Kansas City Power & Light Company

National Labor Relations Board - Board Decisions

May 31, 1939

12 N.L.R.B. 1414 (N.L.R.B. 1939)

In the Matter of KANSAS CITY P OWER & LIGHT COMPANY' and INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION
B-412
Case No. C-451.-Decided May 31, 1939
Electric Utility Industry-Interference, Restraint, and Coercion: espionage:
employment of labor spies, surveillance of union meetings, reporting activities
of various unions and union preferences of individual employees-Company-
Dominated Unions: employee-representation plan: domination of and inter-
ference with formation and administration ; financial and other support ; em-
ployees association : domination of and interference with formation and admin-
istration ; support ; employee-representation plan, continuation of as: notifying
only some Plan employee-representatives of Plan's abandonment, such employees
active in transforming Plan into and serving as officers of in transitional period,
similar structure of two labor organizations, recognition of continuity in con-
stitution of ; soliciting by organizers of, on company time and property and in
presence of foremen; allowing employees to leave work and to congregate for
solicitation for; hasty entering into closed-shop contract with, upon basis of
oral claims : attempting to induce stipulation of no company-domination of
by another unaffiliated labor organization, seeking bargaining recognition ;
letter to employees stating no company-domination of; disestablished, as agency
for collective bargaining-Closed-Shop Contract: with company-dominated union,
void-Check-Off: for company-dominated union, employer ordered to reimburse
employees for-Discrimvnat ion: discharges for union membership and activity,
and transfer of one employee to less favorable position ; charges of sustained
as to 11, dismissed as to 7 employees-Employee Status: request for time
slip, upon being advised of discharge, found by Board to be discriminatory, not
considered as voluntary quitting-Reinstatement Ordered: one employee dis-
criminatorily transferred to less favorable position, to his former position;
two employees discriminatorily discharged, to their former or substantially
equivalent positions ; eight employees discriminatorily discharged, to their
former or substantially equivalent positions, or positions for which they may
be qualified; displacement of employees hired after their discharges and em-
ployees discriminatorily retained or given other positions in preference to those
discharged: if not enough work available, employees to be placed upon pref-
erential list to be offered employment or reinstatement as it becomes available-
Back Pay: awarded, to 10 employees discriminatorily discharged, from date of
discrimination to date of offer of reinstatement or placement upon preferential
list, in accordance with reinstatement order, net earnings to be deducted, monies
received by employees for work performed upon Federal, State, county, munic-
ipal, or other work-relief projects to be deducted and paid over to agency which
supplied funds for said projects.
'Incorrectly designated in the complaint as Kansas City Power and Light Company
12 N. L. R. B., No. 137.
1414
KANSAS CITY POWER & LIGHT COMPANY 1415
Mr. Paul F. Broderick, for the Board.
Mr. Thad B. Landon, Mr. Ludwick Graves, and Mr. Irvin Fame, of
Kansas City, Mo., for the respondent. Johnson, Lucas, Landon,
Graves c Fane, of Kansas City, Mo., of counsel.
Mr. Cli f Langsdale, and Mr. Gibson Langsdale, of Kansas City,
Mo., for the Brotherhood.
Mr. Ruby D. Garrett, and Mr. Fred Ruark, of Kansas City, Mo.,
for the Association.
Mr. Harry A. Sellery, Jr., of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF PhD CASE
Upon charges and amended charges duly filed by International
Brotherhood of Electrical Workers, Local Union B-412, herein called
the Brotherhood, the National Labor Relations Board, herein called
the Board, by Elwyn J. Eagen, Regional Director for the Seventeenth
Region (Kansas City, Missouri), issued its complaint, dated De-
cember 15, 1937, against Kansas City Power & Light Company,
Kansas City, Missouri, herein called the respondent, alleging that the
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8 (1), (2),
and (3) 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, were duly served upon the re-
spondent, the Brotherhood, and Association of Employees of the
Kansas City Power & Light Company, herein called the Association.
In respect of the unfair labor practices, the complaint, as amended
during the course of the hearing, alleged in substance : (1) That the
respondent disseminated, circulated, sponsored, and publicized, or
caused to be disseminated, circulated, sponsored, and publicized, state-
ments, the purpose or effect of which was to discredit and to dis-
courage the exercise of the rights guaranteed to its employees in
Section 7 of the Act; that the respondent was a member of and
participated in an organization, the purpose or effect of which was,
in part, to disseminate, sponsor, circulate, and publicize statements
designed to discredit and discourage the leadership and principles of
labor organizations; and that the respondent maintained surveillance
over its employees in the exercise of their rights to organize; (2)
that the respondent fostered, encouraged, sponsored, dominated,
interfered with, and contributed support to a labor organization
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
known as Employes Representation Plan, herein called the Plan, and
its successor, the Association; and (3) that the respondent discharged,
laid off, or transferred to less favorable positions 18 named employees
for joining and assisting the Brotherhood.
On December 22, 1937, the respondent duly filed an answer which,
as amended during the course of the hearing, denied most of the
allegations of the complaint. It admitted, however, that the re-
spondent had contributed financial support to the Plan, and alleged
affirmatively that when the Supreme Court of the United States up-
held the constitutionality of the Act,2 the Plan was abandoned, stat-
ing that in the organization and operation of the Plan there was no
intention on the part of the respondent to dominate and interfere with
organized labor. The answer concluded with a prayer to dismiss the
complaint.
On or about January 3, 1938, the Association filed a motion to inter-
vene, accompanied by an intervening petition, with the Regional Di-
rector. In its petition the Association alleged that it is a voluntary
and unincorporated association with a substantial majority of the
respondent's non-supervisory employees as members, and that on
September 23, 1937, the Association and the respondent entered into
a contract covering, among other matters, wages, hours, and working
conditions. The petition denied that the respondent had dominated
or interfered with the formation and administration of the Associa-
tion or contributed support to it, or that it is the successor to the Plan.
The petition further alleged that a question affecting commerce had
arisen concerning the representation of employees of the respondent,
and requested an investigation and certification of representatives
pursuant to Section 9 (c) of the Act.
On January 5, 1938, the Regional Director, acting pursuant to
Article II, Section 19, of National Labor Relations Board Rules and
Regulations-Series 1, as amended, granted the Association's motion
to intervene in the proceeding in so far as its interests might appear,
and ordered that no further action be taken at that time regarding
the Association's petition for investigation and certification of repre-
sentatives. This ruling is hereby affirmed.
Pursuant to the notice, a hearing was held in Kansas City, Missouri,
from January 6 through 28, 1938, before Harlow Hurley, the Trial
Examiner duly designated by the Board. The respondent, the Broth-
erhood, and the Association were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing upon the
issues was afforded all parties.
2 National Labor Relations Board v. Jones d Laughlin Steel Corp ., 301 U S. 1 (April 12,
1937).
KANSAS CITY POWER & LIGHT COMPANY 1417
At the close of the Board's case, the respondent made several mo-
tions to dismiss the complaint for insufficient proof. The Trial Exam-
iner denied these motions. At the close of the hearing, the respondent
renewed its motions to dismiss the complaint for insufficient proof,
and on the further ground that the complaint is based upon charges
which are not signed by any duly authorized person. The Trial Ex-
aminer denied these motions. Further evidence was introduced in
regard to the authorization of W. B. Petty, international representa-
tive of the Brotherhood, to file the charges and amended charges on
behalf of the Brotherhood. The Trial Examiner denied motions by
the respondent and the Association to strike such evidence and the
respondent's motion to dismiss the complaint on the ground that the
complaint is based upon charges which are not signed by any duly
authorized person.
During the course of the hearing the Trial Examiner made several
rulings on other motions and on objections to the introduction of
evidence. The Board has reviewed all the rulings of the Trial Exam-
iner and finds that no prejudicial errors were committed. The rulings
are hereby affirmed.
On February 28, 1938, the Board, acting pursuant to Article 11,
Section 37, of the Rules and Regulations, ordered the proceeding to
be transferred to and continued before it. On September 6, 1938,
the Board, acting pursuant to Article IT, Section 38 (d), of the Rules
and Regulations, ordered that Proposed Findings of Fact, Proposed
Conclusions of Law, and Proposed Order herein be issued, granted
the parties the right to file exceptions, to request oral argument before
the Board, and to request permission to file a brief with the Board.
On December 3, 1938, the Board issued Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order. Thereafter the
respondent, the Brotherhood, and the Association filed exceptions to
the Proposed Findings of Fact, Proposed Conclusions of Law, and
Proposed Order, and requested permission to file a brief. The re-
spondent and the Association also requested permission to argue
orally before the Board. On December 15, 1938, all parties were
granted permission to file briefs, and thereafter all parties filed
briefs. Pursuant to notices served upon the parties, a hearing for
the purpose of oral argument was held before the Board on March 7,
1939, at which all parties were represented by counsel. The Board
has considered the briefs and the exceptions to the Proposed Find-
ings of Fact, Proposed Conclusions of Law, and Proposed Order, and
finds the exceptions, except such as are consistent with the Decision
and Order herein, without merit.
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Kansas City Power & Light Company is a Missouri corporation
and has its principal office and place of business in Kansas City,
Missouri. It has suboffices in Brunswick, Carrollton, Glasgow, North
Kansas City, and Sweet Springs, Missouri, and in Elkhart, Ottawa,
and Overland Park, Kansas.
The respondent is principally engaged in the production, transmis-
sion, and distribution, of electrical current to domestic, commercial,
and industrial customers within an area of 2,580 square miles in
Missouri and 1,225 square miles in Kansas. It is also engaged in the
generation and distribution of steam heat in Kansas City, Missouri ;
the purification and sale of water in Brunswick and Carrollton,
Missouri, and in Elkhart, La Cynge, and Lyndon, Kansas; the sale
of ice in Carollton, Missouri; and the sale at retail of electrical ap-
pliances in all the communities in which it operates.
It operates two electric-generating plants, the Northeast and the
Grand Avenue plants, in Kansas City, Missouri, and two stand-by
plants, one at Carrollton, Missouri, and the other at Elkhart,
Kansas. In 1936 the respondent generated and purchased 698,156,630
kilowatt-hours 3 of electricity, of which 695,584,363 kilowatt-hours
were generated and purchased in Missouri. During 1936 the respond-
ent sold 591,599,823 kilowatt-hours 3 of electricity in Missouri and
36,758,147 kilowatt-hours in Kansas. During 1936 it purchased $810,-
000 worth of lamps, bulbs, water heaters, refrigerators, and other ap-
pliances for sale at retail. Substantially all these articles were manu-
factured outside Missouri. The respondent also purchased 593,358
tons of coal from sources in Missouri, Kansas, and Oklahoma, and
natural gas coming from Texas.
In 1936, the respondent's total earnings amounted to $14,808,614.25,
of which $13,194,878 was received from sales in Missouri and
$911,459.66 from sales in Kansas. It had in its employ about 1,700
regular employees as of August 31, 1937. The respondent admits
that it is engaged in interstate commerce.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers, Local Union
B-412, is a labor organization, affiliated with the American Federa-
S This figure appears in Board Exhibit No. 44 , a stipulation between the Board and the
respondent , and differs from the corresponding figure in the Decision in Matter of Kansas
City Power & Light Company and Local Union B-112, International Brotherhood of Elec-
trical Workers, Case No R-298, decided this day. The parties to that proceeding are the
same as those-in the instant case
KANSAS CITY POWER & LIGHT COMPANY 1419
tion of Labor, herein called the A. F. of L. It admits to membership
employees in the respondent's production department, except certain
supervisory employees.
Association of Employees of the Kansas City Power & Light Com-
pany, an unincorporated association, is an unaffiliated labor organi-
zation, admitting to membership all non-supervisory employees of
the respondent.
M. THE UNFAIR LABOR PRACTICES
A. Background: The respondent's attitude toward organized labor;
Kansas City Citizens' Protective Council, Inc., and its activities
In 1934 an organization known as Kansas City Citizens' Protective
Council, herein called the Council, was incorporated under the laws
of Missouri. Its Articles of Agreement state that, its purposes are,
inter alia:
1. To collect, gather, classify and disseminate information and
data concerning labor conditions and the relations between em-
ployers and employees. 2. To assist in the preservation of indus-
trial and business peace through education and all other property
(sic) and lawful means. 3. To combat communism and other
doctrines subversive of the Constitution of the United States and
of the State of Missouri, particularly in the relationships between
employers and employees, and in this connection to assist in the
prevention of acts of destruction, violence and vandalism through
all proper and lawful means and channels.
Joseph F. Porter, Sr., president of the respondent, is one of the six
incorporators of the Council. Porter and Chester T. Smith and
Alec E. Bettis, vice presidents of the respondent, are members of the
executive committee of the Council. The respondent has paid the
dues of these three individuals to the Council, contributing to that
organization the sum of $2,600. The respondent paid $2,100 of this
amount after the effective date of the Act.
The Council advertises in the Kansas City newspapers and dis-
tributes bulletins among its members. On May 14, 1937, a full-page
advertisement by the Council appeared in a Kansas City daily news-
paper. Under the caption, "Shall the Nation's Most American City
Become a Hotbed of Foreign RADICALISM?" the body of the
advertisement denounced organized labor and its leaders and used
words such as labor organizations, racketeers, foreigners, radicals,
communists, lawlessness, poverty, and unemployment, in a manner
calculated to give the impression that they were synonymous. Ref-
erence was made to "professional agitators," "foreign molestation," "a
declaration of war from New York" against a Kansas City garment-
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
manufacturing concern and its employees, labor organization "under
racketeer rule," "submission to racketeering of . . . pay envelopes,"
and "assaulting of our women, the destruction and sabotage of mer-
chandise, the taking of tribute from our town to New York." It
declared that "This lawless invasion of our city must cease-and
cease at once . . . We do not want poverty, unemployment, and a
break-down of industrial stability. We do not want ogtside radicals
to come here and, through violence, lay waste to our city." It an-
nounced that the Council was formed, among other purposes, "to keep
out foreign agitators, disturbers and to prevent industrial ruin," and
"to keep labor racketeers and communists out of Kansas City, its
industrial business affairs, and the ranks of labor." The advertise-
ment also contained reprints of newspaper accounts of labor activi-
ties and copies of notices of meetings of various labor organizations.
Porter testified that he did not see this advertisement, but that if
it had been presented to him, he would have approved it, stating that it
represented "law and order" and that he would "stand for anything
that is good for the community."
On June 19, 1937, another full-page advertisement by the Council
appeared in a Kansas City daily newspaper. Under the caption, "To
the Working People of Kansas City. WE ARE FIGHTING TO
MAINTAIN YOUR RIGHT TO WORK !" the advertisement stated :
"You do not have to pay any dues unless you wish to do so !
... Roving caravans of men, moving from place to place, are
by threats, coercion and physical violence forcing thousands of
wage earners to quit work ! ... The Right to Work Must and
Shall Be Upheld ! Order Must and Shall Be Maintained ! In-
timidation and Violence Must and Shall Be Stopped ! Your
Kansas City Citizens' Protective Council is fighting intimidation,
coercion and violence ! It is fighting lawlessness ! It is fighting
mobs ! It is fighting destruction of the Rights of both Em-
ployees and Employers !"
The advertisement stated that the Council was not fighting unions,
but neither the text of the advertisements nor the bulletins distributed
by the Council to its members support that statement.
A bulletin, dated September 27, 1935, stated :
"Both the Citizens' Protective Council and the Employers' Asso-
ciation are often called upon for special investigation and watch-
man service. Our organizations are not set up to furnish such
service, but we are in position to confer with our members regard-
ing such problems, and to recommend competent and trusted
investigators, watchmen and guards." (Italics supplied.)
KANSAS CITY POWER & LIGHT COMPANY 1421
This bulletin indicates a close relationship between the Council and an
association of employers and an identity of membership with that
association. This is confirmed by an undated "Special Bulletin"
with the letterhead of the Council and signed "Employers' Associa-
tion, Dale Harman, Manager."
An undated bulletin, which lists Porter, Bettis, and Smith, the
three principal officers of the respondent, as members of the executive
committee of the Council, stated that the aims of the Council are :
"To keep labor racketeers and Communists out of Kansas City,
its industrial business affairs and the ranks of labor . . . to
keep out of Kansas City racketeers who seek to prey upon
workers and business, and to eliminate Communistic agents who
thrive upon industrial strife."
Among "The Ways and Means" suggested for achieving this end
was "Cooperating with and giving advice to . . . industries whose
employees are sufficient in number to invite the exploitation of their
employees on the part of the labor racketeers."
A bulletin dated June 21, 1935, urged that
"Solid opposition to the labor agitator must be maintained and
strengthened. Without solidarity between employers, it is easy
for the union `business agent' to sign up smaller firms, and once
these agitators have a foothold in a community, no one is safe.
The results are disastrous equally to employees and to business.
Any relaxation of a united front serves as a signal to profes-
sional organizers to redouble their efforts. Only through the
continued cooperation of every business and industry in Kansas
City can this racket be wiped out."
In a "Special Bulletin" dated December 17, 1935, the Council stated
its opposition to the closed shop and to the "imported salaried
agitator who comes here, unasked, for the sole purpose of causing
trouble to Kansas City workmen and . . . industry. We are fight-
ing the spread of Communism, particularly in labor unions ..."
The purpose of the Council is to discourage the self-organization
of employees in Kansas City and its activities, as shown above, are
directed toward that end. That the respondent has assisted the
Council and approved of its activities is shown by the presence of
the respondent's three principal officers on the executive committee
of the Council and by the respondent's monetary contributions to
the Council. While the record does not show a direct relationship
between the activities of the Council and the self-organization of
the respondent's employees, it does show clearly that the attitude
of the respondent is unmistakably anti-union. By its connection
with and assistance to the Council, and by its approval of the activi-
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties of the Council designed to dissuade employees in Kansas City
from organizing for the purposes of collective bargaining and to
persuade employers in Kansas City to prevent self-organization by
their employees, the respondent has shown that its attitude toward
the self-organization of employees is one of aggressive hostility.
B. Interference, restraint, and coercion
1. The employment of labor spies
During the period from 1931 through 1937 the respondent paid
$31,091.53, "for services rendered," to two detective agencies, namely,
the National Detective Agency, also known as the Laughlin Detective
Agency, and Ahner Detective Agency, also known as Harry Widman
and as Industrial Investigators and Engineers, Inc. These two
agencies furnished the respondent with a number of labor spies who
worked with the employees and reported their union activities to the
detective agencies which sent reports to the respondent.
Frank William Haywood was one of these labor spies. He was
employed by Ahner as operative No. 422, and worked as an employee
in the respondent's production department. Haywood was paid $25
a week when he first began work in 1934, but later his salary was
increased to $27.50. This represented his total salary from both the
respondent and Ahner. His arrangement with Ahner called for no
payments by Ahner unless the salary paid by the respondent fell
below that which Ahner agreed to pay him as an under-cover labor
spy. Haywood quit in 1936. Thereupon Ahner offered him $145 per
month, on the same basis as before. Haywood accepted and returned
to work in the respondent's plant. He was also given an allowance
of $5 per month for expenses in obtaining information.
When Haywood began his employment with the respondent, he
was interviewed by Jacob A. Keeth, mechanical engineer and assistant
to Guy T. Shoemaker, vice president in charge of the overhead de-
partment. He also saw Thomas J. Essex, chief engineer at the re-
spondent's Northeast plant. Keeth gave Haywood an application
form, which the latter took back to Ahner's Kansas City office to
fill out. At Ahner's suggestion he gave a false birthplace on the
application to avoid any suspicion that he came from St. Louis,
Ahner's headquarters.
When Haywood began his work, he was instructed "to report any-
thing out of line in the regular duties of the men in the plant." He
sent daily reports in longhand to Ahner's office .in St. Louis, Missouri.
In these reports he gave the names of employees who spoke for and
against the A. F. of L. Some of these employees were later dis-
charged as set forth below. He reported no instance of an employee
KANSAS CITY POWER & LIGHT COMPANY 1423
drinking on the job or stealing, although the respondent maintained
that the detectives were hired for that purpose. At one time Haywood
was ordered not to write reports, "but if anything interesting came
up," to convey the information to Ahner by telephone.
Haywood joined Independent Union of Power Workers, herein
called the Power Workers, an independent labor organization of the
employees in the respondent's production department. This organi-
zation was active in the summer of 1937. Haywood attended all its
meetings and talked a good deal about it with other employees. He
was on friendly terms with A. M. McLemore, an employee who- was
on the executive committee of the Power Workers. His reports set
forth information concerning the activities of the Power Workers.
Haywood attended a meeting of the Brotherhood at which Clyde
Acock, formerly president of the Power Workers and then president
of the Brotherhood, invited him to join the Brotherhood. Accord-
ing to Acock, Haywood "didn't seem to want to, and when we called
the meeting we asked him to retire." Haywood withdrew. He testi-
fied that he had heard all that he wanted to, and was not ready to
join the Brotherhood.
Haywood joined the Association and made reports concerning its
activities.
Haywood was laid off on October 8, 1937. He reported to Wid-
man, Ahner's Kansas City representative, who told him that Keeth
could place Haywood in another department "until such time as
things quieted down," when he could return to the production de-
partment. Haywood applied to the Association to obtain reinstate-
ment for him. Widman told him that Keeth thought that Haywood
had taken "the proper way to go about it."
Lawrence Sinkey was one of the labor spies hired by the respondent
through the National Detective Agency. He was operative No. 35 of
the National Detective Agency and worked in the respondent's plants
as an under-cover agent from September 28, 1936, until June 1937, at
which time he testified that his employment with and his reports to
the National Detective Agency ceased. He is still in the respondent's
employ.
Prior to his employment as a labor spy, Sinkey had been unable to
secure steady employment. While working as a cook at the Iowa
State Fair grounds, he answered a "blind" advertisement in a Des
Moines newspaper for a lineman. He was interviewed by a public
stenographer who later instructed him where to meet her client,
W. B. Laughlin, president of the National Detective Agency.
Laughlin told Sinkey that it would be his duty to make reports on
efficiency, drunkenness on the job, thefts,, treatment of their sub-
ordinates by foremen, and the attitude of the employees toward the
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent. He was instructed by Laughlin to mingle and associate
with the employees, and to send daily reports to a Kansas City post-
office box. Sinkey testified that he did not understand the nature
of the work when he accepted the job or that he would be required
to work as a labor spy. He realized the "viciousness" of the job,
after he began work, explaining that he continued in order to support
himself and his family.
Laughlin told Sinkey that he would work in the respondent's over-
head department, that he was to apply to the respondent's personnel
department, and that "from then on he would be taken care of.""
The only salary received by Sinkey was that paid him by the
respondent.
Sinkey joined the Association and reported the activities of its
organizers and the names of some of its officers when they were elected.
He reported statements by certain employees that the respondent was
sponsoring the Association.
Both Haywood and Sinkey received complaints from the detective
agencies about their reports. Sinkey was criticized for failing to,
specify the names of employees to whom he made reference. Hay-
wood was censured for not securing the information desired from
McLemore, an officer of the Power Workers, and because information
that Acock had been elected president of the Brotherhood reached the
Ahner agency before Haywood reported it.
The detective agencies sent reports to the respondent. The reports
sent to the respondent by the Ahner Detective Agency were type-
written, were signed with a number, and were mailed from a St. Louis
post-office box. The reports were read by at least Vice-President Bettis,
Clinton C. Cornelius, assistant superintendent in the overhead depart-
ment, Keeth, and Essex. The reports were destroyed after they were
read. Keeth testified that he was not instructed to destroy the reports,
but did so because he "figured they were poor evidence to have around."
Bettis testified that the detectives were hired to report on thefts and
missing property. He further testified that the detectives were re-
quired to go through the usual hiring procedure and become employees
of the respondent, because "naturally you have to keep it a secret" as
otherwise their services would be valueless. According to Bettis,
Ahner's detectives were unable to discover the source of thefts of the
respondent's property, so he engaged detectives from the National
Detective Agency -who were able to furnish some information concern-
ing missing property.
The record shows clearly that both the Ahner Detective Agency
and the National Detective Agency planted labor spies in the re-
spondent's plants and in the labor organizations of the respondent's
employees and that the respondent engaged their services for that
purpose.
KANSAS CITY POWER & LIGHT COMPANY 1425
We find that by the employment of labor spies, as set forth above,
the respondent has interfered with, restrained, and coerced its em-
ployees in the exercise of the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities,
for the purposes of collective bargaining and other mutual aid and
protection.
C. Domination of and interference with the formation and adminis-
tration of the Plan and the Association
1. The Plan
In the latter part of 1933 a labor organization known as Employes
Representation Plan, herein called the Plan, was established by the
respondent among its employees. On September 30, 1933, the respond-
ent sent to its employees copies of a constitution of the Plan which
it had drafted, accompanied by a letter which stated, inter alia, that :
We believe that such an organization is desired by many of
our employes. Accordingly, ive have taken it upon ourselves to
investigate the various types of organizations. The enclosed
plan, which is being submitted for the consideration of each
employe, appears to be the most practical and desirable of all
those checked. It is essentially the same as the plans in opera-
tion in the companies mentioned above.4
It is planned to establish an entirely new and independent
department, called Employe Relations Department, which will be
specifically charged with the promotion of the well being of the
employes of the Company and harmonious relations between the
employes and the management. This department will be headed
by a Director of Employe Relations, and his department will
supervise in an impartial manner as between the management
and the employes, the development, introduction and operation
of an Employes Representation Plan. Your attention is called
to the fact that no dues are assessed and collected by this
organization.
The letter also stated that the respondent would conduct an elec-
tion among the employees to determine whether or not they approved
the Plan. In an election held on October 11, 1933, the employees
voted their approval of the Plan. The respondent appointed Bettis,
vice president, as Director of Employee Relations to supervise the
development, introduction, and operation of the Plan.
I The letter listed 33 companies with similar plans
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Plan divided the Company into nine departments and pro-
vided for departmental councils and a general council.5 The former
consisted of representatives elected by the employees of each depart-
ment and an equal number of employer-representatives designated by
the respondent. The general council consisted of the members of the
departmental councils who had received the highest number of votes
in their respective departmental elections and an equal number of
representatives designated by the respondent. The secretaries for
all the councils were appointed, and paid by the respondent.
Bettis presided over all meetings held by the departmental coun-
cils and by the general council. The employee-representatives were
paid by the respondent for time devoted' to Plan affairs. The entire
cost of the Plan and all the expenses of its operations were borne by
the respondent.
The Plan in substantially its original form was in operation until
the spring of 1937. In its answer the respondent admitted that it
contributed financial support to the Plan, but denied that it intended
to dominate the Plan. At the oral argument before the Board, coun-
sel for the respondent conceded that the Plan "did not meet with the
requirements of the National Labor Relations Act." The undisputed
facts set forth above show and we find that the respondent initiated
and sponsored the Plan, contributed financial and other support to it,
and after the effective date of the Act, dominated and interfered with
its, administration and continued to contribute financial and other
support to it.
2. The Association
Shortly after the Supreme Court of the United States rendered
its decisions on April 12, 1937, upholding the constitutionality of the
Act, President Porter verbally notified Bettis that he was no longer
to perform his duties as Director of Employee Relations. Thereupon
Bettis instructed his secretary to notify the employee-representatives
that the respondent had abandoned the Plan. The record is not en-
tirely clear that the employee-representatives were so notified. At least
two of the employee-representatives, Paul A. White, Jr., and Arnold
Steinbeck, were not so notified. The record shows that the respond-
ent did not itself notify any of the ordinary employees that it had
abandoned the Plan ; further, the record does not show that the ordi-
nary employees were so informed by the employee-representatives. As
a result of the respondent's failure to notify all its employees that it
had abandoned the Plan, it must be inferred that the great body of the
The constitution of the Plan was introduced as Brotherhood Exhibit No . 7 in Matter
of Kansas . City Power f Light Company and Local Union B-412,- International • Brotherhood
of- Electrical Workers, Case ' No. R-298, a representation proceeding in which the Decision
and Order was issued this day. The parties to that proceeding ' are the same- as those in
thef instant case.
KANSAS CITY POWER & LIGHT COMPANY 1427
respondent's employees did not know that the respondent had aban-
doned the Plan.
W. R. Kent, employed by the respondent for 22 years as a lineman
and "troubleman," and at one time a minor officer of the Plan, claimed
that in May 1937 lie conceived the idea of forming the Association. He
testified that he had found nothing wrong in the functioning of the
Plan and would have been perfectly satisfied if the Plan had
continued.
At about 7 a. m. on May 29, 1937, Kent telephoned his immediate
superior, Dysart, superintendent of the "trouble" department, at the
latter's home and requested an immediate interview. Dysart granted
his request. - Kent.informed Dysart that he had read in the newspapers
that supervisory employees could not belong to a labor organization,
and that since supervisory employees participated in the Plan, he was
under the impression that the Plan was "dead." He told Dysart that
he intended, therefore, to form a new labor organization among the
respondent's employees. He requested Dysart to arrange an immediate
appointment for him with Bettis. Dysart refused to do so, and stated
that as far as he was concerned Kent could join any labor organiza-
tion that he wished. Thereupon, Kent went to the respondent's garage.
Bettis drove into the garage while Kent was talking with Fred H.
Haniarstrom, who was an employee-representative for Kent's depart-
ment under the Plan and who had agreed to assist him in forming the
Association. Kent and Hamarstrom accompanied Bettis into Bettis'
office where a conversation similar to that between Kent and Dysart
took place. Kent requested Bettis to call a meeting of the employee-
representatives for the purpose of abandoning the Plan. Bettis
refused. He advised Kent and Hamarstrom that he would have noth-
ing to do with the formation of the labor organization which they
planned and that they could join any labor organization that they
wished.
Later the same morning Kent and Hamarstrom visited Garrett and
Ruark, a firm of attorneys in Kansas City. They told Ruark that
they desired to form a labor organization composed only of the
respondent's employees and that they had brought with them copies
of the constitutions of the Plan and various other unaffiliated labor
organizations. They explained to Ruark that they wished to form
their organization as soon as possible in order to forestall the forma-
tion of any other labor organization among the respondent's em-
ployees. Ruark agreed to have a constitution ready by the following
evening, May 30, 1937. When they returned to his office at that
time, Ruark gave them a typewritten copy of the constitution, which
he had drafted, and an application card to be used in soliciting mem-
bers for their organization. Ruark advised them to have the con-
stitution, mimeographed, as that was the quickest method of obtain-
169134-39-vol. 12-91
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing a large number of copies. Kent testified that the,same night,
a Sunday, he went to a nearby printing establishment where he or-
dered 3,000 printed application cards and 3,000 printed copies of the
constitution. Although the printer did not know Kent and although
it was his practice to do business only for cash, he testified that he
accepted Kent's order on Kent's personal guaranty of payment. On
the next working day, June 1, 1937, Hamarstrom had copies of the
constitution mimeographed after business hours on one of the re-
spondent's machines by two women employees, one of whom was
secretary to Cornelius, assistant superintendent of the overhead
department.
The constitution stated the name of the organization to be Asso-
ciation of Employees of the Kansas City Power & Light Company.
The organizational structure provided by the constitution is almost
identical with that provided under the Plan. Like the Plan, it
divides the respondent's employees into nine departments called
"Chapters"; and like the Plan's Departmental Councils and General
Council it has Chapter Committees and a General Council. The
General Council is the governing body of the Association and is
composed of one committeeman from each Chapter.
The constitution provides that :
Ratification by two-thirds of the chapters which were func-
tioning as Councils under the Employes Representation Plan,
heretofore in effect, shall be sufficient- for the adoption of this
CONSTITUTION; and adoption shall constitute a reorganiza-
tion of those Councils as Chapters of this Association.
The committeemen and councilmen now serving under the Em-
ployes Representation Plan shall serve as committeemen and
councilmen of this Association until their successors can be
elected, and when this Constitution is adopted, the said Em-
ployes Representation Plan shall cease to exist.
Kent and Hamarstrom notified the employee-representatives under
the Plan of a meeting which was held on June 1, 1937, for the pur-
pose of considering the constitution for the Association. A majority
of the employee-representatives were present. Clyde Acock, an em-
ployee-representative for the production department, attended the
meeting and stated that he thought that the constitution of the Associ-
ation would please the respondent, but that the employees in the pro-
duction department were forming their own labor organization and
would not cooperate in the formation of the Association. After
further discussion Carl D. Dimity, an engineer in the overhead de-
partment, appointed a committee to draft the constitution to include
all the respondent's employees in the Association. On June 4, 1937,
this committee met at the home of one Van Dyke, who works in the
KANSAS CITY POWER & LIGHT COMPANY 1429
respondent's "trouble" section assigning calls to about 150 employees,
called "troublemen."
Late in the evening, B. James George was requested to attend the
meeting. He is a lawyer, but is employed by the respondent as a
power salesman. He receives $395 per month, a salary equivalent to
that of high supervisory employees of the respondent.6 He has been
in the respondent's employ since 1920. In 1931 he was employment
manager in the personnel department. Later lie was transferred to
his present position. He served a term as an employee=representative
under the Plan. When he arrived at the meeting, he announced that
he had always been opposed to joining unions. Nevertheless, he
signed an application for membership in the Association. He took
a copy of the constitution home with him, and after studying it agreed
to help organize the Association.
As provided in the constitution of the Association most of the em-
ployee-representatives under the Plan served as committeemen and
councilmen of the Association until elections were held in the latter
part of June 1937. In the meantime the organizers of the Association
began a campaign for membership. According to B. James George,
the organizing committee for the Association started its work imme-
diately after the meeting at Van Dyke's home.
Solicitation for membership in the Association was carried on by
certain employees who served as its organizers. A substantial part of
the solicitation occurred during working hours, on company property,
and in the presence of supervisory employees who took no action to
stop it.
The activities of L. D. Tainter, an estimator, and Marion R. George,
who is not related to B. James George, are illustrative of the solicita-
tion carried on in behalf of the Association. Tainter visited several
groups of the outside employees, such as crews of linemen and ground-
men, and solicited their membership in the Association during work-
ing hours and with the knowledge of the foreman. Thus upon
Tainter's arrival on one occasion, two linemen, without any repri-
mand from their foreman, descended from the poles on which they
were working. Then all the men in the gang climbed into one of the
respondent's trucks where Tainter spoke to them for at least 20
minutes. The foreman came up to the truck and saw Tainter with
application cards in his hands and talking to the men. Thereupon
the foreman withdrew until Tainter had finished. On another oc-
casion when Tainter was soliciting another crew of outside workers,
the foreman called one of the employees down from the pole upon
which he was working, so that Tainter could solicit him. Marion R.
u Cornelius, assistant superintendent of the overhead department, receives $274, and
Essex , chief engineer , receives $414 per month -
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
George visited an outside crew and solicited their membership for at
least 40 minutes during working hours. During this time the fore-
man sat in a car at some distance from the respondent's truck at which
Marion R. George was soliciting the crew. After George departed
the foreman ordered the crew back to work. The employees in the
crew were paid for the time during which George solicited them.
On one occasion Tainter and Dimity, an engineer, secured the sig-
natures of about 25 to 30 men in about 40 minutes at a suboffice of
the respondent at Ottawa, Kansas.' According to Dimity, he tele-
phoned from Kansas City to Ottawa the day before and instructed a
person who was not identified at the hearing to tell the employees to
meet Dimity there at 7 a. m., an hour before work began. He met
the employees in front of the suboffice at Ottawa at that early hour.
He testified that he led the men into an alley behind the respondent's
garage and secured their signatures there, because he felt that the
respondent's office was not a proper place for solicitation for the
Association. The congregation of so large a number of employees
at the respondent's suboffice at such an early hour is so unusual that
we cannot believe that it occurred without instruction from some
supervisory employee. We find that the respondent ordered these
men to assemble for the purpose of being solicited by Tainter and
Dimity.
On June 15, 1937, at the suggestion of B. James George, six em-
ployee-representatives, who were members of the General Council
under the Plan, and who were then serving as members of the General
Council of the Association, sent a letter to President Porter, announc-
ing that the Association had secured 1,263 members and that the
constitution had been ratified and requesting a conference with the
respondent and recognition as the sole bargaining representative of
the respondent's employees. Porter replied by a letter dated June
16, 1937, agreeing to confer with the Association at its convenience.
Thereafter from June 23 to July 1, 1937, the Association held a series
of organization meetings for the various chapters of the Association.
At these meetings, which were held after working hours and off com-
pany property, the constitution was again read and approved, al-
though each applicant had already accepted the constitution by sign-
ing his application. The Chapter committeemen and members of
the General Council were elected by secret ballot. Chapters A and
B, which covered the respondent's production department, were not
organized during this period. In this department there was strong
opposition to the Association.
On the evening of July 2, 1937, the General Council held a meet-
ing. B. James George was elected chairman of the General Council,
v Ottawa is about 58 miles from Kansas City.
KANSAS CITY POWER & LIGHT COMPANY 1431
the highest position of the Association. The expenses incident to
the organization of the Association, which had been incurred by vari-
ous individuals, were assumed by the Association, and money already
collected as dues was turned over to the Association.
At this meeting the necessity for speed in securing recognition
by the respondent in order to forestall recognition by the respondent
of other labor organizations, particularly Independent Union of
Power Workers, was stressed. This union had been organized among
the employees in the production department during June 1937 by
employees who were convinced that the Association was a company-
dominated labor organization. The membership of the Power Work-
ers was limited to the employees in the production department. On
July 1, 1937, the executive committee of the Power Workers sought
a conference with Guy T. Shoemaker, vice president in charge of
the production department, concerning recognition of the Power
Workers by the respondent as exclusive bargaining representative
of the employees in the production department. At Shoemaker's
request this conference was deferred until the following day, July
2. 1937. At this conference the executive committee requested Shoe-
maker to recognize the Power Workers.. He advised the executive
committee to send a letter to President Porter requesting recog-
nition. The Power Workers sent a letter dated July 2, 1937, to Presi-
dent Porter, stating that the Power Workers represented 95 per
cent of the employees in the production department and request-
ing a conference and recognition as the exclusive bargaining repre-
sentative of such employees. This letter was sent to Porter's home
address and was not received by him until July 6, 1937.8 Porter
replied by a letter dated July 7, 1937, agreeing to confer with the
Power Workers on July 9, 1937.
At the meeting of the General Council of the Association held on
the evening of July 2, 1937, the General Council unanimously adopt-
ed a resolution presented by the Association's attorneys, authoriz-
ing a majority of the members of the General Council to confer
with President Porter on the following morning, July 3, 1937, and
to demand: (1) recognition as the exclusive bargaining representa-
tive of all the respondent's non-supervisory employees; (2) seniority
by lines of employment; (3) installation by the respondent of the
check-off system for the collection of dues in the Association; and
(4) recognition of the principle of the closed shop, subject to ap-
proval by a vote of two-thirds of the Association's members. Ruark,
the Association's attorney, was instructed to secure an appointment
with Porter for the following morning. A conference was held in
Porter's office on the following morning, Saturday, July 3, 1937.
8 July 4 was a Sunday and July 5 , 1937 , was a holiday.
1432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The respondent was represented by Porter and its attorneys. The
Association was represented by B. James George, four other mem-
bers of the General Council, Hamarstrom , who had been elected
temporary assistant secretary- treasurer , Kent, who held no office in
the Association, and Ruark.
Although the labor spies in the respondent's employ had kept the
respondent informed concerning the activities of the Power Work-
ers and had reported that the Power Workers was going to request
recognition, and although such request had already been made on
July 2, 1937, in its conference with Vice-President Shoemaker, Por-
ter accepted without any proof the claims of the representatives of
the Association that 1,263 employees had signed cards designating
it as their bargaining representative.° -On the basis of these claims,
the respondent recognized the Association as the exclusive representa-
tive of the respondent's employees. At first Porter objected to the
Association's demands for the check-off and the closed shop, but in
the course of the conference agreed to them. By the afternoon an
agreement had been prepared by B. James George and Ruark, acting
for the Association, and the respondent's attorneys. It included the
demands authorized by the resolution adopted by the General Coun-
cil at its meeting on July 2, 1937. The agreement also contained pro-
visions outlawing for a period of 3 years strikes and lock-outs until
after the failure of arbitration.
Thus when representatives of the Power Workers conferred with
President Porter on July 9 and 13, 1937,10 they were told by him that
their request for recognition was too late and that the respondent had
already signed an agreement recognizing the Association as the ex-
clusive bargaining representative of the respondent's employees. At
the July 13, 1937, conference Porter handed the representatives of
the Power Workers a letter stating that the respondent was bound by
its contract with the Association, but would agree to recognize each
labor organization as the bargaining representative of its members,
pending a decision by the Board on the question whether or not the
respondent could do so. Enclosed in the respondent's letter was a
copy of a letter from the Association's attorneys to the respondent's
attorneys. In the latter letter the Association's attorneys agreed to
recommend to the Association that it consent to recognition of the
Power Workers as the bargaining representative for the members of
0 There are about 1,700 regular employees
10 Association Exhibit No . 10, a copy of the minutes of the meeting of the Power Work-
ers on July 13, 1937, states that the Power workers conferred with the respondent on
July 9 and 13, 1937 Board Exhibit No . 32, a copy of a letter dated July 13, 1937, from
President Porter to the Power workers, refers to a conference between the respondent and
the rowers workers on July 11, 1937 It is not clear from the record whether or not
there were three such conferences or whether one date is incorrectly stated. In any event
it is not necessary to resolve this apparent conflict between the two documents
KANSAS CITY POWER & LIGHT COMPANY 1433
the Power Workers, if each organization stipulated that each was a
bona fide labor organization and if each would submit to the Board
for determination only the question whether or not there might be
more than one labor organization representing the respondent's
employees.
These letters show a concern on the part of both the respondent and
the Association as to whether the Association was the free representa-
tive of employees which the Act contemplates. They were an attempt
by the respondent and the Association to estop the Power Workers
from asserting that the Association was a company-dominated labor
organization. The Power Workers refused to accede to the sugges-
tions of the respondent and the Association. Faced with a closed-shop
contract which entrenched the Association, the Power Workers was
unable to continue its activities. At a meeting held on August 2, 1937,
its members voted to dissolve the Power Workers. Thereafter many
of the members of the Power Workers joined the Brotherhood. Some
joined the Association.
On August 2, 1937, the Association conducted a referendum among
its members in regard to the closed-shop provision of the contract.
More than two-thirds voted in favor of the closed shop. On August
20, 1937, the Association distributed to all employees letters which con-
tained copies of certain correspondence between B. James George and
President Porter. This correspondence consisted of a letter from
George to Porter requesting the latter to state what had occurred in
the negotiations between the Association and the respondent and a
reply by Porter in which he reviewed the negotiations beginning on
June 15, 1937. In this letter Porter stated that negotiations for a
detailed contract were being conducted, that a check-off of Association
dues for 2 months in advance had been installed, and that numerous
complaints had been adjusted by collective bargaining. The letter
concluded with a declaration that the respondent was of the opinion
that the Association "was properly and validly organized and is en-
titled, under the National Labor Relations Act, to represent its mem-
bers in all matters affecting their interests. The contract of July 3,
1937, was entered into by the Company in good faith and the Company
intends to comply strictly with its terms and conditions, as well as
with the terms and conditions of any other agreements made supple-
mental thereto."
On September 23, 1937,- the respondent and the Association exe-
cuted a detailed contract to be effective for a period of 3 years from
July 3, 1937, and thereafter from year to year unless notice of a
desire to negotiate a new agreement was given by either party 30
days prior to the expiration date. The contract provided for a closed
shop to become effective November 1, 1937.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Concluding Findings
The undisputed facts establish that the respondent dominated and
interfered with the formation and administration of the Plan and
contributed financial and other support to it. The respondent's en-
tire course of conduct, after it realized in April 1937 that it could
no longer lawfully continue its participation in the Plan, shows that
it was the desire and intent of the respondent to maintain its dom-
ination over the organization representing its employees for the pur-
poses of collective bargaining by continuing the Plan, with certain
changes, under a new name. The acts and conduct of the organizers
and leaders of the Association confirm this conclusion.
After the decisions of the Supreme Court in April 1937, the re-
spondent did not notify the bulk of its employees that it was aban-
doning the Plan, but permitted them to assume that it was still con-
tinuing. In contrast to the widespread publicity which it gave the
establishment of the Plan among, its employees, the respondent, in
a most informal and almost furtive manner gave verbal notice that
it was abandoning the Plan to, only a small number of employees who
had been employee-representatives under the Plan. These employees
played leading parts in transforming the Plan into the Association.
Kent and Hamarstrom, who took the initial steps in organizing the
Association, felt it necessary and proper to seek advice and assistance
from Bettis, vice president of the respondent and in charge of the
operation of the Plan, thereby showing that in their minds it was
clear that the respondent desired the Plan to be continued.
The constitution and organizational structure of the Association
show that it is a continuation of the Plan with slight modifications.
The structure of the Association and the Plan are almost identical,
except that in the Association there is no provision for employer-
representatives. The constitution of the Association in express terms
states that it is a "reorganization" of the Plan, and that the chapters
of the Association are a continuation of the councils of the Plan.
The employee-representatives under the Plan served as the officers
of the Association during the transition from the Plan to the Asso-
ciation. Prominent in its activities from the start and later chief
officer in the Association was B. James George, a highly paid power
salesman who had at one time been the respondent's employment
manager.
Widespread solicitation of employees was carried on by Associa-
tion organizers on company time and property, and in the presence
of foremen, who assisted the solicitation by permitting the employees
to leave their work and congregate for the purpose of solicitation by
the Association's organizers. There is some evidence that Brother-
hood members engaged in organizing activity on behalf of the
KANSAS CITY POWER & LIGHT COMPANY 1435
Brotherhood on company time and property. But the evidence does
not indicate that such activity was widespread, or that the foremen
knew of or permitted Brotherhood members to engage in such activity
in their presence or by temporarily absenting themselves from the
scene of solicitation, as did foremen in the case of organizing
activity on behalf of the' Association. The evidence does not show
that groups of employees were permitted by their foremen to leave
their work, to congregate, and to assemble in company trucks for
the purpose of being solicited for membership in the Brotherhood, as
groups of employees were permitted to do by their foremen when
the Association was seeking their membership. The assistance
which the Association received from the respondent accounts in large
measure for the speed with which the Association was enabled by the
respondent to organize the respondent's employees.
Thereafter, at a time when the Power Workers was requesting
recognition and when the respondent's labor spies were reporting
the activities of the Power Workers, the respondent hastily signed a
closed-shop contract with the Association on the basis of oral claims
by the Association to represent a majority of the employees. This
so firmly entrenched the Association that it caused the Power Work-
ers to dissolve. The respondent's eagerness to install the Association
among the employees and make it acceptable to them is shown by
its attempt to induce the Power Workers to stipulate that the Asso-
ciation was the free representative of employees which the Act con-
templates, and by the letter of the respondent, which the Association
sent to the employees, assuring the employees that the Association
"was properly and validly organized and is entitled, under the Na-
tional Labor Relations Act, to represent its members in all matters
affecting their interests."
We find that the respondent has dominated and interfered with
the administration of the Plan and has contributed financial and other
support to it and that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed support to it. We also find that the contracts above
mentioned, entered into by the respondent and' the Association are
void and of no effect because they were made with a labor organiza-
tion whose formation and administration had been so dominated,
interfered with, and supported.11 Independently of this finding of
the invalidity of the above-mentioned contracts, the closed-shop pro-
Ii See Matter of Clinton Cotton Mills and Local No 2182 , United Textile Workers of
America, 1 N L R B. 97; Matter of The Electric Auto-Lute Company, Bay Manufacturing
Division and International Union. United Automobile Workers of America, Local No 526,
7 N L. R B 1179, Matter of McKaig - hatch, Inc. and Amalgamated Association of Iron,
Steel , and Tin Workers of North America, Local No 1139 , 10 N L R B 31 ; Matter
of Williams Coal Company and United Mine Workers of America, District No 23, 11
N L R B 579
1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vision of the contract is invalid. Having been made with a labor
organization established, maintained, -and assisted by unfair labor
practices, the closed-shop provision does not fall within the proviso
of Section 8 (3) of the Act.12
D. The discharges of Cunningham and Burns
Boss C. Cunningham . Cunningham was employed by the respond-
ent on August 13, 1929, as an oiler in its Grand Avenue plant. He
also worked at times as a relief or substitute turbine operator, and
was so engaged at the time of his discharge on August 24, 1937.
In 1933 Cunningham joined an affiliate of the A. F. of L. In the
summer of 1937 he joined the Power Workers and attended its meet-
ings. He became a member of the Brotherhood on July 19, 1937,
and attended its meetings , but it does not appear that he was active or
prominent in it.
On August 24, 1937, he was working as a relief turbine operator
on turbine No. 8. It was his duty to adjust the steam valves so that
sufficient steam pressure flowed into the turbine for the production
of the proper amount of electrical current. At 6:50 a. m. Cunning-
ham relieved the turbine operator on the night shift . The latter
informed him that turbine No . 8 had been scheduled "to go on the
line" at 6:40 a. m., but had not yet done so. Shortly thereafter a
signal- horn blew signifying that turbine No. 8 was "on the line".
Cunningham signalled back that he had received the notice . Accord-
ing to the respondent , it was Cunningham 's duty at this point to open
the reducing valve, thereby permitting the steam pressure in the
turbine to be increased . Instead Cunningham proceeded to a nearby
railing and informed another employee that turbine No. 8 was "on
the line." He then came back and examined a vacuum device on
turbine No. 8 to ascertain if the vacuum had gone down . While so
engaged the signal horn blew again . He then telephoned Keeton, the
switchboard operator , whose duty it is to synchronize the loads on
the various turbines when they "go on the line ." Keeton told him
that the steam pressure on turbine No. 8 had gone down. Cunning-
ham returned to the turbine and found that the steam pressure had
12 The proviso of Section 8 (3) of the Act reads' as follows :
That nothing in this Act . . . shall preclude an employer from making an agree-
ment with a labor organization ( not established , maintained , or assisted by any action
defined in this Act as an unfair labor practice) to require as a condition of employ-
ment membership therein, if such labor organization is the representative of the em-
ployees as provided in section 9 (a), in the appropriate collective bargaining unit
covered by such agreement when made
See Matter of Clinton Cotton Mills and Matter of Williams Coal Company, footnote 11,
supra. Moreover it was not proved that the Association represented a majority of the
respondent 's employees at the time that the contract providing for a closed shop was
entered into.
KANSAS CITY POWER & LIGHT COMPANY 1437
fallen below normal. Thereupon he opened the reducing valve and
the steam pressure then increased sufficiently to operate the turbine
satisfactorily.
Later that day Harold S. Chowins, superintendent of the Grand
Avenue plant, called Cunningham and George Moore, assistant shift
engineer, to his office . He showed Cunningham an automatically
recorded chart which had registered an abrupt drop from 180 to 100
pounds in the steam pressure on turbine No. 8 a few minutes before
7 a. m. Chowins asked Cunningham for an explanation and when
the latter informed him what he had done, Chowins told him that it
appeared to him that Cunningham had not been "on the job." Later
the same day he discharged Cunningham.
Cunningham testified that the procedure which he had followed
was proper. Chowins, however, testified that after Cunningham
received the first signal that the turbine was "on the line," the only
action required of Cunningham was to open the reducing valve. He
further testified that he fully investigated the failure of steam pres-
sure and was satisfied that Cunningham alone was responsible for it.
He stated that the mistake was a serious one and that if it had not
been detected in sufficient time it might have resulted in a failure of
electrical current for the Kansas City street-car system, which re-
quires a peak load at about 7 a. m.
Chowins estimated that he had discharged about 12 or 15 employees,
in the past 5 years for mistakes. In some other instances he did not
discharge employees who had made mistakes, either because the
mistake was not serious or, if it was serious, the employee had a
good work record and had made no major mistakes previously.
Cunningham 's record as a workman included an instance where he
had been found sleeping on the job. Chowins testified that he con-
sidered that Cunningham's work record did not justify overlooking
his mistake on August 24, 1937.
We find that the record does not support the allegations of the com-
plaint that Ross C. Cunningham was discharged because of his union
membership and activity.
Raymond E Burs. Burns entered the respondent's employ as a
clerk in the inventory department on December 1, 1934. After work-
ing a year in this position he quit. After an interval of 2 or 3
months, he returned to the respondent's employ as a groundman in
the overhead department under Foremen Church and Hendrix. He
holds a bachelor's degree in electrical engineering from a privately
owned engineering college in Kansas City.
In the spring of 1937, Burns asked Cornelius, assistant superintend-
ent of the overhead department, for a better position, stating that
he wished to do office work. Cornelius advised him to wait, pointing
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
out that Burns needed practical experience to qualify as an estimator
or engineer, since without such experience the only office work open
to him was purely clerical.
Burns joined the Brotherhood in August 1937, solicited member-
ships, and spoke to other employees in favor of the Brotherhood.
During the same month Cornelius instructed Burns to take an
examination for the position of third-class lineman. When Cornelius
became assistant superintendent of the overhead department in 1933,
a system of promotion by examination was already in effect. Corne-
lius adopted a plan of using one-half of the positions of groundmen
for the purpose of developing new linemen and training future esti-
mators, engineers, and office employees. If groundmen fail to pass
these examinations, thereby qualifying themselves for one of these
higher positions within a period of time deemed sufficient by the
respondent, they are discharged. According to Cornelius, Burns was
hired with the expectation that he would become a lineman and pos-
sibly an estimator. The written examination which Burns was
required to take was the same as that used in testing other ground-
men for the position of third-class linemen. Burns testified that he
began this written examination at 4 p. in., and tried to finish it by
5 p. m., as he was under the impression that only one hour was
allowed for the examination. Cornelius testified that employees are
allowed as much time as they need, but that only one hour is on com-
pany time and that any additional time spent in the examination is
not paid for by the respondent.
Burns received a grade of 67; 85 is passing. While considerable
testimony was given at the hearing concerning the fairness of the
questions and the method used in grading Burns' answers to them, we
are unable to find that there was any impropriety in this respect.
Cornelius testified that he determined to give Burns his examina-
tion because the reports from his foreman indicated that Burns
might not make a satisfactory lineman and because he wished to
give Burns an opportunity to establish himself as an employee
eligible for promotion to the position of third-class lineman. Ac-
cording to Cornelius, Burns was discharged because he had failed to
make progress warranting his promotion and resented taking orders.
Hendrix, who was Burns' foreman for about 11 months, testified that
Burns was "a little nervous and flighty," but that his work as a
groundman was satisfactory. Church, who was Burns' foreman for 2
months, testified that Burns was "partly satisfactory," but that he
resented taking instructions and was "nervous or flighty."
We find that the record does not support the allegations of the
complaint that Raymond IT. Burns was discharged because of his
union membership and activity.
KANSAS CITY POWER & LIGHT COMPANY 1439
E. The transfers to less favorable positions
Clyde Acock. Acock has been employed by the respondent as a
maintenance machinist for 16 years. For the 15 years preceding
his transfer on August 3, 1937, to the Baltimore Avenue plant, he
worked at the respondent's Northeast plant.
In 1933 he joined International Brotherhood of Boilermakers, Iron
Ship Builders and Helpers, affiliated with the A. F. of L. He had
served as an employee-representative under the Plan for the em-
ployees in the Northeast plant and was active in presenting griev-
ances. In 1934 Essex, chief engineer at the Northeast plant, told him,
"You are going to keep coming up here for the grievances of these
men until the powers to beget tired and they are going to fire them
and you too."
When the Power Workers was organized in the summer of 1937,
he was elected president. He was a member of the Power Workers
committee which interviewed Vice-President Shoemaker in early July
1937, when the Power Workers was seeking recognition as the repre-
sentative of the employees in the production department. He also
signed the letter to Porter in which the Power Workers demanded
such recognition, and attended its first conference with Porter on July
9, 1937. He attended the meeting on June 1, 1937, of the employee-
representatives under the Plan at which the Association's constitution
was discussed and there opposed the formation of the Association.
After the dissolution of the Power Workers, he was elected presi.
dent of the Brotherhood. He solicited about 25 employees to join
the Brotherhood in July and August 1937. He invited Haywood,
the Ahner operative, to join the Brotherhood. Haywood reported
Acock's activities in the Power Workers and the Brotherhood.
Divers, another Ahner operative, was in Acock's gang for about 2
weeks in 1934, and it may be presumed that he also reported Acock's
union activities.
On August 3, 1937, the day after the Power Workers dissolved
and many of its members had joined the Brotherhood, Keeth, assist-
ant to Vice-President Shoemaker and in charge of the production
department, ordered Acock transferred to the respondent's Balti-
more Avenue steam-heating plant, known among the employees as
the "Graveyard" because it is an old plant and there is no prospect for
advancement for employees assigned to work there. The reports
of the Ahner Detective Agency concerning the production department
were sent to Keeth.
Keeth's explanation for Acock's transfer is that an insurance in-
spector had condemned about one-half of the tubes and headers in
the boilers at the Baltimore Avenue plant and that the Missouri
State Utilities Commission had ordered tests to be made on certain
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
unused "stand-by" boilers. These replacements and tests required
additional work on the boilers. Keeth testified that he transferred
Acock to perform such work in the Baltimore Avenue plant because
he felt that Acock's services could be spared at the Northeast plant.
As far as the record shows, no other employees were assigned to per-
form such work at the Baltimore Avenue plant.
The transfer did not affect Acock's rate of pay, which is $1.026
per hour. When he was first transferred to the Baltimore Avenue
plant, Acock understood that the transfer was temporary. On De-
cember 1, 1937, the timekeeper at the Baltimore Avenue plant or-
dered him to start punching the clock at that plant, which he had not
previously been required to do. Acock regarded this instruction as
constituting a permanent transfer to the Baltimore Avenue plant.
Keeth testified that Acock's transfer is temporary, and that when
the boiler work had been brought up-to-date at the Baltimore Ave-
nue plant, Acock would be transferred back to the Northeast plant.
Acock testified that in his opinion, owing to the age of the bailers,
the boiler work at the Baltimore Avenue plant will never be brought
up-to-date so long as the plant is operated.
The transfer of Acock removed him from the Northeast plant,
where the organization of the Brotherhood first started. In view of
his leadership in the Power Workers and the Brotherhood and his
opposition to the Association, all of which was well known to the
respondent, and in view of the reports of the labor spies concerning
Acock's union activities, and the absence of any showing by the re-
spondent that other employees were also' transferred to the 'B'alti-
more Avenue plant, we are convinced that Acock was singled out
for a transfer because of his union activities and to segregate him
from the other members of the Brotherhood at the Northeast plant 13
We find that the respondent, by transferring Clyde Acock to the
Baltimore Avenue plant has discriminated in regard to terms and
conditions of employment, thereby discouraging membership in the
Brotherhood and interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
Boyd James (Cotton) Owens. Owens has been in the respondent's
employ since about October or November 1928. About July 1929
he was promoted to the position of third-class lineman and assigned
to trimming trees. For a period of 9 months beginning about Oc-
tober 1930 he was foreman of a tree-trimming gang. Until August
1937 he worked as a third-class lineman, tree trimmer, and tree-trim-
na See Matter of Fansteei Metallurgical Corporation and Amalgamated Association of
Iron, Steel and Tin Workers of North America , Local 66, 5 N. L. R. B. 930 , affirmed in this
respect in National Labor Relations Board v. Fansteel Metallurgical Corp , 306 U S. 240 ;
1939
KANSAS CITY POWER & LIGHT COMPANY 1441
ruing foreman. During his 9 years of employment with the re-
spondent he has worked as a tree trimmer or tree-trimming foreman
for about 6 years.
Owens joined the Brotherhood late in May 1937 . He was not
active or prominent in its affairs.
About August 24, 1937 , at which time he was working as a third-
class lineman, he was notified by Assistant Superintendent Cornelius
that he would be transferred to work as a tree-trimming foreman
in the respondent 's eastern district . The headquarters of the eastern
district are at Carrollton , Missouri , about 70 miles from Kansas
City. Cornelius informed him that after having investigated the
records of various employees he had concluded that Owens was best
qualified for this position . Owens stated that he did not want the
job and that he could not foresee further promotion if he was
assigned to it. He informed Cornelius that his ambition was to
become a first-class lineman, at an hourly rate of about $1.07 per
hour , and that working as a tree-trimming foreman would not help
qualify him for that position . He also stated that he was building
his home at Lenexa, Kansas, about 16 miles from Kansas City, Mis-
souri , and that the proposed transfer would force him to dispose
of his home and livestock and to place his children in another school.
After several meetings with Cornelius , the latter , on September 9,
1937 , finally ordered him to go to Carrollton and to make his living
arrangements preparatory to going to work in the eastern district.
Thereafter, Owens and his family moved to Carrollton and Owens
took up his work as a tree-trimming foreman with a 10-cent hourly
increase in his wages . He estimated that his expenses incident to
this transfer amounted to $250.
The reason given by the respondent for transferring Owens is
as follows : About August 1937 , the manager of the Carrollton office
advised Cornelius that the trees in the eastern district were being
"butchered" because of inadequate supervision and that a tree-trim-
ming foreman was needed . Cornelius selected Owens for this posi-
tion because of his experience . Although there were three other em-
ployees with more seniority than Owens as tree trimmers, they
lacked Owens' experience and qualifications as a tree-trimming
foreman.
Owens joined the Association about June 15, 1937 , although he
did not approve of the manner in which it was organized. When
he was first notified that he would be transferred to Carrollton he
filed a grievance with his Association representative , who also
attended some of the conferences between Cornelius and Owens. The
Association representative was unable to persuade Cornelius to
rescind Owens' transfer . Although the Association engaged in a
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prolonged correspondence with the respondent concerning Owens'
transfer, it had not secured a final statement from the respondent
at the time of the hearing.
We find that the record does not support the allegations of the
complaint that Boyd James ( Cotton ) Owens was transferred to a
less favorable position because of his union membership or activity.
F. The discharge o f Thomas H. Gregg
Thomas H. Gregg entered the respondent 's employ on January 18,
1925, and worked steadily until he was discharged on August 24,
1937 . For some time prior to his discharge he had been working as
head boiler-cleaner at the Northeast plant.
During the summer of 1937 Gregg was asked to join the Associa-
tion on several occasions by Kent, who , as set forth above, was one
of the leading organizers of the Association . Gregg refused, in-
forming Kent that he intended to join the Power Workers, which he
did. After the dissolution of the Power Workers , he joined the
Brotherhood , of which he is a charter member. He spoke to other
employees in favor of the Brotherhood . Two Ahner operatives,
Divers and Haywood, worked in his gang at different times , Divers
in 1934 and 1935, and Haywood on several occasions . The last time
that Haywood worked in Gregg's gang was about 3 months before
Gregg's discharge . It is a reasonable inference that these labor spies
reported his union affiliation and activities to the respondent, and we
so find.
On August 24, 1937, Gregg and his boiler-cleaning gang were en-
gaged in cleaning the inside of boiler No. 9. It is very hot and
dusty in the boiler. The men wear respirators and work in shifts
because of the size of the boiler , the heat , and the necessity for
changing the filters on the respirators , which must be done outside the
boiler. The men working inside the boilers cannot stand upright
or kneel , and must do their work lying on the tubes of the boilers.
Thomas Johnson, the superintendent of the boiler room, stated that
the work inside the boiler is unpleasant and that the men "have my
sympathy." It had always been Gregg 's practice alternately to work
and rest the men in shifts of two or three . Not more than three men
can work in the boiler at one time . There had been no complaints
concerning Gregg's method of having the men work in shifts.
At about 10 a. in. Gregg and two of the men in his boiler -cleaning
gang were standing or sitting outside boiler No. 9, while two other
men in his gang were inside the boiler . As Gregg explained, "We
had to work in shifts. Part of the men had to get out because they
got all they could stand, and let others go in. The tubes were so hot.
In order to clean the tubes you have to lie on your side in the boiler,
KANSAS CITY POWER & LIGHT COMPANY 1443
on those hot tubes . . . Two of these men were in there working,
and three of us were on the outside, that already had been working,
and came out for some fresh air."
At this time Essex came up to Gregg and informed him that the
men inside the boiler were not working, saying, "Every God damn
time I come around here there is nothing going on." Gregg replied
that he believed that the men inside the boiler were at work, although
he could not see the men inside the boiler from where he was standing.
According to Essex, he and Harry B. Atherton, his assistant, were
on one of their regular inspection tours when they saw Gregg and
two of his men sitting outside the boiler. He observed Gregg for
about 10 minutes and then walked up and asked him what he was
doing. When Gregg told him that the gang was cleaning boiler
No. 9, he looked inside the boiler and saw two men lying there on
the boiler tubes, but not working, and saw no dust which would have
been stirred up if the men had been working. After asking Gregg
why he was not keeping his men busy and after some further discus-
sion Essex and Atherton departed.
Later that morning Essex ordered Johnson to bring Gregg to
Essex' office. When Gregg and Johnson arrived there, Essex had
already made out a time slip for Gregg. Atherton was also present
at this meeting. Essex explained at the hearing that he had not
signed the time slip because he wished to hear Gregg's explanation.
Essex told Gregg that his work and conduct were unsatisfactory and
asked for an explanation of the incident that morning. He told
Gregg that he guessed that he was going to discharge him. When
Gregg asked Essex if he was in fact going to discharge him, Essex
stated that he was. Gregg then asked to have his "time" made out
and Essex signed the time slip which he had previously prepared,
and gave it to Gregg, saying, "Here is your time, it is all ready made
out." Gregg was very angry and said to Essex, "God damn you, I
consider you lower down than a snake." Gregg started to leave the
office and turned about suddenly and walked toward Essex, who was
also very angry. Essex thought that Gregg was advancing toward
him in a menacing manner as if to strike him. Essex seized a wire
cable 12 inches long and one-half inch thick, which was lying on his
desk, and ordered Gregg to leave the office. Gregg departed.
The work inside the boiler is admittedly unpleasant and the dif-
ficult conditions under which it must be performed are such that the
boiler cleaners must leave the inside of the boiler at frequent in-
tervals in the course of their work on a particular boiler. In view
of the type of work performed by the boiler-cleaning crew and the
conditions under which they work, as stated above, we' find it in-
credible that Essex should want to discharge Gregg, who had worked
169134-19-vol 12--92
1444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the respondent for 12 years, for the reasons assigned by Essex.
The reports of the labor spies had informed the respondent of
Gregg's union affiliation and activity. We are of the opinion that
the respondent had already determined to discharge him prior to
the incident of August 24, 1937, because of his union affiliation and
activity, and that Essex arranged the interview in his office to give
the appearance that Gregg was being discharged for unsatisfactory
work. Under the circumstances, Gregg's request for his time slip
did not constitute a voluntary quitting of employment, but was
merely a request for the necessary papers to collect his wages after
he knew that Essex was discharging him. It is clear that he was
not discharged,because of anything that took place in Essex's office.
We find that the respondent discharged Gregg because of his union
membership and activity.
We find that the respondent by discharging Thomas H. Gregg
discriminated in regard to hire and tenure of employment, thereby
discouraging membership in the Brotherhood, and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
At the time of his discharge, Gregg was earning 74.5 cents per hour.
It does not appear that he has earned any money since that date.
G. The discharges on September 17 and October 4, 1937
William J. Embree. Embree worked for the respondent for a
period of about 6 months in 1925 and alike period in 1935. He was
again employed by the respondent on April 1, 1936, and worked
steadily until his discharge on September 17, 1937. He was a worker
in the labor gang at the Northeast plant. His work consisted of
cleaning up, repairing and performing minor building work, and
doing relief work as a substitute for absent employees.
In the summer of 1937, Kent, in the presence of Shefritzl, a turbine-
room engineer with about 25 employees under his supervision, asked
Embree to join the Association. Embree refused, stating that he
did not consider the Association "a fitting organization." Kent then
asked him if he had already joined a labor organization and Embree
replied that he had. About August 15, 1937, Troy Carroll, an as-
sistant operating engineer who at times was Embree's superior, asked
Embree if he had joined the Brotherhood. Embree answered that
he had. Carroll then told him that he should have joined the Asso-
ciation since the respondent favored it, and that employees should
try to accommodate the respondent by joining the organization which
it favored.
Embree had been a member of the Power Workers and after its
dissolution joined the Brotherhood. About September 15, 1937, he
KANSAS CITY POWER & LIGHT COMPANY 1445
participated in a discussion regarding the Brotherhood and its activ-
ities. Haywood, the labor spy, was present at this discussion. Two
days later, September 17, 1937, Chief Engineer Essex told him that
he was not needed any longer because employees on vacation had
returned and because several boilers at the Northeast plant were now
using gas instead of coal for fuel. Essex stated that there might
be work in the spring.
Raymond Hoge. Hoge entered the respondent's employ on August
1, 1936, and worked steadily at the Northeast plant in the labor,
fuel, and coal gangs until he was discharged on September 17, 1937.
In the summer of 1937 he joined the Power Workers and, after
its dissolution, joined the Brotherhood. He talked with Haywood,
the labor spy, several times during the summer of 1937, both before
and after Hoge joined the Brotherhood, of which he is a charter
member. Haywood asked him if he was joining the Brotherhood
and Hoge told him that he was. Hoge asked Haywood to join the
Brotherhood, but the latter declined, stating that he thought that
he would see how things were going and perhaps later join the
Brotherhood or the Association.
On September 17, 1937, Essex discharged him. The record does
not show that Essex told him the reason for his discharge.
Matthew W. Gamble. Gamble entered the respondent's employ
on May 3, 1937, and worked steadily until his discharge on September
17, 1937. He worked in the labor gang at the Northeast plant doing
maintenance work except for a period of 5 weeks in the summer of
1937 during which he worked as a "substitute for absent employees.
When he was employed he was told that the work was temporary,
but lie claimed that the respondent also told him that if his' work
was satisfactory he could continue working for the respondent as
long as he wished.
In the summer of 1937 Gamble joined the Power Workers and,
after its dissolution, joined the Brotherhood. He is a charter mem-
ber of the Brotherhood and attended its meetings. He spoke in
favor of the Brotherhood in the presence of Haywood, the labor spy.
On September 17, 1937, Essex discharged Gamble, telling him that
the respondent needed fewer men since it was changing many of its
boilers at the Northeast plant from coal to gas fuel. At that time
Gamble had not been working in the coal gang.
George W. Hurst. Hurst entered the respondent's employ on June
4, 1934, and worked steadily until he was discharged on October 4,
1937. He was a worker in the labor and fuel gangs at the Northeast
plant.
In the summer of 1937 he joined the Power Workers and, after its
dissolution, joined the Brotherhood, of which he is a charter member.
1446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
He solicited memberships for both organizations. During this period
he refused to join the Association when asked to do so by another
employee in the presence of Fox, his immediate superior. In Sep-
tember 1937 Haywood, the labor spy, asked Hurst several times if
he was a member of the Brotherhood and reported that he was
talking in favor of the Brotherhood.14
On October 4, 1937, Hurst was working as a. relief employee in the
boiler department. At noon he was transferred back to the labor
gang. Chief Engineer Essex discharged him that night, stating the
reason to be the change from coal to gas as a fuel, in some of the
boilers.
John J. O'Hara. O'Hara began working for the respondent on
April 5, 1935, and worked steadily until his discharge on October 4,
1937. He was a worker in the labor gang at the Northeast plant and
also performed a variety of work when regular employees were
absent.
In the summer of 1937 O'Hara joined the Power Workers and,
after its dissolution, joined the Brotherhood. Haywood, the labor
spy, made a report that O'Hara was talking in favor of the A. F. of
L. O'Hara refused to join the Association when he was solicited by
Kent and Tainter. One of them told him that President Porter had
recognized the Association as the exclusive bargaining representative
of the employees, stating, "You might as well join now because that
is what it is going to be." Late in September 1937, Elmer Dunkin,
an Association member, told him that he had it "from good authority"
that members of the Brotherhood "had better get out and join the
Association," and that "if they didn't, there would be a lot of new
faces at the plant."
Donald M. Keir. Keir entered the respondent's employ on May 15,
1935, and worked steadily until his discharge on October 4, 1937. He
worked principally in the labor gang at the Northeast plant.
When he was hired, Chief Engineer Essex asked him if he was a
member of Operative Plasterers and Cement Finishers' International
Association of the United States and Canada, affiliated with the
A. F. of L. He told Essex that he was a member, but not active. In
September 1937, Troy Carroll, assistant operating engineer and Keir's
immediate superior at that time, asked him if he was. going to join
the Association. He replied that he did not intend to do so'because
he believed that the Association was dominated by the respondent
and because he had been in the A. F. of L. for many years. In the
14 Haywood's testimony was. that he reported Hurst, O'Hara, Keir, Winters, and Nord-
stiom as talking in favor of the A. F. of L. Since the only affiliate of the A F. of L.
among the respondent 's employees is the Brotherhood , a report that an employee was
talking in favor of the A F of L was tantamount to reporting that he was talking in
favor of the Brotherhood.
KANSAS CITY POWER & LIGHT COMPANY 1447
summer of 1937, he joined the Power Workers and, after its dissolu-
tion, joined the Brotherhood, of which he is a charter member. Hay-
wood, the labor spy, reported that he was talking in favor of the
A. F. of L.
Essex discharged him on October 4, 1937.
John H. Earickson. Earickson worked for the respondent for a
period of 7 months in 1935. On April 1, 1936, he returned to the
respondent's employ and worked steadily in the labor gang until he
was discharged on October 4, 1937.
A few days before his discharge he was urged by Carroll, his imme-
diate superior, and Moritz, a turbine operator, to join the Association.
Carroll advised him that it would be beneficial for him to join the
Association, pointing out that Dunkin and Angus Williamson, who
had been laid off on September 17, 1937, were members of the Associa-
tion and had already been reinstated. Earickson was a member of
the Power Workers and is a charter member of the Brotherhood.
On October 4, 1937, Essex discharged Earickson, stating that the
respondent was required to lay men off because employees had returned
from their vacations and because of the change from coal to gas at the
Northeast plant.
Harry A. Winters. Winters entered the respondent's employ on
June 6, 1936, and worked steadily in the labor gang at the Northeast
plant until he was discharged on October 4, 1937. At the time he was
hired he was told that the work was temporary.
Two or three weeks prior to Winters' discharge, McCollum, an
operating engineer and at times his immediate superior, told him that
the respondent would never consent to an outside labor organization
telling it what to do and that "the quicker we found that out, the
better off we would be." Carroll, who also at times was his immediate
superior, asked Winters to join the Association, but the latter refused.
In the summer of 1937 he joined the Power Workers and, after its
dissolution, joined the Brotherhood, of which he is a charter member.
Haywood, the labor spy, reported that he was talking in favor of the
A. F. of L.
He was discharged on October 4, 1937, and was told that it was due to
a decrease in work.
The respondent gave the following explanation for the discharges
of these eight men : Employees of the respondent take their annual
vacations during the period from May to October. The eight dis-
charged employees were hired to act as substitutes during such vaca-
tion periods. A number of employees continued to work after the
vacation periods for which they were hired because the respondent was
engaged in remodeling and modernizing its property, work which had
been delayed because of the depression. After the expiration of the
1448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vacation period in 1937, these eight men were discharged because the
remodeling and modernizing work had been completed. In addition,
in June 1937 the respondent changed from coal to gas as a fuel for
several of its boilers at the Northeast plant. This change resulted in
a large decrease in the amount of coal used at the Northeast plant
and necessitated a reduction in the number of employees there, includ-
ing those who were handling coal and also those who were engaged
in cleaning and maintaining the Northeast plant and boilers.
While the evidence supports the respondent's contention that a re-
duction in the number of employees in the gangs at the Northeast plant
was necessary, we are not persuaded that these eight men were dis-
charged for that reason.
Keeth and Essex were in charge of the Northeast plant where the
organization of the Brotherhood first started. Both Keeth and
Essex read the reports which Keeth- received from the respondent's
labor spies. These reports furnished these two supervisory employees
with information from which they could determine the extent of the
Brotherhood's membership and activity and which employees had
expressed themselves in favor of the Brotherhood and against the
Association. Haywood made reports that four of the five men dis-
charged on October 4, 1937, were talking in favor of the A. F. of L.
The three men who were discharged on September 17, 1937, disclosed
their preference for the Brotherhood in conversations with or in the
presence of Haywood, the labor spy. It must be presumed that their
membership in and activity on behalf of the Brotherhood were re-
ported to the respondent by him. It thus appears that the respondent
had knowledge that at least seven of these eight men were members
of the Brotherhood. These facts cast grave doubt upon the sincerity
of the respondent in asserting that it selected these men -for discharge
solely because of a decrease in work.
The above and other facts persuade us that the respondent dis-
charged these men because of their membership and activity in the
Brotherhood. We are impressed by the fact that, shortly before
their discharge, three men were advised by their superiors to join
the Association as a means of safeguarding their jobs. At the time
these men were discharged, the respondent had entered into a con-
tract with the Association which contained a provision for a closed
shop which had already been ratified by the members of the Associa-
tionafi It is a reasonable inference that under such circumstances the
respondent, in selecting men for discharge, selected those men whom
it knew to be members of the Brotherhood. This inference is sup-
ported by the fact that the respondent retained in its employ Associa-
tion members with less seniority than some of the Brotherhood mem-
15 This is the contract referred to in Section III C 2, supra.
KANSAS CITY POWER & LIGHT COMPANY 1449
bers who were discharged. So far as the record shows, no employee
in the labor gangs at-the Northeast plant-who was a member of the
Association was discharged except Dunkin and Williamson who, as
stated below, were promptly reinstated.
Earl Steigers was one of the Association members who was re-
tained even though he had less seniority than Hurst, Keir, and
O'Hara . The respondent contended that it retained Steigers because
he had impaired his eyesight while working for the respondent and
because of his ability to operate a locomotive crane. There is some
doubt as to the gravity of his eye injury, since he was permitted to
do roofing work while his eye was being treated. If his eye injury
was not serious, it would not seem to constitute a sufficient reason for
retaining him in preference to three employees with greater seniority.
If his eyesight had been seriously impaired , it would have diminished
his ability to operate a locomotive crane ; so that his ability in this
respect would not be a reason for retaining him in preference to three
employees with greater seniority. We are satisfied that Steigers was
retained because he was an Association member and not for the
reasons given by the respondent.
Spansbauer was another Association member who was retained
even though, according to Essex, Spansbauer had less seniority than
Hurst and O'Hara. The respondent contended that it retained
Spansbauer because he had experience in boiler-maintenance work
and because he could be used as a relief fireman. We are not im-
pressed with this explanation , because all the employees in the re-
spondent's labor gang performed many kinds of work, and the
respondent has shown no reason why Spansbauer's alleged ability to
act as a relief fireman was entitled to greater consideration than the
abilities of the discharged employees who had also acted as relief
workers in various capacities . Moreover , as appears below, special
skill did not prevent the discharge of Nordstrom , a Brotherhood
member who, possessing a special skill, was nevertheless discharged,
while another employee, who apparently possesed no special skill
and who had much less seniority than Nordstrom , was retained in
preference to him. We are satisfied that Spansbauer was retained
because he was an Association member and not for the reasons given
by the respondent.
Two other Association members, Dunkin and Williamson, who had
less seniority than at least five of the discharged men, were laid off
on September 17, 1937, but they were promptly reinstated and given
work in other departments of the respondent. Dunkin and Wil-
liamson applied for reinstatement through the Association. Their
Association representative brought the matter to the attention of
Essex , who conferred with Keeth. While Keeth was discussing the
1450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
matter with Vice-President Shoemaker in the latter's office, Vice-
President Bettis came in and stated that he could use these two men
in the overhead department if they were "all right-good workers."
Both men were then given jobs in the overhead department, although
his fellow employees considered that Dunkin "was more or less of a
shirker." The record does not show that the eight discharged men
were not "all right-good workers." The respondent made no show-
ing that there were no jobs available for these men in other depart-
ments.
We find that the respondent discharged William J. Embree, Ray-
mond Hoge, and Matthew W. Gamble on September 17, and George
W. Hurst, John J. O'Hara, Donald M. Keir, John H. Earickson, and
Harry A. Winters on October 4, 1937, because of their membership
and activity in the Brotherhood. The respondent, by discharging
these men, discriminated in regard to hire and tenure of employment,
thereby discouraging membership in the Brotherhood, and interfer-
ing with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act.
All these men were receiving 60.8 cents per hour at the time of
their discharges. They have since earned the following sums : Earick-
son, $70; Embree, $60; Gamble, $60; Hoge, $100; Hurst, $29; Keir,
$50; and Winters, $20. O'Hara has had no earnings since his dis-
charge.
H. The discharge of Carl J. Nordstrom
Carl J. Nordstrom entered the respondent's employ on February
21, 1928, and worked steadily in the labor gang at the Northeast
plant as a maintenance employee finishing and patching cement until
he was discharged on October 8, 1937. A few weeks prior to his dis-
charge he was assigned to work as an ordinary laborer but without
any reduction in wages.
About August 1937 Nordstrom joined the Power Workers and,
after its dissolution, joined the Brotherhood, of which he is a charter
member. Haywood, the labor spy, reported that Nordstrom was talk-
ing in favor of the A. F. of L. Chief Engineer Essex discharged
him on October 8, 1937.
The respondent contended that it laid Nordstrom off for lack of
work. Although Nordstrom had worked steadily for the respondent
for 10 years, Keeth, mechanical engineer in charge of the produc-
tion department, testified that he and Essex decided to retain an
employee named Lovell in preference to Nordstrom, even though
the latter had more ability and seniority. Keeth testified that the
reason for retaining Lovell was that he was an older man who would
find it more difficult to obtain another job. Keeth also testified that
KANSAS CITY POWER & LIGHT COMPANY 1451
if Nordstrom had been retained, it would have been necessary to re-
duce his hourly wages from 72 cents to 60 cents and that he was
afraid such a r" eduction would create bad feeling on Nordstrom's part.
We find that the respondent's explanation conflicts with its alleged
policy of retaining men who had special skills in preference to em-
ployees who did not. It seems incredible that after the respondent
had kept Nordstrom finishing and patching cement for 10 years, it
should suddenly find that it was no longer worthwhile to retain such
an employee in preference to an employee who was admittedly less
skilled, less able, and of less seniority. Another fact which casts
doubt upon the respondent's explanation and leads us to believe that
Nordstrom was discharged because of his membership in the Brother-
hood is that Keeth and Essex, who determined to keep Lovell in
preference to Nordstrom, had read the reports of Haywood, the
labor spy, who, as stated above, had reported Nordstrom.
We find that the respondent discharged Carl J. Nordstrom because
of his membership and activity in the Brotherhood. The respond-
ent, by discharging Nordstrom, discriminated in regard to hire and
tenure of employment, thereby discouraging membership in the
Brotherhood, and interfering with, restraining, and coercing its em-
ployees in the exercise of the rights guaranteed in Section 7 of the
Act.
Nordstrom was receiving 72 cents per hour at the time of his
discharge. He has since earned about $20.
1. The discharge o ,f Elmo Joseph
Elmo Joseph began working for the respondent as an employee in
the range department. Shortly thereafter he was transferred to work
as a groundman in the overhead department.
Joseph joined the Association in the summer of 1937. He also
filed an application for membership in the Brotherhood, but never
paid dues or attended its meetings. During the summer of 1937,
Tainter, a leading organizer for the Association, threatened him with
the loss of his job if he did not give the former the names of fellow
employees who were members of the Brotherhood. He gave Tainter
the names of two linemen, Casey and Hudson, who later learned
that he had done so. Joseph testified that thereafter Casey and
Hudson deliberately instructed him to bring them the wrong mate-
rials and then criticized him in the presence of the foreman for
bringing them the-materials which they had requested.
On November 3, 1937, Joseph was engaged in hoisting some mate-
rial to a lineman who was working on a pole. Joseph, who is 21
years old, complained to Foreman Hendrix that the materials were
too heavy for him to hoist. Hendrix assigned a 60-year-old employee
1452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to hoist the materials and assigned Joseph to cutting spacing pike,
instructing him not to cut it "slaunch-wise." Hendrix testified that
Joseph failed to follow these instructions, and that when he repri-
manded Joseph, the latter told him that if he did not approve of
the manner in which Joseph was cutting the pipe, Hendrix could cut
it himself. According to Hendrix, he then told Joseph that his work
had been unsatisfactory, that he had retained him because of the
appeals of Joseph's father, but that he could not tolerate such a
remark. Hendrix testified that Joseph then asked him for a trans-
fer, but, after consulting the respondent's office, he sent Joseph to the
office. The respondent discharged Joseph the next day.
Joseph's version of the discharge was that Hendrix frequently ridi-
culed the former's father, who was employed by a local park board,
by describing him as "a petty politician." He testified that he asked
Hendrix for a transfer to another job because of this ridicule and that
Hendrix stated that he would not transfer him, but would discharge
him.
We find that the record does not support the allegations of the com-
plaint that Elmo Joseph was discharged because of his union member-
ship or activity.
J. The discharges on December 10, 1937
George Lopp. Lopp entered the respondent's employ on August
20,1935, as a miscellaneous construction electrician and worked steadily
at the Northeast plant until he was discharged on December 10, 1937.
In the summer of 1937, Lopp joined the Power Workers and, after
its dissolution, joined the Brotherhood, of which he is a charter mem-
ber. He was active in the Brotherhood and secured about 15 members
for it. He was asked by a fellow employee to join the Association, but
refused to do so.
In August 1937, Frank Kelly, a supervisory employee, told him that
a large electrical-installation job in the switch house, which would
take about a year to complete, would begin soon and that he intended
to assign Lopp, among others, to this work. On December 10, 1937,
Clarence B. Kelley, the assistant electrical engineer in the production
department, discharged him.
William W. Rockwell. Rockwell entered the respondent's employ
on June 8, 1936, as a construction electrician, and worked steadily at
the Northeast plant until his discharge on December 10, 1937.
In the summer of 1937 he joined the Power Workers and, after its
dissolution, joined the Brotherhood, of which he is a charter member.
He was active in the Brotherhood and secured about 15 or 20 members
for it.
KANSAS CTTY POWER & LIGHT- COMPANY 1453
Clarence B. Kelley discharged him on December 10, 1937. A short
time prior thereto, Kelley told Rockwell that he intended to use him
in the installation of oil-circuit breakers in the switch house at the
Northeast plant.
William 0. Dennis. Dennis entered the respondent's employ on
February 17, 1937, as a construction electrician and worked steadily
at the Northeast plant until he was discharged on December 10, 1937.
When he was hired, Roger L. Frisby, the electrical engineer in the
production department, asked Dennis if he had a union card. Dennis
replied that he did not have one at that time. In the summer of 1937,
Dennis joined the Power Workers and, after its dissolution, joined the
Brotherhood, of which he is a charter member.
Several weeks after he was hired he asked Clarence B. Kelley, one
of his supervisors, how long his job would continue and Kelley told
him that there was about a year's work rebuilding equipment in the
switch house at the Northeast plant. The respondent discharged him
on December 10, 1937.
The respondent explained the discharges of these three employees
as follows : In 1935 the respondent entered upon a large-scale pro-
gram to replace old equipment and to install certain necessary new
equipment, work which had been deferred during the depression.
The program was so large that the respondent was unable to com-
plete it in 1935, with the result that some of the work was carried
over and performed in 1936 and 1937. This program was completed
by December 10, 1937, except for the installation of 21 circuit breakers
in the switch house. Frisby testified that after inspecting the 21
circuit breakers upon their arrival from the manufacturer, 5 were
found to have defective parts and were shipped back to the manu-
facturer for replacement. He stated that the respondent would not
install any of these 21 circuit breakers until all 21 had been inspected -
and found ready for immediate installation.
The record supports the respondent's explanation that a reduction
in the number of miscellaneous construction electricians was neces-
sary at this time, and we are not satisfied that the evidence shows that
these three men were selected for discharge in this reduction in force
for discriminatory reasons.
We find that the record does not support the allegations of the
complaint that George Lopp, William W. Rockwell, and William 0.
Dennis were discharged because of their union membership and
activity.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
1454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
scribed 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.
THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we will order that it cease and desist therefrom, and that
it take certain affirmative action which will effectuate the policies of
the Act.
We have found that the respondent has dominated and interfered
with the formation and administration of the Association and has
contributed support to it. Its continued existence is a consequence
of violation of the Act, thwarting the purpose of the Act and ren-
dering ineffective a mere order to cease the unfair labor practices.',,
In order to effectuate the policies of the Act and free the employees
of the respondent from such domination and interference, and the ef-
fects thereof, which constitute a continuing obstacle to the exercise by
the employees of the rights guaranteed them in the Act, we will order
the respondent to withdraw all recognition from the Association as
representative of the respondent's employees for the purposes of deal-
ing with the respondent concerning grievances, labor disputes, wages,
rates of pay, hours of employment, and conditions of work, and to
disestablish it as such representative. Since the contracts between
the respondent and the Association embody recognition of the Asso-
ciation as such representative, and since, further, the contracts repre-
sent the fruit of the respondent's unfair labor practices, and are a
device to perpetuate their effects and a cover under which the re-
-spondent,may continue to commit unfair labor practices, we will or-
der the respondent to cease and desist from giving effect to the con-
tracts heretofore described or any other contract or agreement it may
have entered into with the Association in regard to rates of pay,
wages, hours of employment, or other conditions of work .17
"'See Consolidated Edison Co . v. National Labor Relations Board, 305 U S 197, 236
(1938 ), where the Court stated:
"The continued existence of a company union established by unfair labor practices or of
a union dominated by the employer is a consequence of violation of the Act whose con-
tinuance thwarts the purposes of the Act and renders ineffective any order restraining the
unfair practices."
National Labor Relations Board v Pennsylvania Greyhound Lines, 303 U. S 261 ( 1988)
National Labor Relations Board v Pacific Greyhound Lines, 303 U. S 272 (1938) ; Na-
tional Labor Relations Board v. Fansteel Metallurgical Corp, footnote 13, supra.
"National Labor Relations Board v . Stackpole Carbon Company, 105 F. (2d) 167
(C. C. A. 3d; 1939) ; Matter of Clinton Cotton Mills and Matter of TP'illiams Coal Com-
pany, footnote 11, supra.
KANSAS CITY POWER & LIGHT COMPANY 1455
The contract of September 23, 1937, provided for a check- off; and
the respondent has deducted from the wages of its employees who
were members of the Association 25 cents per month as dues for the
Association. This check-off is a device utilized by the respondent to
insure the perpetuation of the results of its unfair labor practices,
namely, the prevention of the self-organization of its employees. Not
content with having interposed the company-dominated Association
as a buffer and obstacle to self-organization, the respondent, by this
check-off, has required its employees to' devote part of their wages
for the maintenance of the very, instrumentality which frustrates
them in the exercise of the rights guaranteed them in the Act and
which thwarts the purposes of the Act. We will order the respondent
to reimburse the employees who were members of the Association for
the dues and assessments, if any, which the respondent has deducted
from their wages on behalf of the Association.'8
We have found that the respondent has engaged in unfair labor
practices by transferring Acock to a less favorable position and by
discharging 10 other employees. We will order the respondent to
offer Clyde Acock an immediate transfer to his former position in
the Northeast plant, without prejudice to his seniority and other
rights and privileges. We will also order that the respondent offer
to Thomas H. Gregg and Carl J. Nordstrom immediate and full
reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority and other rights and privileges,
and to niake'them 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 that which he would normally have earned as
wages from the date of his discharge to the date of the offer of
reinstatement, less his net earnings 19 during said period.
In regard to the eight other discriminatorily discharged employees
the record indicates that the jobs formerly held by these discharged
employees may not be immediately available and shows that em-
ployees were discriminatorily retained in preference to some of the
18 Matter of The Heller Brothers Company of Newcomers town and International Brother-
hood of Blacksmiths , Drop Forgers, and Helpers , 7 N. L. R B. 646 ; Matter of Lone Star
Bag and Bagging Company and Tes;tile Workers Organizing Committee , 8 N L R. B 244;
Matter of West Kentucky Coal Company and United Mine Workers of America , District
No 23, 10 N. L . R. B. 88; Matter of Williams Coal Company, footnote 11, supra.
11 By "net earnings" is meant earnings less expenses , such as transportation , room, and
board , incurred by an employee in connection with obtaining work and working elsewhere
than for the respondent , which would not have been incurred but for his unlawful dis-
charge and the consequent necessity of his seeking employment elsewhere See Matter of
Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union , Local 2590, 8 N L. R . B. 440. Monies received for
work performed upon Federal , State, county , municipal , or other work -relief projects are
not considered as earnings , but, as provided below in the Order , shall be deducted from
the sum due the employee , and the amount thereof shall be paid over to the appropriate
fiscal agency of the Federal , State, county , municipal , or other government or governments
which supplied the funds for said work-relief projects.
1456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
eight discharged employees and that other employees were dis-
criminatoiily transferred 'tb ' positions in other departments of the
respondent in preference to some of the eight discharged employees.
In order to effectuate the policies of the Act the respondent will
be required to reinstate these discharged employees to such positions
as they would now be occupying, if the respondent had not discrimi-
nated against them. We will therefore order the respondent to offer
to John H. Earickson, William J. Embree, Matthew W. Gamble,
Raymond Hoge, George W. Hurst, Donald M. Keir, John J. O'Hara,
and Harry A. Winters reinstatement to their former or substantially
equivalent positions or, if no such positions be available, then to any
position for which they may be qualified. The offer of reinstatement
shall be without prejudice to their seniority and other rights and
privileges. Such reinstatement shall be effected in the following
manner : All, or such number as may be necessary, of employees hired
after September 17, 1937, who occupy the former positions of the eight
discharged men or substantially equivalent positions or positions for
which they may be qualified, and all, or such number as may be neces-
sary, of employees in the respondent's employ on September 17, 1937,
whose retention in substantially -equivalent positions, or transfer to
positions for which the eight discharged employees may be qualified,
constituted a discrimination against the latter employees, shall be dis-
missed if necessary to provide employment for those to be offered
and who accept reinstatement. If thereupon, despite such reduction
in force, there is not sufficient employment immediately available for
all or any of the eight employees to be offered and who shall accept
reinstatement, all available positions shall be distributed among such
employees, without discrimination against any employee because of
his union affiliation or activities, following a system of seniority to
such an extent as has heretofore been applied in the conduct of the
respondent's business. Those of the eight employees remaining after
such distribution, for whom no employment is immediately available,
and those of the eight who, in accordance with what has been set
forth above, are reinstated, not to their former or substantially
equivalent positions, but to positions for which they may be qualified,
shall be placed upon a preferential list prepared in accordance with
the principles set forth in the preceding sentence, and shall there-
after be reemployed in their former or substantially equivalent posi-
tions, as such employment becomes available and before other persons
are hired for such work.
We will also order the respondent to make John H. Earickson, Wil-
liam J. Embree, Matthew W. Gamble, Raymond Hoge, George W.
Hurst, Donald M. Keir, John J. O'Hara, and Harry A. Winters whole
for any loss of pay they have suffered by reason of their respective
KANSAS CITY POWER & LIGHT COMPANY , 1457
discharges' by payment to each of them of a sum equal to that which
he normally would have earned as wages from the date of his dis-
charge to the date of the offer of reinstatement, less his net earnings 20
during said period. In computing the back pay of these employees
the principles set forth in the preceding paragraph shall be applied in
determining the periods they would have been in the respondent's
employ and the wages they would have received.
Upon the basis of the foregoing findings of fact, and upon the
entire record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Local Union
B-412, and Association of Employees of the Kansas City Power &
Light Company are labor organizations, within the meaning of Sec-
tion 2 (5) of the Act.
2. Employes Representation Plan was a labor organization, within
the meaning of Section 2 (5) of the Act.
3. 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.
4. By dominating and interfering with the administration of Em-
ployes Representation Plan and contributing financial and other sup-
port to it, and by dominating and interfering with the formation and
administration of Association of Employees of the Kansas City Power
& Light Company, and contributing support to it, the respondent has
engaged in and is engaging in unfair labor practices, within the mean-
ing of Section 8 (2) of the Act.
5. By discriminating in regard to terms and conditions of employ-
ment of Clyde Acock, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (3) of the
Act.
6. By discriminating in regard to the hire and tenure of employment
of John H. Earickson, William J. Embree, Matthew W. Gamble,
Thomas H. Gregg, Raymond Hoge, George W. Hurst, Donald M. Keir,
Carl J. Nordstrom, John J. O'Hara, and Harry A. Winters, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (3) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act. -
20 See footnote 19, 8vpra.
1458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8. The respondent has not discriminated in regard to the hire and
tenure of employment or terms or conditions of employment of Ray-
mond V. Burns, Ross C. Cunningham, William O. Dennis, Elmo
Joseph, George Lopp, Boyd James (Cotton) Owens, and William W.
Rockwell, within the meaning of Section 8 (3) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the re-
spondent, Kansas.City Power & Light Company, Kansas City, Mis-
souri, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) In any manner dominating or interfering with the administra-
tion of Association of Employees of the Kansas City Power & Light
Company or with the formation or administration of any other labor
organization of its employees, and from contributing support to Asso-
ciation of Employees of the Kansas City Power & Light Company, or
any other labor organization of its employees;
(b) In any manner giving effect to its contracts, heretofore de-
scribed, with Association of Employees of the Kansas City Power &
Light Company or to any other contract or agreement which it may
have entered into with said Association in respect to rates of pay,
wages, hours of employment, or other conditions of work;
(c) Discouraging membership in International Brotherhood of
Electrical Workers, Local Union B-412, or any other labor organiza-
tion of its employees, by discharging, transferring to less favorable
positions, or refusing to reinstate any of its employees, or in any other
manner discriminating against its employees in regard to their hire
or tenure of employment or any term or condition of their
employment;
(d) Either directly or indirectly engaging in any manner of
espionage or surveillance, or engaging the services of any agency or
individuals for the purposes of, or in any other manner 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,
or to engage in concerted activities for the purposes of collective bar-
gaining and other mutual aid or protection.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Withdraw all recognition from Association of Employees of
the Kansas City Power & Light Company as a representative of its
employees for the purpose of dealing with the respondent concern-
KANSAS CITY POWER & LIGHT COMPANY 1459
ing grievances, labor disputes, wages, rates of pay, hours of employ-
ment, or conditions of work, and completely disestablish Association
of Employees of the Kansas City Power & Light Company as such
representative;
(b) Reimburse each of its employees who were members of Asso-
ciation of Employees of the Kansas City Power & Light Company
for all the dues and assessments, if any, which it has deducted from
their wages on behalf of Association of Employees of the Kansas
City Power & Light Company;
(c) Offer Clyde Acock an immediate transfer to his former posi-
tion in the Northeast plant, without prejudice to his seniority and
other rights and privileges;
(d) Offer Thomas H. Gregg and Carl J. Nordstrom immediate
and full reinstatement to their former or substantially equivalent po-
sitions, without prejudice to their seniority or other rights and
privileges ;
(e) Offer John H. Earickson, William J. Embree, Matthew W.
Gariible, Raymond Hoge, George W. Hurst, Donald M. Keir, John
J. O'Hara, and Harry A. Winters, immediate and full reinstatement,
without prejudice to their seniority and other rights and privileges,
in the manner set forth in the section entitled "Remedy" above, plac-
ing those employees for whom employment is not immediately avail-
able and those who, although reinstated, are reinstated not to their
former or substantially equivalent positions but to positions for
which they are qualified, upon a preferential list in the manner set
forth in said section, and thereafter, in said manner, offer them em-
ployment as it becomes available;
(f) Make whole Thomas H. Gregg and Carl J. Nordstrom for any
loss of pay that they may have suffered by reason of their respective
discharges by payment to each of them of a sum of money, equal to
the amount which he would normally have earned as wages during
the period from the date of his discharge to the date of the said
offer of reinstatement, less his net earnings 21 during said period;
deducting, however, from the amount otherwise due to each of the
said employees, monies received by said employee during said period
for work performed upon Federal, State, county, municipal, or other
work-relief projects; and pay over the amount, so deducted, to the
appropriate fiscal agency of the Federal, State, county, municipal,
or other government or governments which supplied the funds for
said work-relief projects;
(g) Make whole John H. Earickson, William J. Embree, Mat-
thew W. Gamble, Raymond Hoge, George W. Hurst, Donald M.
Keir, Jonn J. O'Hara, and Harry A. Winters for any loss of pay
21 See footnote 19, supra.
169134-39-vol. 12-93
1460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they,-or any of them, may have suffered by reason of their respective
discharges, by payment to them in the manner set forth in the section
entitled "Remedy" above; deducting, however, from the amount
otherwise due to each of the said employees, monies received by said
employee during said period for work performed upon Federal,
State, county, municipal, or other work-relief projects; and pay over
the amount, so deducted, to the appropriate fiscal agency of the
Federal, State, county, municipal, or other government or govern-
ments which supplied the funds for said work-relief projects;
(h) Immediately post notices in conspicuous places throughout its
plants, buildings, and other places of employment, and maintain
such notices for a period of at least sixty (60) consecutive days,
stating that the respondent will cease and desist in the manner set
forth in 1 (a), (b), (c), and (d), and that it will take the affirmative
action set forth in 2 (a), (b), (c), (d), (e), (f), and (g) of this
Order ;
(i) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in so far as it alleges that the respondent discriminated
against Raymond V. Burns, Ross C. Cunningham, William O. Den-
nis, Elmo Joseph, George Lopp, Boyd James (Cotton) Owens, and
William W. Rockwell in regard to their hire and tenure of employ-
ment or any term and condition of their employment.
AND IT IS FURTHER ORDERED that the petition for investigation and
certification of representatives annexed to the petition to intervene
filed by Association of Employees of the Kansas City Power & Light
Company be , and it hereby is, dismissed.