Iowa Electric Light and Power Co.

National Labor Relations Board - Board Decisions

Feb 12, 1942

38 N.L.R.B. 1124 (N.L.R.B. 1942)

In the Matter Of IOWA ELECTRIC LIGHT AND POWER COMPANY and INTER-
NATIONAL UNION OF OPERATING ENGINEERS, LOCAL 275, AFFILIATED
WITH THE A. F. OF L.
Case No. C-1939.-Deeided February 12,191j0
Jurisdiction : electric utility.
Unfair Labor Practices
In General: employer held responsible for activities of its assistant chief engineer
notwithstanding his eligibility to membership in either of the labor organizations
involved.
Interference, Restraint, and Coercion: calling meeting and criticizing employees
for joining charging union; giving aid and assistance to_a rival affiliated
organization pursuant to its assistant chief engineer's solicitation of member-
ship therein.
Collective Btvrgavnwg: charges of refusal to bargain collectively, dismissed
Remedial Orders : employer ordered to cease and desist unfair labor practices
Mr. Henry W. Lehmann, for the Board
Mr. Frank C. Byers and Mr. Owen Elliott, of Cedar Rapids, Iowa.
for the respondent.
Mr. Leo P. Beasley, of Omaha, Nebr., for the Engineers.
Mr. David C. Bleakley, of Cedar Rapids, Iowa, and Mr. J. Harris
Igoe, of Austin, Minn., for the I. B. E. W. and Local No. 931.
Mr. Lawson 717imberly, of Washington, D. C., for the I. B. E. W.
Mr. George Turitz, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges r duly filed by International
Union of Operating Engineers, Local 275, affiliated with the A. F. of
L., herein called the Engineers, the National Labor Relations Board,
herein called the Board, by the Regional Director for the Eighteenth
Region (Minneapolis, Minnesota), issued its complaint dated April
1 The original charge was filed on January 11, 1941, and the amended charge on Feb-
ruary 15, 1941
38 N. L. It. B., No. 209.
112'4
IOWA E'LE'CTRIC LIGHT AND POWER COMPANY 1125
4, 1941, against Iowa Electric Light and Power Company, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of
the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint, accompanied by notice of hearing thereon
and copies of the amended charge, were duly served upon the respond-
ent, the Engineers, International . Union of Operating Engineers,
herein called the Engineers' International, and International Broth-
erhood of Electrical Workers, herein called the I. B. E. W.
With respect to the unfair labor practices the complaint alleged
in substance that the respondent (1) since on or about December 20,
1940, suggested, advised, urged, threatened, and warned its employees
not to become or remain members of the Engineers and to become
members of International Brotherhood of Electrical Workers, Local
Union No. 931, herein called Local No. 931; 2 (2) on or about Janu-
ary 3, 6, and 21, 1941, and on other subsequent dates, and at all times
thereafter, refused and failed to bargain collectively with the Engi-
neers as the exclusive representative of its employees in an appropri-
ate unit although on and before and at all times since said dates the
Engineers was the exclusive representative of all employees in such
unit; and (3) by the foregoing and other acts interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On April 16, 1941, the respondent filed its answer, in which it
admitted that it refused to bargain collectively with the Engineers
"until such time as its legal right to so bargain is established," denied
the appropriateness of the unit described in the complaint, and denied
all other allegations of the complaint with respect to the unfair labor
practices. The answer further alleged, among other things, that
the I. B. E. W. had asserted a claim, based upon a subsisting contract
with the respondent, that the I. B. E. W. "and/or local unions" of
the I. B. E. W. had the right to represent certain employees of the
respondent, including, among others, the employees in the unit set
forth in the complaint; that the respondent is ready and willing to
bargain with "such representatives of its employees as may be legally
entitled to bargain"; but that the respondent " is unwilling to assume
the determination as to the lawful bargaining agency of its employees
until such bargaining agency has been finally and legally determined
and established." On April 18, 1941, the I. B. E. W. and Local No.
931 filed with the Regional Director a motion to intervene, which
2The complaint as served referred to Local Union No 971 of the I B. E W At the
hearing the complaint was amended , without objection , to set foi th the above local
number.
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
motion was granted by the Trial Examiner at the beginning of the
hearing mentioned below, with the proviso that the intervention
would be confined to the interests of said intervening unions in the
proceedings.3
Pursuant to notice a hearing was held at Cedar Rapids, Iowa, from
April 21 to 28, 1941, before Charles E. Persons, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the re-
spondent, the Engineers, the I. B. E. W., and Local No. 931 were
represented at the hearing and participated therein.4 Full opportu-
nity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties. At
the close of the Board's case the Trial Examiner granted its motion
to conform the pleadings to the proof. During. the course of the
hearing the Trial Examiner made a number of 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.
At the conclusion of the hearing oral argument, participated in by the
intervenors and the respondent, was held before the Trial Examiner,
and thereafter said parties filed briefs with the Trial Examiner.
On or about July 28, 1941, the Trial Examiner filed his Intermedi-
ate Report, copies of which were duly served upon the parties, in
which he found that the respondent had engaged in and was engag-
ing in unfair labor practices affecting commerce, within the meaning
of Section 8 (1) and (5) and Section 2 (6) and (7) of the Act, and
recommended that the respondent cease and desist from such prac-
tices and that the respondent, upon request, bargain collectively with
the Engineers as the exclusive representative of the employees in
the unit set forth in the complaint.
On or about August 15 and 18, 1941, the respondent and the inter-
venors respectively requested oral argument, and on September 2,
1941, they filed their respective exceptions to the Intermediate Re-
port.5 On September 12, 1941, the respondent filed a brief with the
Board. On November 4, 1941, pursuant to notice, a hearing was held
before the Board at Washington, D. C., for the purpose of oral argu-
ment. The respondent and the I. B. E. W. were represented by coun-
sel and participated in the hearing. The Board has considered the
briefs and the exceptions to the Intermediate Report and, except as
$ On April 15, 1941, the respondent filed a motion that the I. B E W. be made a party
in the proceeding, but after the granting of the above motion to intervene, the respondent
withdrew its motion.
4 The representation and participation of the I B. E W and Local No 931 at the hearing
was joint. They will be referred to jointly as the intervenors.
5 The I. B. E. W. filed two sets of exceptions, one separately, and one jointly with Local
No 931.
IOWA ELECTRIC LIGHT AND POWER COMPANY 1127
they are consistent with the findings, conclusions, and order below,
finds the exceptions without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Iowa Electric Light and Power Company, an Iowa corporation
having its principal place of business in Cedar Rapids, Iowa, is en-
gaged, principally, in the generation, transmission, sale, and distribu-
tion of electrical energy. It also produces and distributes steam and
fuel gas and operates an interurban electric railway known as the
Cedar Rapids and Iowa City Railway. It carries on its operations in
an area about 200 miles long, east and west, and 50 to 60 miles wide,
north and south, mainly in the 9 adjoining counties of Cedar, John-
son, Linn, Benton, Tama, Marshall, Story, Boone, and Greene, but
also in 12 other counties bordering on the 9, all within the State of
Iowa. In this area the respondent operates, besides its electric rail-
way, 7 power plants for the generation of electricity,6 numerous local
electrical distribution systems, a number of gas and steam manufac-
turing plants and distributing systems, and a gas pipe line. The
respondent has about 55,000 meters installed, of which approximately
45,000 are in residences. All the electrical power plants and the elec-
trical distributing systems are interconnected by transmission lines,
so that power from each plant is available to and is drawn upon by
the respondent's entire system. The extent and exact time of each
electrical power plant's operation is determined and controlled by
the respondent's load dispatcher, stationed at Cedar Rapids. Not
all 7 plants are simultaneously operated except during periods of
"peak" demand.
The respondent's properties are divided into a number of divisions,
including, apparently, one based upon each of the power plants.' In
each division the employees are grouped into departments, the number
and, to some extent, the scope, of which vary from division to divi-
sion." The employees number approximately 800, including about
119 employees engaged in the respondent's power plants: The power-
plant employees are distributed as follows : Cedar Rapids 77, Boone 16,
Marshalltown 15, Perry 5, Nevada, Toledo, and Jefferson 2 each. The
4 The power plants are located in Cedar, Rapids, Boone, Marshalltown, Perry, Jefferson,
Nevada, and Toledo
'The divisions aie grouped into three districts known, respectively, as the Cedar Rapids,
Marshalltown, and Boone, districts
9 Each division based upon a power plant has a power plant department and a transmis-
sion or line department At least five of the divisions have service departments either sepa-
rate or in combination with another department. Some divisions have gas plant and gas
service departments, whereas others appear not to. The Marshalltown division has a bus
department. The respondent also has a maintenance department
1128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 power plants last named are operated by Diesel engines. All the
respondent's operations and properties are directly supervised by
officials in its Cedar Rapids office and all contracts with reference
to labor relations are made on behalf of the respondent by an indi-
vidual located in Cedar Rapids.
During 1940 the respondent purchased for use in its business coal,
coke, steel, supplies, and other products and materials, valued at
approximately $2,000,000, of which approximately 60 percent were
purchased in States other than Iowa and shipped to the respondent's
various plants in Iowa. The respondent's gross income in 1940 was
approximately $6,000,000.
This proceeding is concerned primarily with the Cedar Rapids power
plant, which generates approximately 70 percent of all electricity
generated by the respondent. In 1940 the respondent purchased fuel
and other products and materials for use in connection with its Cedar
Rapids power plant costing approximately $630,000, of which about
$378,000 worth were purchased outside Iowa and shipped from their
points of origin to the respondent's plant in Cedar Rapids. During
the same period the respondent purchased equipment and materials for
use in connection with the maintenance and operation of its trans-
mission lines in the Cedar Rapids district costing about $770,000, of
which about 60 percent were purchased outside Iowa and shipped to
Iowa.
The Cedar Rapids and Iowa City Railway, the electric railway
operated by the respondent, obtains all its electricity from the re-
spondent's Cedar Rapids plant. In 1940 the railway's gross income
from transportation was about $539,000, including $490,000 for freight
service. Approximately 80 percent of the freight handled by the
railway is consigned to or from States other than Iowa.
In 1940 the respondent's gross income from the sale of electricity
generated at the Cedar Rapids power plant was approximately
$3,000,000, including $1,331,958 received for electricity sold in Cedar
Rapids. The respondent is the sole distributor of electricity in Cedar
Rapids, and all electricity which it distributes there is generated at
the Cedar Rapids power plant. The respondent supplies and sells
electricity generated at the Cedar Rapids power plant to Chicago,
Rock Island and Pacific Railway Company, Chicago and Northwestern
Railroad Company, and Chicago, Milwaukee, St. Paul and Pacific
Railroad Company, which are common carriers engaged in interstate
commerce and which use such electricity to operate their stations,
depots, and roundhouses, facilities necessary to the operation of their
interstate transportation systems. The respondent supplies and sells
electricity to branches of the United States Post Office at Cedar Rapids
and elsewhere in Iowa and to other branches of the United States
Government for the operation of offices, buildings, and other facilities.
IOWA ELECTRIC LIGHT AND POWER COMPANY 1129
In Cedar Rapids and elsewhere in Iowa the respondent supplies and
sells electricity to Western, Union Telegraph Company and to Postal
Telegraph-Cable Corporation for use in connection 'with the trans-
mission of telegraphic communications; to radio station WNT, located
in Cedar Rapids, for use in connection with the transmission of radio
broadcasts ; and to Northwestern Bell Telephone Company for use in
connection with the transmission of telephonic communications. A
substantial amount of such radio broadcasts and telegraphic and tele-
phonic communications moves in interstate commerce. The respond-
ent also supplies and sells electricity and steam to a number of manu-
facturing concerns located in Cedar Rapids, each of which causes
substantial quantities of materials, commodities, and products which
it purchases or sells in connection with its operations at Cedar Rapids
to move it interstate commerce.
At the oral argument the respondent conceded the Board's juris-
diction in this case.
II. THE LABOR ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local 275; Interna-
tional Union of Operating Engineers ; International Brotherhood of
Electrical Workers, Local Union No. 931; and International Brother-
hood of Electrical Workers, are labor organizations affiliated with
the American Federation of Labor and admitting to membership
employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The alleged refusal to bargain collectively
1. History of labor organization among the respondent's employees
In August 1934 the respondent entered into an agreement with
Association of Power House Employees of Cedar Rapids, Iowa, an
organization of employees of the respondent employed in and about
its power plant in Cedar Rapids, herein called the Association, recog-
nizing the Association as the bargaining agent of its members and
fixing the wage rates and working conditions of employees in said
power plant. The agreement was renewed, or a new agreement made,
each year until October 1, 1940, when the last agreement expired.
In April 1935 the respondent entered into an agreement with
Meter, Steam and Transmission Association, an organization of em-
ployees of the respondent in its transmission department at Cedar
Rapids, the work of which includes street lighting and the trans-
mission and metering of steam and electricity. The original agree.
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, which was described as a "continuing contract," was in effect
at the time of the hearing. The organization was still in existence
and holding regular monthly meetings at the time of the hearing,
but it carried on little or no collective bargaining activities.
On June 25, 1937, the respondent entered into an agreement with
the I. B. E. W., through its Local Union No. 372, applicable to and
fixing the wages and hours for "all work done by or for" the re-
spondent in its Boone division by persons in certain stated occupa-
tional categories. The agreement provided :
(b) Should a majority of any classification of employees, em-
ployed in any department of the Company, who are not covered
by this Agreement or other Agreements between the Company
and the Brotherhood, desire the Brotherhood to represent them,
the representatives of the parties hereto shall meet on ten (10)
days' written notice from either party to the other or on a date
mutually agreed on for the purpose of negotiating an agreement
covering the hours and wage rates of such employees and on
failure to fully agree, the points of difference shall be settled by
arbitration in a manner as provided in this agreement. Should
there be a question as to a majority of such employees desiring
the Brotherhood to represent them, this question is to be settled
by the holding of an election of such employees under the super-
vision of an agency agreed upon by the parties hereto.
The I. B. E. W., through its Local Union No. 372, and the respondent
made three addenda to the agreement pursuant to said provision. The
first, effective as of October 1, 1937, applied to employees of the
respondent in its Perry division ; the second, effective as of December
1, 1937, applied to employees of the respondent in its Jefferson divi-
sion ; and the third, effective as of May 1, 1938, applied to employees
of the respondent in its Marshalltown division. The original agree-
ment affected laborers, lineman,° a groundman-truckdriver, and per-
sons doing work of stated classifications in the following departments :
power plant, gas plant, gas service, gas plant and service, and service
and meter. The addenda applied to employees doing similar classifi-
cations of work, with some exceptions, the most important of which
were as follows : the addendum for the Perry division did not provide
for employees engaged in the production or distribution of gas, that
for the Jefferson division did not provide for employees engaged in
the production of gas, and the addendum for the Marshalltown divi-
sion applied to the employees in the-bus department. The agreement
and addenda were in effect at the time of the hearing.
The division line superintendent , line foremen , and line apprentices were included.
IOWA ELECTRIC LIGHT AND POWER COMPANY 1131
On December 3, 1940, during negotiations between the respondent
and the Association looking to a renewal of their expired agreement,10
the respondent made its last proposal to the Association. The Asso-
ciation did not reply. The members of the Association held a meeting
about December 5 or 6 and decided, by a vote of, 20 to 19,11 to join an
organization affiliated with the American Federation of Labor, herein
called the A. F. of L. On December 8 the Association's executive
council conferred with Leo P. Beasley, international representative of
the Engineers' International and one Baker, also connected with the
Engineers' International, and discussed such matters as that organiza-
tion's dues and its jurisdiction over the power-plant employees. The
next day Beasley conferred with a group of 10 or 12 employees. At a
membership meeting of the Association on about December 19, a
majority of the 38 members present applied for membership in the
Engineers' International," and temporary local officers were elected.
By December 21, 48 of the Association's 55 members, all employed in
the respondent's power plant at Cedar Rapids, had applied for mem-
bership in the Engineers' International, and at that time Beasley sub-
mitted to the Engineers' International an application for a local
charter. The Engineers was accordingly chartered on January 2, 1941,
with jurisdiction over power-plant employees of the respondent, ex-
cluding those engaged in supervisory or clerical capacities.13 The
Association's treasury was divided among its members.
Meanwhile J. Harris Igou, international representative of the
I. B. E. W., had visited the Cedar Rapids plant and started an organ-
izational campaign. Four employees 14 applied for membership in the
I. B. E. W. during the last 3 days of December 1940, and nine 15 during
January 1941.16 All but one of said applicants were engaged as pro-
duction or maintenance employees in the respondent's Cedar Rapids
power plant." On December 14 Igou conferred with F. C. Chambers,
the respondent's vice president and general manager, and demanded
recognition as bargaining representative of all production and main-
tenance employees of the respondent, including those in the Cedar
Rapids power plant. He stated that a majority of all such employees
had designated his organization as their bargaining agent, and he
further claimed bargaining rights pursuant to the I. B. E. W.'s con-
10 The negotiations had commenced on September 24, 1940
11 The Association then had 55 members
12 Several employees had applied previously.
13 It is not clear whether or not the Engineers' jurisdiction included power-plant em-
ployees outside Cedar Rapids.
14 Ford , Korous, Shikoski, and Tubbs.
1' Voelkers, Schroeder, William Kosina, Dorton, Dostal, Lumir Kosina, Quass, Quinn,
and Ruse
11 On and after February 11, 1941, 29 others joined.
17 The exception , Ruse, was employed in the transmission department.
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tract with the respondent mentioned above. The respondent refused
Igou 's demand.
2. The respondent's conferences with the Engineers
On January 3, 1941•, Beasley, accompanied by Robert E. Kehne, Jr.,
temporary president of the Engineers, and Noble Smith, an employee,
called upon Chambers and, claiming that the Engineers represented a
majority of the employees in the power plant at Cedar Rapids,
requested Chambers to enter into negotiations for collective bargain-
ing. Chambers examined a list of members of the organization
submitted to him but told the committee that he would require
further proof of its claim. Accordingly, Beasley and Kehne, accom-
panied by Peter Dykhuizen, secretary of the Engineers, returned on
January 6 with 48 membership cards bearing signatures of employees
in the plant. The respondent's auditor and Beasley compared the
signatures on the cards with those on the respondent's pay roll and
found all the signatures authentic.18 Chambers admitted that the
cards indicated a majority for the Engineers,1° but added:
. . . we have a contract with the I. B. E. W., which they claim
covers the entire property, and . . . until there is some settle-
ment or some decision as to the appropriate and correct bar-
gaining unit for this property, I would prefer not to negotiate
a contract with any negotiation [sic], particularly . . . your
organization.
Chambers stated further :
As soon as this matter is decided, we can get this matter decided.
I will be willing to go ahead and negotiate a contract.
Chambers testified that Beasley said that he could obtain such a
decision within 3 or 4 days "from Washington," and he added:
. . . and I believe he told me it would be from the American
Federation of Labor, that they would decide that matter.
Chambers further testified :
I never had considered that we had refused to bargain, and I
had said very emphatically that when the appropriate unit had
been decided upon we would bargain, if they were the appro-
priate unit, we would bargain with them.
18 Tao men who could not write had signed with a cross, and two others had authorized
the filling out of their cards by another individual, but it was conceded that all signatures
were authorized
10 Seventy - seven persons were permanently employed in the Cedar Rapids power plant
at that time . including several engaged in supervisory capacities None of the supervisory
employees were among the d8 adherents of the Engineers
IOWA ELECTRIC LIGHT, AND POWER COMPANY 1133
Beasley did not deny Chambers' testimony, and he corroborated
much of it. He admitted that Chambers advised him that the
I. B. E. W. was contending for the right to represent employees
of the respondent throughout its entire system, including the
employees at the Cedar Rapids power plant, a contention of which
he himself had previously heard as "a matter of rumor," and he also
testified as follows :
Q. (By Mr. ELLIOTT.) You never did tell Mr. Chambers that
you were going to file a complaint with the National Labor
Relations Board charging the company with an unfair labor
practice, did you?
A. I told him it would be up to us to have the Board settle
matters.
Q. (By Mr. ELLIOTT.) Did you ever tell him that you were
going to file a complaint or charge with the National Labor
Relations Board that the company was guilty of an unfair labor
practice, and I will ask you to answer that yes or no, if you will,
please?
* * * * * * *
The WrrNESS. No, I didn't tell him I was going to file a charge.
Q. (By Mr. ELLiorr.) You did tell him you would have a
decision out of Washington deciding the controversy between
your organization and the I. B. E. W. within a few days, didn't
you?
A. That would be entirely up to the Board. I told him I
would try to get an answer from that source, if possible.
* * * * * * *
Q. (By Mr. ELLIOTT.) I will ask you if you didn't say to Mr.
Chambers that you would have a decision out of Washington
deciding the jurisdiction dispute between your organization and
the Electrical Workers from the headquarters of the A. F. of L. ?
A. I can't say. I can't remember of that.
Q. You wouldn't say you didn't, would you?
A. I wouldn't say I did or I wouldn't say I didn't. It is quite
possible that I said I would try to get an explanation of the
jurisdiction in regard to the matter. I might have said that : I
don't remember. That is nothing uncommon.
Q. You wouldn't be surprised if you did make such a statement
to Mr. Chambers?
A. That would be only a matter of conversation, nothing
unusual.
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Beasley further testified that he tried, without success, to procure
from the A. F. of L. information as to which organization had the
right to represent the employees.
Kehne testified that he, too, was present at the conference and that
in reply, to Chambers' statement that the respondent could not
bargain with the Engineers, Beasley stated that
. . . he would like to do things all in a businesslike manner and
he would like to get that thing straightened up before they went
ahead and negotiated.
We find that on January 6 Beasley stated to Chambers that he
would endeavor to secure from the A. F. of L. or the Board a
decision of the question concerning representation.
On about January 16 Beasley, Dykhuizen, and Kehne called on
Chambers and requested him to receive a committee from the Engi-
neers as representative of its members in the presentation of their
grievances. Chambers replied that employees with grievances could
see him individually. On another occasion Dykhuizen and Ernest
St. Germain, business agent of another local of the Engineers' Inter-
national located in Cedar Rapids, called on Chambers to request that
"the pressure [be] taken off the boys at the plant." 20 Chambers
pleaded ignorance of the alleged "pressure" and promised to remedy
the situation forthwith. The Engineers' representatives thereupon
asked Chambers if he would bargain with a committee of their organi-
zation, to which Chambers replied that, due to the existing dispute
between the two unions, he could not negotiate with the Engineers
at that time. The two men thereupon left.
On January 15, 1941, Local No. 931 was chartered by the I. B. E. W.
Local No. 931 thereupon wrote a letter to the respondent requesting
a conference to negotiate an addendum to the I. B. E. W.'s agreement
of June 25, 1937, covering employees in Cedar Rapids. At about that
time and subsequently Igou made other demands upon the respondent
for collective bargaining, based both upon alleged rights under the
I. B. E. W.'s contract of June 25, 1937, and upon a claim that the
I. B. E. W. had been chosen as collective bargaining representative
by a majority of the production and maintenance employees in the
respondent's entire organization.21 The respondent did not require
Igou to prove his organization's alleged majority as it had required
of Beasley, but it refused to negotiate with Igou's organization pend-
ing a determination of the appropriate bargaining unit.
20 Dykhuizen testified that this occurred about February 11 or 12 , 1941 Chambers testified
that it happened "along in the middle of January "
21 No claim was made that the I B E W had a majority of the employees in the Cedar
Rapids power plant.
IOWA ELECTRIC LIGHT AND POWER COMPANY 1135
3. Conclusions
The respondent's refusal to bargain with the Engineers was not
absolute. It refused at the same time to bargain with the I. B.
E. W. and it indicated a complete willingness to bargain with
whichever organization was found to be the proper bargaining agency.
When the Engineers undertook to have the question concerning rep-
resentation determined by the A. F. of L., or the Board, or both,
it relieved the respondent of any necessity it may have been under
to make its own decision as to the proper organization with which
to bargain .22
The Engineers at no time indicated a change of mind to the
respondent.23 At their conference with Chambers on about January
16 Beasley, Dykhuizen, and Kehne did not demand recognition of
the Engineers as exclusive bargaining representative, but only to
present its own members' grievances. A request for exclusive rec-
ognition vas, it is true, made by Dykhuizen and St. Germain at their
interview with Chambers. However, they indicated that the pri-
mary purpose of the interview was to put a stop to alleged "pres-
sure" upon the employees. In these circumstances, the request of
Dykhuizen and St. Germain for a bargaining conference could not
have indicated to the respondent that the Engineers was withdrawing
from the position previously taken by Beasley, whose authority as
international representative was superior to theirs.24
^ In view of the iespondent ' s long bargaining relationship with an unaffiliated organiza-
tion on the basis of the smaller unit , and of its expiessed disapproval on Decembei 23,
1940 , of the Association ' s action in breaking off bargaining relations , discussed in Sub-
section B , below , its subsequent claim that a larger unit is appropiiate should be closely
scrutinized We think , however, that this change of position by the respondent is fully
explained by the introduction of a new factor into the situation after the termination
of its bargaining relations with the Association , namely , the I B E W 's organizing cam-
paign among the employees at the Cedar Rapids plant and its demand for iecognition as
bargaining representative of all production and maintenance employees in the entire
system . The organization and character of the respondent 's operations , described in
Section I above, and its contract of June 25 , 1937 , with the I B E W are some evidence
of the appropriateness of the larger unit The Engineers by its actions above referred to
recognized the reasonableness of the respondent 's doubts as to the appiopriateness of the
Cedar Rapids power plant as a bargaining unit
23 Chambers testified that in about March 1941 he \ as first informed of the filing of
charges that the respondent had refused to bargain with the Engineers , and further testi-
fied that lie was never notified that Beasley abandoned the idea of obtaining a determination
of the question concerning representation Igou testified that in about the middle of
January 1941 he informed Chambers that charges of unfair labor practices bad been filed
against the respondent , although during one stage of his examination he testified that
Chambers mentioned a complaint to him on December 14 or 15. We find that at the time of
his various conferences , mentioned above , with representatives of the Engineers , Chambers
isas not informed that charges had been filed alleging that the respondent refused to
bargain with the Engineers
2f Under the constitution of the Engineers ' International , international representatives
are appointed by the president of that organization . The constitution also provides that
said president has the power " to direct and supervise all Local Unions , Local Officers and
any other subdivision of the International Union and members ," and that all agreements
between Local Unions and employers are ineffective without said president 's approval.
1136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In view of the foregoing, we shall dismiss the allegations of the
complaint that the respondent refused to bargain collectively within
the meaning of the Act.
B. Interference, restraint, and coercion
The respondent, having received information that the Association
and its members were negotiating for affiliation with an outside labor
organization and that therefore it would receive no reply from the
Association to its final proposal referred to above, on December 23,
1940, summoned the employees of the Cedar Rapids power plant to
a meeting at the plant. The meeting was addressed by Chambers
and by Herbeck, the respondent's chief engineer and power-plant
superintendent at Cedar Rapids.
Chambers testified that Herbeck stated at the meeting that he did
not think that the employees had given him or the respondent "a
fair deal," since the Association's agreement required the arbitration
of any matters that could not be agreed upon by the representatives
of the employees and of the respondent. He also testified :
Mr. Herbeck said that he was very much surprised and dis-
appointed when he heard that they had gone outside to find
another bargaining agent, without first telling him or the com-
pany's representatives that they believed that they had reached
a point where it was useless to spend any more time trying to
get what they believed they should have, and consequently they
were going to obtain or try to obtain what they wanted through
other agencies.
The Trial Examiner found that the foregoing account was substan-
tially in agreement with the testimony of the Board's witnesses and
accepted it as correct. Versions of Herbeck's opening remarks as
testified to by witnesses for the Board were : that he inquired "why
the men saw fit to join the Union at that time" and accused the em-
ployees of having "run out on" the Association's agreement; that he
said that the employees had failed to exhaust all means of bargaining
with the respondent through the Association and that they had been
unfair in not resorting to arbitration pursuant to the expired Asso-
ciation agreement; that he stated that ". . . he was quite disap-
pointed, because the men had joined another organization without
contacting the company in regard to joining this organization"; "He
said we violate the law, that we didn't go and see the company first
before we went and tried to bargain with the Federation of Labor,"
and that he said that the employees owed the respondent the courtesy
of a reply to its last proposal before they did anything else; that he
IOWA ELECTRIC LIGHT AND POWER COMPANY 1137
accused the employees of having failed to fulfil their part of the
Association's contract when they did not return to negotiate; and that
he said that he felt "that the boys let him down," and "that he didn't
see why that they did want to make a change ..."
Several employees testified that, in addition to the foregoing Her-
beck stated that the vote in the Association on joining an A. F. of L.
organization was unfairly conducted, that unfair methods and the
"pressure" of two or three men had brought about the change of
allegiance; that but for such pressure, the employees would have
chosen to remain in the Association ; and that he inquired whether
the men would "jump" to another organization if the Engineers failed
to obtain what they desired, or ". . . if they run across something
in this Union that just didn't agree to them . . .," of if they did
not obtain what they wanted in the Engineers. The Trial Examiner
credited the testimony of these witnesses as to the additional state-
ments. The uncontradicted evidence shows that Kehne, president
of the Engineers, replied to Herbeck's criticisms by stating that the
negotiations with the new organization had gone too far for the
employees to withdraw. Herbeck did not testify with respect to the
meeting.
Chambers testified that he told the employees at the meeting that
the only disappointment Herbeck had indicated to Chambers was
"the fact that he felt that the employees . . . should have notified
the company that they had come to the conclusion they couldn't
reach an agreement, considered the contract expired and didn't want
further negotiations, rather than to carry on negotiations with two
different bargaining agencies at the same time"; and that he himself
felt as Herbeck did. His testimony continued :
I finally said to them, "Now, apparently you are set on some
other means of dealing, you are going to join up with some
organization. Our relations in the past, I believe, have been
very harmonious, there has been very little trouble, very few
grievances, and I can see no reason in the future why they
shouldn't remain the same as they had in the past," and that I
felt quite sure that they would.
Witnesses for the Board corroborated Chambers' statement that he
thought that the employees' relations with the, respondent would. con-
tinue harmonious, and the testimony also shows that Chambers
stated that the employees were free to join the Engineers if they so
desired, and would not be interfered with by the respondent.25 How-
ever several witnesses testified that Chambers also expressed dis-
R° Chambers denied having made such a statement but we think he was mistaken
438861-42-vol. 38--73
1138 DECISIONS OF NATIONAL LABOR. RELATIONS BOARD
appointment at the fact that the employees, without getting in touch
with the respondent, were joining another labor organization.26
The reasonable interpretation of Herbeck's statement, even as testi-
fied to by Chambers, was that the respondent was criticizing the
employees for joining the Engineers. Since it was obvious that the
interrupted bargaining could be resumed with the new bargaining
agency, it is plain that what the respondent was expressing objection
to was the injection into the situation of a new labor organization,
with outside affiliations and support. Kehne's reply to Herbeck and
the testimony of the other employees, above referred to, leave little
room for doubt that both Herbeck's and Chambers' remarks were so
understood by those present. The respondent thus indicated to the
employees that it considered those who adhered to the Engineers
and, especially, those most active in its behalf, guilty of improper and
unwise conduct, of which the respondent disapproved. While the
respondent's promise that employees might join the Engineers free
from interference by the respondent, its statement that it expected
its relations with its employees to continue harmonious, and the letter
of February 10, 1941, referred to below, which it posted on its bulle-
tin board, indicate a disposition to abide by the Act, the respondent's
failure to do so is plain on the record. The calling of the meeting
and the statements of Chambers and Herbeck had the, effect of
advising and warning the employees not to become or remain mem-
bers of the Engineers or to be active on its behalf, and we so find.
We further find that the letter of February 10, 1941, posted by the
respondent did not dissipate the effect of the respondent's said
actions.
Early in January Herbeck said to Dykhuizen while the latter was
working at thq plant :
Bill, I don't understand why the boys are dissatisfied with the
treatment they are getting here . . . I have done everything I
could for them, and I don't understand why they are dissatisfied
and want to join another Union . . . We had a good thing in
the old Union.
Dykhuizen testified, further, as to this conversation as follows :
... He felt that we ought to have kept it.
Then he stated that we had showed him by our actions that we
were dissatisfied with the treatment that we were receiving, and
20 The testimony was as follows
. . . he said . . that he was disappointed that the men didn't notify him that they
were going to join a labor organization, . .
He said he was sorry we hadn't notified him of the fact that our old organization
had been dissolved and that we ,anted to join the bargaining unit of . . . another
Union
He said that he, like Mr. Herbeck, was a wee bit disappointed that we had joined the
other organization without contacting them again, . . .
IOWA ELECTRIC LIGHT AND POWER COMPANY 1139
that in return his actions towards us was going to be the same,
that he was dissatisfied with the treatment we had given him,
and he also told me that from now on we could expect no more
favors in the plant.
The foregoing testimony was undenied. Thereafter, as found
above,27 Dykhuizen and St. Germain requested that "the pressure
[be] taken off the boys at the plant ." Chambers called Herbeck and
informed him that the respondent
... didn't want any of the company , no one connected' with
the company , that is an official capacity , to take any part in the
solicitation of membership in any organization , and it was part
of his business to see, as far as he could , he couldn 't watch
them continuously , of course , to see that that was carried out; .. .
On about February 10, 1941, the respondent posted on its bulletin
board the following letter addressed to its division heads :
CEDAR RAPIDS, IOWA, February 10, 1941.
DISTRICT MANAGER,
DEPARTMENT HEADS.
GENTLEMEN : During the past year or eighteen months there
has been considerable activity on the part of representatives of
labor organizations in organizing various industries in the com-
munities which we serve. The Iowa Electric Light and Power
employees have been effected [sic] by this movement.
During this period there have been many rumors, some to the
effect the Company was opposed to its employees joining an
organization, and others that if the employees took any active
part or became members of an organization, their services would
be dispensed with.
The law is very plain in this matter. The executives of the
Company have always taken the stand they will not try to in-
fluence or prevent our employees joining an organization.
We want it clearly understood that, if any of our employees
desire to attend any meeting which an organization may hold
for the purpose of securing memberships, they are at perfect
liberty to do so, and that the attendance at these meetings or
subsequent joining the organization will in no way jeopardize
their position with the Company.
The Company's sole interest in the matter is to have the em-
ployees, if they decide to join an organization, give the matter
27 See subsection A, 2.
1140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
very careful consideration and select that organization which
will be the most beneficial to them in the long run.
Yours truly,
(Signed ) SUTHERLAND Dows,
Vice President.
Prior to February 11, 1941 , 16 employees at Cedar Rapids had
applied for membership in the I. B. E. W . On February 11 Ed-
ward Jack '28 assistant chief engineer at the Cedar Rapids power
plant, submitted his application for membership along with . 3 other
employees 29 Jack immediately became the I. B. E. W .'s most active
organizer , soliciting members at employees ' homes, at the plant while
at work, and elsewhere . Up to the time of the hearing 25 additional
employees at Cedar Rapids joined the organization , substantially all
as the result of Jack's activities . 30 The rivalry between the Engineers
and Local No. 931 caused bad feeling to develop among the em-
ployees in the Cedar Rapids power plant. In the middle of March
1941 Jack suggested to the president and the secretary of Local No.
931 that a petition be circulated among the power plant employees
which, allegedly , would have the effect of settling the differences
among the men. Thereafter , at Jack's request, an attorney drafted
a petition . The petition requested the Board to "appoint " 4 named
members of Local No. 931 as bargaining representatives of the em-
ployees. , Sixty-five of the approximately 77 employees at the Cedar
Rapids power plant signed the petition , all at Jack's solicitation.
Considerable testimony was adduced at the hearing which tended
to show that , in the course of his activities on behalf of the I . B. E. W.,
Jack indicated that the I. B. E. W .'s success would please the respond-
ent. Dykhuizen , secretary of the Engineers , testified as follows with
respect to a conversation with Jack in March :
. .. he told me that there was no doubt about the plant going
I. B. E. W., that it was almost a sure thing , and he told me it
was the Company , the Union the Company wanted, and that it
was certain to go I. B. E. W . because of that fact, and he asked me
if I didn't care to join.
Fred Sipe , an employee , testified that on one occasion Jack came to
his house and stated that ". . . the company would like to get this
thing cleared up, and he would like to have me sign the petition and
the card for the I . B. E. W." He further testified that when he re-
28 Jack was at times referred to as "Red Jack."
29 Cramer, Poole, and Williamson
zo Of the 25 employees who joined after February 11, 1 (Nelson) was solicited by Charles
Schroeder, 1 received a card from Korous but returned it to Jack, and 19 were solicited
directly by Jack The record does not disclose who solicited the remaining 4 employees,
namely, Theisen, Fox, Dlrstik, and Sturm The last 3 did not testify at the bearing.
IOWA ELECTRIC LIGHT AND POWER COMPANY 1141
fused, Jack said: "Well, just what do you think the company will think
when they find out that your card isn't there?" Jack denied the above
testimony of Dykhuizen and Sipe, although he admitted that Sipe
was of the "opinion" that he was in danger of discharge if he refused
to sign the petition. Kehne, Dykhuizen, and Sipe testified that at a
meeting called by Jack for the purpose of inducing non-members to
join the I. B. E. W. and to sign the petition, an employee stated that
he did not wish to sign the petition but felt that he was jeopardizing
his job if he refused. They testified further that Jack, who was
present, did not reply. This was undenied. Leo Lubbers testified
that he joined the I. B. E. W. and signed the petition after Jack had
on several occasions requested him to do so. He testified as follows
as to his conversation with Jack on one of the occasions :
So I asked him what would be wrong with me not belonging to
either one of them until this got settled. And he said "Now
presuming, now, just presuming," he said, "that you did that.
Presume, say, just presuming that Chuck Slauson [foreman of
the boiler plant] could come up to you"-First he asked me how
much I made a day. And then he said, "Presuming," he said,
"that Chuck Slauson could come up to you one or two days a
week and tell you there wasn't any work for you. How much
would that mean to you ?" And I told him. . Then after that he
mentioned me signing the card again.
Jack's testimony indicates that both Lubbers and his wife were con-
siderably disturbed by Jack's repeated requests that Lubbers sign
an I. B. E. W. membership application. Jack testified :
... then his wife came back in and she says, "Leo, what are you
going to do?" He says, "Well, I might as well do it," and he
went and got his.pen off a desk there and the card was there,
and he signed it and gave it to me.
He also testified :
His wife spoke up and said, "We don't want to go through any
such thing as Leo went through before he worked at the power
plant."
Jack admitted that the possibility of losing employment was dis-
cussed in a conversation with Lubbers. He denied, however, making
the statement ascribed to him by Lubbers in this connection and
claimed that only Lubbers mentioned possible loss of employment and,
further, that that was with reference to other companies. He testified
that Lubbers brought the matter up "out of a clear sky." We credit
the testimony of Dykhuizen, Sipe, Kehne, and Lubbers referred to in
this paragraph and find, as did the Trial Examiner, that each of the
above incidents occurred.
1142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chambers admitted that he had notice that Jack was an active mem-
ber of the I. B. E. W. and no evidence was introduced that the re-
spondent took any steps to prevent his activities. The respondent
disclaims responsibility for Jack's activities, however, on the ground
that his authority as assistant chief engineer was limited, and on the
further ground that, since he was eligible for membership in the
I. B. E. W., the respondent could not, under the Act, interfere with
his activities on behalf of that organization. The respondent also
points out that the Engineers allegedly sought Jack's membership.
The record shows the following concerning Jack's position with
the respondent: Herbeck, the chief engineer, has supervision over the
operation and maintenance of the power plant at Cedar Rapids, with
sole authority to hire and discharge employees. He has four assist-
ants, namely, Charles Slauson, foreman of the boiler plant, Emmet
Keough, foreman of electrical work, William Starkweather, foreman
of the water-treating department, and Jack, foreman of the engine
room. These four assistants have equal authority in their respective
departments, and each takes charge of his own department during
Herbeck's absence. The following classifications of employees work
in the power plant under one or another of said assistants : engineers,
assistant chemists, electricians, machinists, welders, water-softener
operators, crane operators, metermen, storekeepers, repairmen, pipe
coverers, oilers, firemen, ash handlers, janitors, laborers, and helpers
of some of the foregoing. Substantially all orders to employees are
transmitted through the four assistants. Jack "takes care of" all
operations and all pipe work in the power plant. He has charge of
the routine operation and maintenance of the plant and instructs the
employees what to do with respect to Herbeck's orders. He gives
orders entailing changes from normal operations or routine and noti-
fies employees of their transfer to different jobs. He performs manual
work, such as welding, pipe fitting, pulverizing, and repair work.
He has no power to hire, discharge, promote, or demote employees, but
is consulted with respect to demotions, promotions, and subordinates'
work, and he makes recommendations with, respect thereto.
In view of Jack's power to make reports and recommendations con-
cerning his subordinates, opposition to his wishes in the matter of
self-organization plainly entailed the possibility of retaliatory action
by the respondent, as the employees well understood. Lubbers, who
was called as a witness by the intervenors, testified :
I signed the card because Red Jack presented it to me. If Charles
Korous [a non-supervisory employee] or anybody else had pre-
sented it to me I would not have signed it.
T
IOWA ELECTRIC LIGHT AND POWER C'O'MPANY 1143
Q. Did you feel you had to sign it if Red presented it to you?
A. I figured Red had a lot of strength, and if I didn't sign it
Q. You figured that Red could pull some strings for you more
than anybody else?
A. I figured he could pull more strings against me.
Vernon Hendryx, vice president of the Engineers, testified :
I felt that way because Mr. Jack to me is a foreman there, and
the fact that he was interested enough to contact the men at home,
including myself, I felt that I was jeopardizing my job if I did
not join the I. B. E. W.
In any event Jack, as the immediate source of substantially all orders
received by the employees in his department, including orders involv-
ing departure from normal operations and routine, necessarily
appeared to the employees to have considerable authority. The re-
spondent made no attempt to prove that the employees were informed
of limitations upon his authority. Indeed, the record shows that on
one occasion, when Kehne refused to obey Jack's oral order to depart
from a certain written instruction previously issued by Herbeck,
Kehne was brought to Herbeck's office and instructed to follow Jack's
order. We are convinced, and we find, that the employees had just
cause to believe that Jack was acting for and on behalf of the respond-
ent. It is plain that Jack's activities deprived the employees of "the
complete and unhampered freedom of choice which the Act contem-
plates." 31 We find that the respondent is responsible for his
activities.s2
We find that by the statements and activities of Herbeck, Chambers,
and Jack above referred to, the respondent has interfered with, re-
strained, and coerced itg employees in the exercise of the rights
guaranteed in Section 7 of the Act.
"International Association of Machinists , etc v. National Labor Relations Board, 311
U. S 72 , aff'g 110 P. ( 2d) 29 ( App. D C .), enf'g Matter of The Serrick Corp. and Interna-
tional Union, United Automobile Workers of America , Local No 1,59, 8 N. L R B 621.
39 Jack 's eligibility for membership in either the I B E. W or the Engineers is imma-
terial to our finding above Matter of Tennessee Copper Caip and A F of L Federal
Union No 21 ,1611, 9 N. L R B. 117, 119; Matter of Swift & Company and Amalgamated
ilfeat Cutters and Butcher Workmen of North America , Local 172, etc, 30 N L R B
550, p 14 . In the former case , we said
. . . the Act guarantees to all employees the right to choose representatives free from
interference by employers. Membership of supervisory employes in a labor organiza-
tion involved in a controversy over representation cannot confer on such employees a
privilege to interfere, nor can the immunity guaranteed employees by the Act be
impaired or diminished by the membership rules of any labor organization. The em-
ployees ' right to a choice free from employer interference is absolute . Supervisory
employees , although eligible for membership in competing labor organizations, are
forbidden by the Act , in their capacity as the employer 's agents , to interfere in the
selection of employee bargaining representatives , yet there need be no conflict by reason
of their dual status . It is perfectly consistent for supervisory employees to belong to
labor organizations and yet be prohibited from conduct permitted nonsupervisory
employees.
1144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III7 B, above, occurring in connection with the operations of the
respondent described in Section I above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices, we shall order it to cease and desist therefrom and to
take certain affirmative action which we find will effectuate the policies
of the Act.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Union of Operating Engineers; International
Union of Operating Engineers, Local 275; International Brotherhood
of Electrical Workers; and International Brotherhood of Electrical
Workers, Local Union No. 931, are labor organizations within the
meaning of Section 2 (5) of the Act.
2. 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.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
4. The respondent has not engaged in unfair labor practices within
the meaning of Section 8 (5) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Iowa Electric Light and Power Company, Cedar Rapids,
Iowa, and its officers, agents, successors, and assigns, shall:
1. Cease and desist from interfering with, restraining, or coercing
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 concerted
IOWA ELECTRIC LIGHT AN-D POWER COMPANY 1145
activities for the purposes of collective bargaining or other mutual
aid or protection , as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post immediately in conspicous places at its Cedar Rapids,
Iowa, plant , and maintain for a period of at least sixty ( 60) consec-
utive days from the date of the posting , notices to its employees stating
that it will not engage in the conduct from which it is ordered to cease
and desist in paragraph 1 of this Order;
(b) Notify the Regional Director for the Eighteenth 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, insofar t s it alleges
that the respondent, by refusing to bargain collectively with Inter-
national Union of Operating Engineers , Local 275, affiliated with
the A. F. of L., has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) and (5) of the Act, be, and it
hereby is , dismissed.