jacksonville, began to organize an inside union.
Each, individually, asked for and obtained permission from Glen
Green, the auditor, to take off the rest of the day. Green was not
informed of the reason for their request. Burrill and Evans then
26 Cf. Matter of Texas Mining & Smelting Company and International Union of Mine,
Mill & Smelter Workers, Local No. 412, 13 N. L. R. B. 1163, wherein we said :
"Success of the respondent 's campaign against the Union entailed one of two results,
each destructive of employees ' rights ; either that the organizational efforts of the em-
ployees be crushed, or , as actually occurred , that such efforts be diverted into channels
more acceptable to the respondent . Both consequences were reasonably within the respgnd-
ent's contemplation when it resorted to unfair labor practices designed to destroy the
Union."
283029-41-vol. 18-38
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
enlisted the assistance of Floyd Carlton, a salesman for the respond-
ent, who agreed to drive them to and from the towns in which the
respondent maintained employees.
These three.employees left Jacksonville for Troup, Texas, at ap-
proximately 11: 30 a. m. Lloyd Lattimore, local manager in Troup,
was the first person with whom they conferred on their arrival in
that town. They asked him for permission to speak to the employees
in Troup about the Cooperative and for the name of a lawyer who
could assist them in its formation. Lattimore granted their request
to speak to the employees and suggested the name of Ward Chandler,
an attorney in Troup. Burrill and Evans.then went to Chandler's
office and discussed with him the organization of the Cooperative.
They prepared in his office cards which provided that the under-
signed designated three named employees as a committee "to repre-
sent me for the purposes of collective bargaining with my employer,
Gulf Public Service Company, and to represent me in a hearing
befora the National Labor Relations Board." The three named
employees were T. J. Fields, a service man in Troup, James Salman,
employed in Rusk, Texas, and Burrill. These employees were also
designated as president, vice president and secretary, and treasurer
of the Cooperative on a separate petition which was prepared after
Burrill, Evans, and Carlton had left Chandler's office.
From Chandler's office, Burrill and Evans returned to see Latti-
more and enrolled him as the first member of the Cooperative.
Having been granted permission to speak to the other employees in
Troup, Burrill and Evans proceeded to solicit them to join the Co-
operative. Three more members were secured in Troup.
Burrill, Evans, and Carlton then left Troup and drove first to
Overton, Texas, and subsequently to Alto and Rusk, Texas. In each
of these towns, they proceeded substantially as they had in Troup.
First they enrolled the local manager as a member and then solicited
the employees under him to join?? In Rusk, A. E. Laney, the local
manager, not only joined first but had Ethel Pledger, the cashier,
step out to the car in which Burrill and Evans were seated. Pledger
was then asked to and did join the Cooperative. Upon their return
to Jacksonville, Burrill and Evans enrolled many additional mem-
bers for the Cooperative on this and the next day, August 8, 1938.
The Cooperative has not asked for nor has it obtained recognition
from the respondent. On August 14, 1938, it held its first meeting.
27 This procedure was subject to slight exception . Dorrell, service man in Overton, was
asked to join before his local manager had become a member . Burrill and Evans claimed
that Mrs. Poore , cashier and wife of the local manager in Alto, joined before her husband,
Clyde Poore. However, on the petition designating Fields, Salman , and Burrill as officers
of the Cooperative , which employees signed as they joined the Cooperative , Clyde Poore's
signature appears before that of his wife's.
GULF PUBLIC SERVICE COMPANY 585
At this meeting, it was decided to reject the applications of A. E.
Laney, A. A. Hall, Clyde Poore, and Lloyd Lattimore, all local
managers. Poore and Laney were present at this meeting. Accord-
ing to the minutes of this meeting, their applications were rejected
"because of possible ineligibility."
Burrill explained that "we understood, at least, that company
officials wouldn't be allowed to participate in any fashion in the
employees' union" and "the question was raised as to whether under
the title ' they [local managers] had, whether they were officials, or
weren't officials."
It cannot be questioned that the local managers occupied super-
visory positions.28 This was recognized by the organizers of the
Cooperative when they asked Lattimore, local manager in Troup,
for permission to speak to the employees in Troup. Lattimore
granted this permission, suggested the name of an attorney to assist
in the formation of the Cooperative, and then joined the Cooperative
himself. He was the first person to become a member. When the
other employees in Troup were asked to and did join the Coopera-
tive, they observed Lattimore's name on the petition. With the
knowledge that their immediate superior had become a member,
these employees could logically infer the propriety of joining them-
selves. In each town in which they organized, Burrill, Evans, and
Carlton made certain to enroll the local manager as soon as possible
and then enlist the other employees in that town. This procedure
was followed with only slight, variations. Laney, local manager in
Rusk, not only signed first but had Pledger, cashier in Rusk, come
out to confer with, the organizers of the Cooperative. After the
Cooperative had obtained its membership, the local managers were
rejected as members "because of possible ineligibility." Their serv-
ices were no longer necessary. It is our opinion that the respondent
has, through its local managers, given aid and support to the Coop-
erative.-29
We find that the respondent has dominated and interfered with
the formation and administration of the Cooperative and has con-
tributed support thereto and that it has thereby interfered with,
28 See footnote 12, Supra.
29 In finding that the respondent gave aid and assistance to the formation of the Cooper-
ative through the activities of its local managers , we are not unmindful of the fact that
J. A. Atkinson , line superintendent In charge of the line crew , Is and has been for years a
member of the I. B. E. W. Qualifications for membership in a union are, of course, within
the control of the union and not the Board and a union might , if it considers it expedient,
admit supervisory employees to membership . However, when a supervisory employee joins
a labor organization while it is in the process of formation, and, in fact , precedes the
employees who work under him into the union, his membership therein inevitably leaves Its
mark upon the employees who are thereafter asked to join . Cf. Matter of Tennessee Cop-
per Company and A. F. of L . Federal Union No. 21164, 8 N . L. R. B. 575.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrained , and coerced its employees in the exercise of rights guar-
anteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III1 A and C above, occurring in connection with the operations of
the respondent described in Section I above, have a close, intimate,
.and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
THE REMEDY
As we have found that the power-plant operators, power-plant
firemen, power-plant maintenance men, assistant chief engineer, line
superintendent, line foreman, line crew, service men, and meter read-
ers in the power and distribution departments in Cherokee, Anderson,
Smith, and Rusk counties, Texas, constitute a unit appropriate for
the purposes of collective bargaining and that the I. B. E. W. has
been designated as the exclusive bargaining representative by a
majority of the employees within this unit, we shall order the re-
spondent upon request to recognize the I. B. E. W. and bargain with
it as such exclusive representative.
We have also found that the respondent discharged the employees
listed in Appendix A, who engaged in the strike, on July 11, 1938,
because of their membership and activity in the I. B. E. W. We will,
accordingly, - order the respondent to offer to reinstate these em-
ployees to their former or substantially equivalent positions.
Inasmuch as the respondent discharged the strikers on July 11,
1938, it is impossible to ascertain when the strikers would have
abandoned the strike and returned to work in the absence of the re-
spondent's action in discharging them. Had the respondent not dis-
charged 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 uncertainty is caused by the respondent's
illegal act in discharging the strikers because of their union activity,
we will indulge in no presumption as to how long the strike might
otherwise have lasted.30 Accordingly, in order to restore the status
quo as nearly as possible under the circumstances, our order shall
provide for back pay for the discharged employees listed in Ap-
°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.
GULF PUBLIC SERVICE COMPANY 587
pendix A from the date of the discharge, July 11, 1939.31 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 32 during said period.
Since we have found that the respondent has dominated and inter-
fered with the formation and administration of the Gulf Public
Service Employees Cooporative and has contributed support to it, we
shall order the respondent to refuse to recognize it as the representa-
tive of any of its employees for the purpose of collective bargaining.
THE PETITION
We have determined the appropriate bargaining unit and found
that a majority of the respondent's employees within that unit had
designated the I. B. E. W. as their representative for the purposes of
collective bargaining. Accordingly, we shall dismiss the petition of
the I. B. E. W. for certification.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Local .790,
and Gulf Public Service Employees Cooperative, are labor organiza-
tions, within the meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and adminis-
tration of, and contributing support to, the Gulf Public Service
Employees Cooperative, the respondent has engaged in and is engag-
ss Cf. Matter of El Paso Electric Company, a corporation and Local Union 585, Interna-
tional Brotherhood of Electrical Workers; and N. P. Clay, et at., 13 N. L. R. B. 213;
see also Remington Rand, Inc., v. N. L. R. B., 94 F. (2d) 862 (C. C. A. 2). cert. denied
304 U. S. 576, enfg Matter of Remington Rand, Inc. and Remington Rand Joint Protective
Board of the District Council Office Equipment Workers, 2 N. L. R. B. 626; Black Diamond
Steamship Corporation v. N. L. R. B.,,94 F. (2d) 875 (C. C. A. 2), cert. denied 304 U. S.
579, enf'g Matter of Black Diamond Steamship Corporation and Marine Engineers' Bene-
ficial Association, Local No. 33, 3 N. L. R. B. 84.
32 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 re,pondent, 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 Amer-
ica, Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R. B. 440. Monies received
for work performed upon Federal, State, county, municipal, or other work-relief projects
are not considered as earnings, but shall be deducted from the sum due the employee, and
the amount thereof shall be paid over to the appropriate fiscal agency of the Federal,
State, county, municipal, or other government or governments which supplied the funds
for said work-relief projects.
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing in unfair labor practices, within the meaning of Section 8 (2)
of the Act.
3. The power-plant operators, power-plant firemen, power-plant
maintenance men, assistant chief engineer, line superintendent, line
foreman, line crew, service men, and meter readers employed by the
respondent in the power and distribution departments in Cherokee,
Anderson, Smith, and Rusk counties, Texas, excluding office, clerical,
and supervisory employees not hereinbefore mentioned, constitute a
unit appropriate for the purposes of collective bargaining, within the
meaning of Section 9 (b) of the Act.
4. International Brotherhood of Electrical Employees, Local 790
was on July 20, 1937, and at all times thereafter has been the exclusive
representative of all employees in such unit for the purposes of
collective bargaining, within the meaning of Section 9 (a) of the Act.
5. By refusing and continuing to refuse to bargain collectively with
International Brotherhood of Electrical Employees, Local 790, as the
exclusive representative of the employees in the above-stated unit, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (5) of the Act.
6. By discriminating in regard to hire and tenure of employment
of the employees listed in Appendix A, and thereby discouraging
membership in a labor organization , the respondent has engaged in and
is engaging in unfair labor practices, within the meaning of Section
8 (3) of the Act.
7. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
8. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
9. The respondent has not discriminated against H. D. Stevens in
regard to hire or tenure of employment or terms or conditions of
employment, within the meaning of Section 8 (3) of the Act. '
ORDER
Upon the basis of the 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,
Gulf Public Service Company, and its officers, agents, successors, and
assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Electrical Workers, Local 790, or any other labor organization of its
1
GULF PUBLIC SERVICE COMPANY 589
employees by discriminating in regard to hire or tenure of employ-
ment or any terms or conditions of employment;
(b) Dominating or interfering with the administration of Gulf
Public Service Employees Cooperative or dominating or interfering
with the formation or administration of any other labor organization
of its employees or contributing support to Gulf Public Service
Employees Cooperative or to any other labor organization of its
employees ;
(c) Refusing to bargain collectively with International Brother-
hood of Electrical Workers, Local 790, as the exclusive representative
of the power-plant operators, power-plant firemen, power-plant main-
tenance men, assistant chief engineer, line superintendent, line fore-
men, line crew, service men, and meter readers in the power and
distribution departments in Cherokee, Anderson, Smith, and Rusk
counties, Texas, excluding office, clerical, and supervisory employees
not hereinbefore mentioned, in respect to rates of pay, wages, hours
of employment, and other conditions of employment;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join,' pr 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 and protection, as guaranteed in Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action, which the Board. finds
will effectuate the policies of the Act:
(a) Offer to. the employees listed in Appendix A immediate and
full reinstatement to their former or substantially equivalent posi-
tions, without prejudice to their seniority and other rights and priv-
ileges, dismissing, if necessary, any employees hired by the respondent
since July 9, 1938;
(b) Make whole the employees named in Appendix A, for any
losses of pay they have suffered by reason of their discharge, by
payment to each of them of a sum of money equal to that which he
would normally have earned as wages from July 11, 1938, to the date
of the respondent's offer of 'reinstatement, less his net earnings during
that period, deducting, however, from the amount otherwise due to
him monies earned by him during that 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 supplied the funds for said work-relief projects;
(c) Refuse to recognize Gulf Public Service Employees Coopera-
tive as a representative 'of any of its employees for the purpose of
590 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
dealing with the respondent concerning grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions of
work ;
(d) Upon request, bargain collectively with International Brother-
hood of Electrical Workers, Local 790 as the exclusive bargaining
representative of the employees in the unit found appropriate;
(e) Immediately post notices to its employees in conspicuous places
throughout its plant and offices stating that the respondent will cease
and desist in the manner set forth in 1 (a), (b), (c), and (d), that
it will take the affirmative action set forth in 2 (a), (b), (c), and (d)
of this Order, that the respondent's employees are free to become or
remain members of the International Brotherhood of Electrical
Workers,' Local 790, and that the respondent will not discriminate
against any employee because of membership or activity in that
organization; and maintain such notices for a period of sixty (60)
consecutive days from the date of posting;
(f) 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 therewith.
AND IT IS FURTHER ORDERED that the complaint be, and it is hereby
dismissed, to the extent it alleges that the respondent has engaged
in unfair labor practices in connection with the discharge of H. D.
Stevens.
AND IT IS FURTHER ORDERED that the petition for certification of
representatives, filed by International Brotherhood of Electrical
Workers, Local 790 be, and it hereby is, dismissed.
APPENDIX A
J. A. Atkinson.
B. W. Andrews.
R. T. Bellamy.
W. H. Crow.
L. F. Dunlop.
S. F. Fulton.
F. Gray.
M. Grey.
A. Griggs.
M. L. Hackett:
W. G. McKeown.
W. M. Ragsdale.
J. J. Richardson.