M & A Electric Power Cooperative, Inc.

National Labor Relations Board - Board Decisions

Aug 17, 1965

154 N.L.R.B. 540 (N.L.R.B. 1965)

540 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
M & A Electric Power Cooperative , Inc. and Local 702, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO. Cases
Nos. 14-CA-3283 and 14-CA-3378. August 17,1965
DECISION AND ORDER
On April 20 , 1965, Trial Examiner Owsley Vose issued his
Decision in the above -entitled proceeding , finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices within the meaning of the National Labor Relations Act, as
amended, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Ex-
aminer's Decision . He also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended that such allegations be dismissed. There-
after, the Respondent filed exceptions to the Trial Examiner's
Decision, insofar as violations were found therein, and a supporting
brief, and the General Counsel filed a brief in answer to Respondent's
exceptions. The Charging Party filed cross-exceptions to the Trial
Examiner's Decision , a brief in support thereof , and an answer to
Respondent 's exceptions.
Pursuant to the provisions of Section 3 (b) of the Act , the National
Labor Relations Board has delegated its powers in connection with
this case to a three -member panel [Members Fanning , Brown, and
Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision , the exceptions and briefs , and the entire record
in the case , and hereby adopts the findings , conclusions , and recom-
mendations of the Trial Examiner , with the following modification
The Trial Examiner concluded that Utley was not given the sched-
uled rate of pay for groundmen in retaliation for his union activities.
Respondent excepts, contending that this question was neither alleged
nor litigated . We find merit in this position . Accordingly, we do
not adopt this finding of the Trial Examiner and shall notify the
remedial order to accord with our conclusion.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
i We hereby correct the Trial Examiner 's inadvertent error in stating , in section
III, D, 2, b , of his Decision , that "Respondent put its newly acquired tractors and bushhogs
into use about May 1 , 1964." As pointed out by all the parties , the record indicates this
occurred during spring 1963.
154 NLRB No. 39.
M & A ELECTRIC POWER COOPERATIVE, INC. 541
its Order the Recommended Order of the Trial Examiner, as modi-
fied herein, and orders that the Respondent, M & A Electric Power
Cooperative, Inc., its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended
Order, as so modified :
1. Amend paragraph 2(c) by deleting the period and inserting a
comma following "... `The Remedy' " and adding thereto "as modi-
fied by this Decision and Order."
2. Amend the fourth indented paragraph of the Appendix by
deleting therefrom the words : "not being paid the scheduled rate for
groundmen during his".
IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby
is, dismissed insofar as it alleges unfair labor practices not found
herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed by the Charging Party on January 31, 1964, the General
Counsel on March 20, 1964, issued a complaint in Case No. 14-CA- 3283 alleging
that the Respondent, in violation of Section 8(a)(1) of the Act, had questioned
employees about union matters, threatened to contract out linework if the union
organizing campaign was successful , inquired of employees what wage increase
might be acceptable as an inducement to abandon their union activity, and had
prematurely announced future wage increases . Thereafter, the parties entered
into a settlement agreement , which was approved by the Regional Director on
April 27, 1964, wherein, without admitting engaging in any unfair labor practice,
the Respondent agreed to post a notice, in substantial part as follows:
WE WILL NOT interrogate our employees concerning the identity of mem-
bers or supporters of International Brotherhood of Electrical Workers,
AFL-CIO, Local 702, in a manner constituting interference , restraint, or
coercion in violation of Section 8(a)(1) of the Act.
WE WILL NOT inquire of our employees what wage increases might be
acceptable as an inducement to abandon their union activity.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce employees in the exercise of their rights to self-organization , to form,
join, or assist the above-named or any other labor organization, to bargain
collectively through representative of their own choosing , and to engage
in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection , or to refrain from any or all such activities.
The settlement agreement further provided that approval of the agreement should
constitute a withdrawal of the complaint and notice of hearing in Case No.
14-CA-3283.
Thereafter, pursuant to a charge filed by the Charging Party on June 3, 1964,
in Case No. 14-CA-3378, the General Counsel on August 24, 1964, (1) issued
an order revoking his approval of the prior settlement agreement , (2) issued an
order consolidating Cases Nos. 14-CA-3283 and 14-CA-3378, and (3) issued
a consolidated complaint and notice of hearing alleging that the Respondent
had engaged in unfair labor practices in violation of Section 8(a)(1), (3), and
(5) of the Act. With respect to the Respondent 's alleged violation of Section
8(a)(1) of the Act, the consolidated complaint , as amended at the hearing,
contained , in addition to the allegations previously set forth in the complaint in
Case No. 14-CA-3283 , allegations concerning further threats made by the Respond-
ent in March and April before the settlement agreement was executed. The
8(a)(3) violations alleged in the consolidated complaint as amended involve the
Respondent 's discontinuance of its "bushhogging " operation on May 22, 1964,
and the layoff of Kenneth Rushin and William Vinson in connection therewith,
and also the alleged discriminatory transfer on the same day of Lester Utley to
less desirable work. The violation of Section 8(a)(5) of the Act arises out of
542 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent's discontinuance on May 22, 1964, of its bushhogging operations
without prior negotiations with the Union. The Respondent filed an answer in
which it (1) alleged that it had complied with all the terms of the settlement
agreement in Case No. 14-CA-3283 and that the Regional Director's order
revoking his approval thereof was contrary to law, and (2) denied the com-
mission of any unfair labor practices.
The case was heard by Trial Examiner Owsley Vose at Poplar Bluff, Missouri,
on November 17 and 18, 1964. All parties appeared and were represented at
the hearing and were afforded a full opportunity to be heard, to examine and
cross-examine witnesses, and to present oral argument. Competent briefs have
been filed by all parties, which have been carefully considered.'
Upon the entire record and my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
1. THE NATURE OF THE RESPONDENT 'S BUSINESS
The Respondent is a Rural Electrification Administration financed generation
and transmission cooperative. It supplies electrical energy to four Rural Admin-
istration distribution cooperative's. In the course and conduct of its business the
Respondent annually purchases and has shipped to its facility from out-of-State
sources more than $50,000 worth of goods and materials. Its gross sales exceed
$500,000 a year. Upon these facts, I find, as the Respondent admits, that it
is engaged in commerce within the meaning of Section 2(6) and (7) of the
Act, and that it will effectuate the policies of the Act to assert jurisdiction herein.
II. THE LABOR ORGANIZATION INVOLVED
Local 702, International Brotherhood of Electrical Workers, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Preliminary statement; the Respondent 's contention that the Regional
Director erroneously set aside the settlement agreement
It is pertinent to consider at the outset the Respondent 's contention that it has
complied with the settlement agreement and that therefore the Regional Director
acted improperly in setting the settlement agreement aside and issuing the con-
solidated complaint including substantially the same allegations as were contained
in the withdrawn complaint in Case No. 14-CA-3283. It is settled that where
it appears either that the employer has not complied with a settlement agreement
or has engaged in other unfair labor practices since the settlement, the Regional
Director may set aside the agreement and proceed with a complaint which
covers both presettlement and postsettlement violations . The Wallace Corporation
v. N.L.R.B., 323 U.S. 248, 253-255; International Brotherhood of Teamsters,
Chauffeurs, Warehousemen & Helpers of America, General Drivers and Helpers,
Local No. 554 AFL-CIO (Clark Bros. Transfer Company), 116 NLRB 1891,
1898-1899, 1906-1908, enfd. 262 F. 2d 456, 461 (C.A.D.C.), and cases therein
cited; Larrance Tank Corporation, 94 NLRB 352, 353; Tompkins Motor Lines,
Inc., 142 NLRB 1, 3-4. In Lariance Tank it is stated that in determining whether
the employer has engaged in such other unfair labor practices after the settle-
ment, "the Board will not appraise a Respondent's postsettlement conduct in
the light of its conduct prior to the settlement" (supra, at 353). In view of this
language I will consider first whether the evidence of the Respondent's post-
settlement conduct, considered independently of its conduct prior to the settlement,
establishes that the Respondent engaged in any unfair labor practice.
As is more fully set forth below, on May 22, 1964, the Respondent discontinued
its bushhogging operations and terminated the two employees, Kenneth Rushin
and William Vinson, who were engaged in this work. Bushhogging is the name
given by the Respondent to the work of clearing its rights-of-way of brush and
the growth under its power lines by means of tractor-pulled and tractor-powered
cutting devices called bushhogs, which are like large rotary lawnmowers. The
1 The transcript is hereby corrected in accordance with stipulation of the parties
,executed on January 11, 1965, and filed with me on January 13, 1965.
M & A ELECTRIC POWER COOPERATIVE, INC. 543
Respondent admittedly discontinued its bushhogging work without consulting or
notifying the Charging Party, hereinafter called the Union, which was the duly
certified bargaining representatives of the Respondent 's employees.
The complaint alleges that the Respondent's discontinuance of its bushhogging
operations without notifying the Union in advance and giving the Union an
opportunity to bargain collectively about the discontinuance and related matter
violated Section 8(a)(5) of the Act. The complaint further alleges that the
Respondent's termination of Rushin and Vinson, the two bushhog operators,
violated Section 8(a)(3) of the Act. I find for the reasons set forth below
that the evidence concerning the Respondent's refusal to notify the Union con-
cerning its decision to discontinue bushhogging operations on May 22, 1964,
which was after the execution of the settlement agreement, establishes an unfair
labor practice within the meaning of Section 8(a)(5) of the Act, and that therefore
it is improper to go behind the settlement agreement and consider the Respondent's
conduct both before and after the settlement?
B. The Respondent's supervisory hierarchy
This case involves events occurring mainly in the first half of 1964 and it is
pertinent to set forth at the outset the supervisory capacities of the Respondent's
officials and supervisors during this period . James Owens is the general manager
in charge of the Respondent 's overall operations , Bruce Ellis is the Respondent's
office manager, and Calvin Robertson is the superintendent of the Respondent's
transmission department . Up until January 22, 1964, Robertson 's jurisdiction
extended also to the two right-of-way crews , the spray crew, and the bushhog
crew. On January 22, John Bailiff assumed Robertson 's responsibilities over the
right-of-way crews in addition to his duties as right-of-way procurement officer.
The immediate supervisor over the right-of-way crews was Elmer Longhibler,
' Since I find herein that the evidence of the Respondent ' s conduct after the settlement
agreement with respect to failing to bargain collectively with the Union about discontinu-
ing its bushhogging operations establishes a violation of Section 8(a)(5) of the Act,
it is perhaps unnecessary for me to consider what the situation would have been had the
Respondent 's layoff of the two bushhog operators on May 22, 1964, in alleged violation
of Section 8(a) (3) of the Act, been the only conduct subsequent to the settlement agree-
ment alleged to violate the Act. However , since the Board may disagree with my con-
clusion concerning the extent of the Respondent ' s duty to bargain collectively with the
Union about discontinuing bushhogging , I deem it appropriate to express my views on
this question.
I recognize that the much -cited dictum in the Larrance Tank case , to the effect that
the Board in determining whether independent unfair labor practices have occurred after
a settlement "will not appraise a Respondent 's postsettlement conduct in the light of its
conduct prior to the settlement ," apparently suggests that the Board in this case would
not go behind the settlement on the basis of the Section 8(a) (3) allegations of the com-
plaint , unless the violation could be established without considering matters occurring
prior to April 27, 1964, the date of the settlement agreement . However , in none of the
cases citing Larrance Tank which I have been able to find has the Board considered this
question Reason and logic, I believe , require that the language of Larrance be not
deemed applicable to presettlement conduct which is relied upon only to throw light
on postsettlement conduct which is alleged to be an unfair labor practice . In most
cases of discharges or other forms of union discrimination , the employer 's motive in the
discharge cannot be ascertained without considering the employer 's prior conduct. To
give the dictum of Larrance effect in discharge situations is to tie the Board ' s hands
with respect to determining whether violations of the Act have occurred in a very serious
area. Threats of discharge occurring after a settlement would be clearly cognizable
by the Board . Discharges themselves , which are even more destructive of employee rights
protected by the Act, should not be placed outside the Board ' s reach because of a me-
chanical application of the Larrance dictum.
In my opinion , it is inconsistent with the effectuation of the policies underlying the
Act, including the Board's policy with respect to settlement agreements, not to consider
all of the relevant and material evidence in passing upon allegations that Section 8(a) (3)
of the Act has been violated after a settlement agreement has been entered into. Ac-
cordingly , I conclude that it is proper in this case to consider acts and conduct of the
Respondent before the settlement which is revealing of the Respondent 's motives in sub-
sequently effecting the layoffs and the transfer here involved
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
who drove the tractor which pulled the tank for the spray crew. His title was
right-of-way maintenance foreman. At this time Longhibler was paid $2.90 per
hour. The highest paid man under him at this time received $2 per hour.
The Respondent concedes that all of the above-named individuals are super-
visors within the meaning of the Act. However, with respect to Foreman Long-
hibler, the Respondent, relying on Hy Plains Dressed Beef, Inc., 146 NLRB 1253,
and L. B. Woods, et al., d/b/a Breckenridge Gasoline Company, 127 NLRB 1462,
1463, and cases therein cited, argues that it should not be held responsible for his
actions in this case for the reason that Longhibler is only a minor supervisor
at most, and one who was permitted to vote in the election at the instance of
the Union. I find, upon the basis of the testimony of General Manager Owens
that Foreman Longhibler was directly in charge of both the spray crew and the
bushhog crew, saw to it that both crews did their work properly, and had the
authority to recommend hiring and firing of the men under him, that Foreman
Longhibler was a supervisor within the meaning of Section 2(11) of the Act.
Nevertheless, since the facts of this case appear to bring it within the rule of
Hy Plains and related cases cited by the Respondent, I conclude that the Respond-
ent should not be held responsible for Longhibler's conduct under the circumstances
of this case. Accordingly, no findings will be made that Longhibler's conduct
constituted independent unfair labor practices.
C. Sequence of events
1. The employees' dissatisfaction with their wages; the decision
to affiliate with the Union
In November 1963 a group of employees from the generating plant and the
storeroom, including Donald Williams, spoke to General Manager Owens about
a wage increase. Owens declared that such matters were not up to him, but he
promised to contact the Respondent's board of directors. Owens placed the
matter before the board of directors at the December meeting. However, the
board of directors was unable to reach a decision with respect to all of the
classifications involved and deferred final action regarding wages to the January
meeting. General Manager Owens subsequently informed Williams that the
board of directors was going to consider the question again in January and
that he would know the decision of the board about January 21. About January 1
Owens told another employee, Lester Utley, that he would be getting a wage
increase, but that Owens did not know the amount of the increase.
About this same time Utley and William Vinson, another of the Respondent's
employees, attended a Teamsters Union meeting in Cape Girardeau, Missouri.
As a result of attending this meeting, Utley and Vinson were put in touch with
Donald Keith, assistant business manager of Local 702, the Union in this case.
Keith made arrangements with Vinson to hold a meeting of interested employees
of the Respondent on the evening of January 8, 1964, at the Carpenters Labor
Temple in Poplar Bluff. Approximately 16 employees of the Respondent attended
this meeting including Vinson, Utley, and Kenneth Rushin. All those present
signed membership cards for the Union. Additional cards for distribution to
other employees were given by Keith to Vinson, Utley, Rushin, and John Carroll.
Keith, however, instructed the employees to keep their organizational efforts quiet.
Keith utilized Vinson as his principal contact man among the employees. If
Vinson were not available, Keith communicated with the employees through
Utley.
Foreman Longhibler had not attended the January 8 meeting at the Carpenters
Labor Temple. After Utley and Vinson obtained the membership cards they
left the meeting and visited Longhibler at his home. When Utley talked to
Longhibler about signing a card, Longhibler, after stating, "We sure need some-
thing," signed a card?
s Although the above evidence indicates that Longhibler was favorably disposed toward
the union movement at this time , the evidence discussed hereinafter as to Longhibler's
subsequent conduct leaves no doubt that Longhibler later had a change of heart regard-
ing the Union.
M & A ELECTRIC POWER COOPERATIVE, INC. 545
2. Superintendent Robertson 's talk with groups of employees
on January 22 and 27
Superintendent Robertson spoke to almost all of the transmission department
employees in a group on January 22, 1964.4 According to Lester Utley's
credited and undenied testimony, Robertson declared on this occasion that "Mr.
Owens had heard of union activities downtown and wants to know who instigated
it and who is for it."
Superintendent Robertson had another talk with a group of line employees and
others on January 27, 1964. Although the right-of-way clearing crews were
no longer his responsibility, Robertson included Rushin and Vinson, the two
members of the bushhog crew, in the group. According to Rushin's testimony,
Robertson stated that "Mr. Owens said there was union talk going around and
he heard it started in the right-of-way department and he said if it come to it,
the cost got too high, that he would contract out the right-of-way work." 5
3. The Respondent's announcement of the pay increase
on January 24
The Respondent's board of directors at its January 21 meeting voted on a
schedule of wage increases to become effective in three stages; the first increase
was made retroactive to January 1, 1964, and the second and third were to
become effective on April 1 and July 1, 1964, respectively. The record does
not reveal the amount of the increase except as to one of the Respondent's
groundmen, Lester Utley, who was raised as of January 1 from $1.50 an hour
to $1.75 per hour, an increase of over 15 percent.
On January 24, 1964, the Respondent notified the employees that they were
being given an increase in their wages retroactive to January 1. General Manager
Owens testified that, by error, the employees were not informed that the Respond-
ent's board of directors had also decided on further small wage increases to be
effective April 1 and July 1, 1964. According to Owens, he did not discover
the error until January 27, at which time he requested that notices be prepared
informing the employees of the further increases in wages which they were to
receive on April 1 and July 1.
4. The Union's request for recognition; the filing of the
petition for certification and the charge
On January 29 or 30 the Union mailed a letter to the Respondent requesting
it to recognize the Union as bargaining agent for the Respondent's maintenance,
construction, and operating employees. This letter was received by the Respond-
ent on January 30 or 31.
On January 31 the Union simultaneously filed with the Board an unfair labor
practice charge and a petition for certification as bargaining representative of
the employees referred to in its letter. The charge filed with the Board contained
'Comparing Utley's testimony on cross -examination with that on direct , and upon
my consideration of the record as a whole , I am convinced that the reporter misheard
Utley's testimony on direct and that the date "January 27" appearing on line 2 of
page 82 should be "January 22".
6 Rushin's testimony in this regard is fully corroborated by that of Vinson. Through-
out his testimony Rushin appeared to be carefully trying not to overstate matters.
Robertson denied having said that the organizing activities started in the right-of-way
crew. Robertson 's version of the rest of the conversation is as follows : "I said , 'Well,
it is possible if the wages get so high from union activity that we could hire our right-
of-way spraying done by contract , it is possible that the company might hire it done
through contracting because we have done that in the past when there was no union
activity.' " Vinson denied that Robertson made any mention of this occasion about the
Respondent having contracted out right-of-way work when no union was in the picture.
Robertson is implicated in conduct evincing hostility to the Union by the testimony
of five employees , Rushin, Vinson , Utley, Carroll, and Cox. The latter two are not
directly involved in the outcome of the case . Their testimony , in my opinion , had the
ring of truth to it. Robertson 's partial denials did not convince me. Robertson on the
stand persisted in giving justifications for his answer , as though he realized that his
simple answer did not carry conviction . Weighing the conflicting testimony in this case,
I conclude that the testimony of Rushin and Vinson regarding this incident is entitled
to credit.
206-446-66-vol. 151-3 6
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
allegations based upon the Respondent's action on January 24, 1964, in announc-
ing a substantial retroactive wage increase, and on Superintendent Robertson's
conduct on January 27, discussed above.
5. Events of January 31
About 1 p.m. on January 31, Office Manager Bruce Ellis , had a conversation
with one of his subordinates , Donald Williams , about the Union. Ellis asked
Williams "if [ he] knew what was the trouble among the men . and if [he]
knew who it was that was organizing ." William answered that he "did but that he
didn't care to tell him because [ he] was a fairly new man and that [he] didn't
want to interfere with something that a man wanted that had been there for several
years."
Later that afternoon General Manager Owens summoned Williams to his
office. There, after asking Williams if he knew what the trouble was, Owens
mentioned that Ellis had told him that Williams "knew who had started the union
activities ." Williams demurred at revealing the identity of the instigators of the
Union, saying that he "didn 't feel that it was up to [him] to say who it was."
Owens went on to say that "if he knew who was dissatisfied , the thing to do was
. to try to satisfy" him.6
About 4 p.m. on January 31 Superintendent Robertson , in a talk to the
transmission department employees , including bushhog operators Rushin and
Vinson, told the group that he had received a telephone call from Mr. Owens
and that they had received official notice . of the union interest . and
wanted to know . . . what the Union could give us that the Company could not
and also if we were brought up to the union scale, if we would forget about the
Union. " William Vinson , speaking for the men , replied that "the company
couldn 't give us anything that they couldn't take away." Whereupon , Robertson,
while the men were still present , called Owens on the telephone , told Owens that
he had put Owens' suggestion before the men, and "that we were not interested,
that we preferred the union." 7
6. The second notice of a wage increase issued on February 4
On February 1, after having received a copy of the unfair labor practice charge
from the Board, General Manager Owens arranged to hold up the release of the
notice of the April. 1 and July 1 wage increase, which had been erroneously
omitted from the January 24 notice, pending the receipt of advice from his
attorney. On February 3 Owens consulted his attorney in St. Louis.
After receiving the advice of counsel, Owens, on February 4, 1964, issued a
notice like the following to each of the employees:
M & A Electric Power Cooperative
P. O. Box 693
Poplar Bluff, Missouri
Employee Notice
February 4, 1964
Name: William Vinson
On or about January 24, 1964, you were notified that as a result of
action taken by the Board of Directors at its January 21 meeting, your rate
would be increased effective January 1, 1964.
6 The foregoing finding is based upon Williams' uncontradicted testimony. Ellis was
not called as a witness. Owens did not deny Williams' testimony regarding his question-
ing of Williams.
7 The foregoing finding is based on the testimony of William Vinson It is corroborated
by that of Rushin and Utley. Robertson admitted that he talked to the men on this
occasion, but denied making a telephone call to Owens. Robertson testified in explana-
tion that he had talked to Owens previously in his office and that Owens had asked him
"what was wrong, why were they upset what was their disagreement " Robertson fur-
ther testified that he "didn't ask them how much money it would take to satisfy them
because the-Board had already gave them a raise at that time." Owens denied that he
had received a telephone call from Robertson at anytime regarding this subject. For
reasons indicated above, I credit the testimony of Vinson, Rushin, and Utley regarding
this incident. Even if no telephone call were made during this incident, this would not
alter the crucial fact that Robertson in effect made a veiled offer of a wage increase
to induce the employees to abandon the Union.
M & A ELECTRIC POWER COOPERATIVE, INC. 547
Your Company omitted this notice by error, the fact that at this meeting,
the Board of Directors voted that as of April 1, 1964, your rate would be
increased to 1.80 hr., and as of July 1, 1964, to 1.85 hr This was in
keeping with the Company's long-standing policy of maintaining its wage
rates in line with wage rates paid by other similarly situated companies in
the area.
Section 7 of the National Labor Relations Act provides that employees
have the right to self organization; to form, join, or assist labor organiza-
tions; to bargain collectively through representatives of their own choosing;
and to engage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, and shall also have the right
to refrain from any or all of such activities except to the extent that such
right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8(a)(3)
of said act.
The Company did not intend by its action of January 24, 1964, and does
not intend by this Notice, or by the action taken by the Board of Directors
at its meeting, to interfere with your rights as outlined above.
Sincerely yours,
James W. Owens,
General Manager.
7. The Respondent's conduct in the preelection period
The hearing upon the.Union's petition for certification was held on February 26.
A Decision and Direction of Election was issued by the Regional Director on
March 20. The election was held on April 17. The Union won the election
18 to 12 and was certified as the bargaining representative of the Respondent's
maintenance, construction, and operating employees on April 27.
In the preelection period the Respondent sent at least two letters to its employees
and their wives dealing with working conditions at the Respondent's establishment
and some of the consequences of unionization. The text of the Respondent's
March 11, 1964, letter is as follows:
I know that all of you are interested in wages, and I think M & A's
policy is a very liberal one. Our policy is to pay as much as the average
of other companies in the area for comparable work. This has meant
regular increases for you each year. Our fringe benefits are better than
other companies. You haven't had to pay dues to get them. We will con-
tinue that policy.
When a new employee is hired, his work and wages are reviewed periodi-
cally, and he is increased as he gets acquainted with the job until he
reaches the top of the scale for his job.
We also have a policy of filling vacancies in the higher-paying jobs by
promoting employees. This has enabled our employees to get better jobs
as our business expanded and as vacancies occurred.
How does your pay compare with others in Poplar Bluffs I think it's
pretty good. Can you get a higher-paying job somewhere else?
No Union was necessary to get us to adopt these policies, and none is
necessary to make us continue them. To pay a Union for this is a waste
of your money.
Sincerely yours,
M & A ELECTRIC POWER COOPERATIVE
A letter sent to the employees on March 26, 1964, reads as follows:
This letter will be devoted to job security. Unions are always talking
about job security, and they claim a Union contract provides it. If they'
are talking about following seniority in layoffs, it isn't important to us here
at M & A, because we don't have layoffs. Our work is steady. If we had
layoffs, we would follow seniority.
Steady work is the real job security. The Union does not provide that,
and may actually prevent the employer from providing it by strikes, by
picketing, and in other ways. If the Union calls a strike, the strikers lose
pay. If the Union picketed here for any reason, perhaps a dispute with
Ozark Border or with one of our suppliers, and you employees were mem-
bers, you would have to stop work and lose pay.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If the wages the Union demanded for some work were so high that an
outside contractor came in and offered to do it for less, our employees would
lose work.
These are all things that have happened, not to us but to some companies.
You know about them if you read the newspapers.
Do you want to pay dues to a Union to get that to happen here? Is that
job security?
Sincerely yours,
M & A ELECTRIC POWER COOPERATIVE
Around the middle of March, Foreman Longhibler went to the home of
Kenneth Rushm, one of his subordinates on the bushhog crew, and engaged him
in a discussion about the Union. Among other things Longhibler stated, accord-
ing to Rushin's undenied testimony, that "we had better vote this union out or
Mr. Owens would contract the right-of-way work out, and if we voted against
the union, and even if it still goes through that Mr. Owens still would take care
of us, see that we still stayed with the company . . . If we voted for the union
and it went through, he would not, he couldn't say what would happen." Rushin
nevertheless informed Longhibler that he was for the Union.
On March 26, as Richard Cox was in the Gibson substation working, Super-
intendent Robertson asked him "what did [he] mean by wanting the Union."
When Cox failed to answer, Robertson invited him to sit in his car with him.
After Cox joined Robertson in his car, Robertson engaged him in a lengthy
conversation about the Union. Among other things, as Cox credibly testified,
Robertson told Cox that Lester Utley "was the only other man down there in
the substation at the time that was for the union . most all of the other
fellows had changed their minds and view on the union at that time." 8 Cox's
testimony regarding this conversation with Robertson continued as follows:
He said in the course of the conversation that if the union was to get
in, he was confident that it wasn't, but if it was to get in he would have
to be on us and ride herd on us a lot more. He said that he had to do
all the things at the time he didn't want to do, and one of them was this
discharging of Jerry Ward, and he said that he was afraid when all of this
blew over that he would have to get rid of Les (Utley) and Bill (Vinson)
and anybody else, and he let that ride there.
He said that he was surprised that I was supporting the union because it
would hurt me and Buck Lindley, the two apprentice linemen, the most
because he was afraid that he wouldn't be able to hire and make advance-
ments as he wanted to and that the union could hire journeymen over us .9
The Respondent had ordered a new boomtruck in January 1964 to use in place
of the old boomtruck . It was to be especially equipped according to the Respond-
ent's specifications, including a posthole digger, which the old truck lacked.
Unlike the old truck, all the accessories on the new truck were hydraulically
activated, rendering it less physically taxing for the men to operate. The new
boomtruck figured in various conversations between the Respondent's supervisors
and the men even before it was ready for delivery.
$ For reasons more fully stated elsewhere, I do not credit Robertson 's denial of Cox's
testimony in this regard.
6 When first asked about his conversation with Cox on this occasion , Robertson replied,
"Well, we were talking about the union activity and I tried to stress on him the good
points of the Company . . I felt we didn ' t need help from an outside source to
help our employees and I told him our good points." While denying that he had said
that he was afraid that he was going to have to fire Utley and Vinson , Robertson admitted
that he had brought up the subject of firing Jerry Ward. Robertson also admitted
saying to Cox that a union might interfere with the Respondent 's control over promotions
which might prejudice Cox's advancement . Except with respect to Cox's testimony con-
cerning Robertson 's remarks about Utley and Vinson , the versions of the two witnesses
vary mainly in the matter of emphasis . Cox impressed me as being a very reliable witness.
Robertson , as I have indicated , has shown a tendency to stretch the truth a bit in the
crucial aspects of his testimony . Under all the circumstances I credit Cox 's testimony.
M & A ELECTRIC POWER COOPERATIVE, IN C. 549
About the end of March, General Manager Owens spoke to John Carroll, the
groundman on one of the Respondent's line crews, about the new truck. After
commenting that he had heard that Carroll was mechanically inclined, Owens asked
Carroll if he was interested in driving the new truck the Respondent was buying.
Carroll replied that he thought that the Respondent had no operator for it. In
response, Owens declared, "We are going to leave Les on the old truck and
we are going to get another man for the new truck." 10
Later, but before the election, Foreman Longhibler also engaged Carroll in
a conversation about the new truck. According to Carroll's credited and undenied
testimony,
He asked me out in front of the building one day how I was going to
vote and I told him that I thought I just would go along with the majority
of them because I was a new boy there and I wanted to do what the rest
thought was right, and he said, "Well, I think if you go along with us and
vote against the union you will get the new truck."
A few days before the election, Utley, the principal driver at that time of the
Respondent's old boomtruck, spoke to General Manager Owens about the new
truck in the presence of Superintendent Robertson and Crew Leader Herschel
Thornton. When Utley expressed his concern that he might be considered as
the operator for the new truck, Owens indicated to Utley that there was a basis
for his concern, stating that he did want a new man for the new truck. At the
same time, however, Owens remarked, as Robertson testified, "I am not taking
you off of the old truck."
The election was held on April 17. Utley was the observer for the Union
As stated above, 18 out of the 30 eligible employees voted in favor of the Union.
After the election, Right-of-Way Supervisor Bailiff and Superintendent Robert-
son again brought up the subject of the new truck. This was shortly after the
new truck arrived on May 16. Regarding this incident Carroll credibly testified
as follows:
I don't remember how the conversation got started. He (Bailiff) said
something about did I see what I missed by voting the wrong way, you know,
in the union, and Calvin (Robertson) said, "Well, he more or less just
turned the job down himself on account he didn't want to have any hard
feelings with the boys. . . .I'll
8. The layoff of Rushin and Vinson; the transfer of Utley to the spray crew
As stated above, the election was held on April 17. A majority of the
Respondent's employees selected the Union as their bargaining representative.
On April 21 the Respondent signed the settlement agreement involving the allega-
tions of violations of Section 8(a)(1) of the Act raised in Case No. 14-CA-3283.
10 While Owens admitted questioning Carroll as to whether he would be interested in
driving the new truck, he denied discussing Utley with him. However, as appears be-
low, in a subsequent discussion with Utley about the boomtrucks, Owens told Utley
directly "I'm not taking you off the old truck " This Is Superintendent Robertson's
testimony. In view of this testimony I think it very likely that Owens also mentioned
it to Carroll that he was leaving Utley on the old truck. I credit Carroll's testimony
quoted above.
n Both Bailiff and Robertson denied having such a conversation with Carroll and, in
view of these denials, the Respondent strenuously objects to my placing any credence in
Carroll's testimony above quoted . The Respondent points out that Carroll was unable to
recall this incident when originally questioned on direct examination by the General
Counsel and also that Carroll failed to include this incident in his statement given to
a Board investigator in June. I have carefully considered the Respondent 's arguments
in this regard , but I am convinced that Carroll was telling the truth . Carroll's testi-
mony is plausible on its face ; Carroll admittedly had been asked by General Manager
Owens before the election about his interest in driving the new boomtruck ; and it is con-
sistent with Robertson 's general attitude of opposition to the Union for him to have
made the remark attributed to him by Carroll Under all the circumstances , I credit
Carroll's testimony about the remarks made by both Bailiff and Robertson.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The settlement agreement was approved by the Regional Director on April 27,
the same day that the certification was issued.
On May 22, 1964, before the Union had communicated with the Respondent
about the commencement of bargaining negotiations, the Respondent abruptly
discontinued its bushhogging operations, terminating the two employees, Rushin
and Vinson, who were engaged in this operation, and the same day transferred
Utley from his position as groundman on Herschel Thornton's line crew to a
job as sprayer on the spray crew.
On May 22, Rushin and Vinson were operating their bushhogs on the Patterson
to Garwood line. At this time they had completed a little over half of this
line. When Rushin and Vinson reported back that afternoon they were given
the following memorandum:
May 22, 1964
MEMORANDUM TO KENNETH RUSHIN AND BILL VINSON:
Our right of way Bushhogging program has moved along to the point
where we have bushhogged all of our right of way that we can conveniently
work. The right of way remaining is right of way that is practically impos-
sible to bushhog successfully.
Therefore, we are closing down our Bushhogging program for an extended
period of time, and do not have vacancies elsewhere in our crews to place you.
This is to advise you that as of the end of your tour of duty today, May 22,
1964, you will be laid off.
We are attaching your check for work performed through the above date.
We are also attaching your check for two weeks vacation pay. This two
weeks vacation will constitute your notice of this layoff.
(S) James W. Owens,
General Manager.
This memorandum constituted the first notice to Rushin and Vinson that they
were being laid off. Admittedly the Union was not notified by the Respondent of
the prospective discontinuance of bushhogging operations. No bushhogging work
has, been done since the layoff of Rushin and Vinson.
Utley was notified of his transfer in the following memorandum-
May 22, 1964
MEMORANDUM TO LESTER UTLEY
Elmer Longhibler has been with this cooperative for a number of years,
and during that time has operated various pieces of equipment for us.
During that time, he demonstrated his ability and efficiency in operation of
equipment, and we are placing him in charge of the new boomtruck the
cooperative has purchased.
In order to do this, it will mean that he will have to be moved into the
spot on the transmission crew which you are now occupying. We do not
have room on this crew for an extra man, and are accordingly transferring
you to the right-of-way spray crew.
This transfer will become effective Monday morning, May 25, 1964.
James W. Owens,
General Manager.
At the time of this transfer Utley was given a 5-cent-per-hour raise, bringing
his wage to $1.80 per hour, the newly scheduled rate of pay for laborers on the
right-of-way spray crew.
Despite the 5-cent wage increase, Utley regarded that transfer from the job of
groundman on a line crew to that of laborer on the spray crew as harsh measure.
As Utley explained, the job as laborer on the spray crew involved spraying with
a foul-smelling 2-4-D solution mixed with diesel oil all day long, a solution which
ate up his shoe leather. Erv Aldridge, who had been made foreman of the
spray crew at the time of Longhibler's transfer to the new boomtruck, was a
difficult man to work under, in Utley's opinion. Utley had gotten along fine with
Thornton, his crew leader on the line crew. As groundman on a line crew
Utley had an opportunity to observe and learn something of the work of the
linemen, who were paid as much as $3 per hour. His opportunities for promo-
tion to the job of apprentice lineman, under the Respondent's promotion policy,
would appear to be much greater on the line crew than on the spray crew. On
the spray crew Utley had no opportunity to drive the truck, which he regarded
as a desirable part of his work as a groundman.
M & A ELECTRIC POWER COOPERATIVE, INC. 551
With respect to pay, the job of laborer on the spray crew, at $1.80 per hour,
was definitely inferior to the groundman job, which under the Respondent's
schedule called for $2 20 per hour at the time of his transfer.12
Upon the facts I find that the job of laborer on the spray crew to which
Utley was transferred was less desirable and inferior in various respects to his
former position as groundman, and that the Respondent's tranfer of Utley to
this job constituted discrimination against him. Whether this discrimination was
for reasons prohibited by the Act will be considered hereinafter.
9. The Union discusses the layoff with Owens; bargaining
negotiations commence
A day or two after Rushin was laid off he notified Assistant Business Manager
Keith of the Union of his termination. As a result Keith went to the Respondent's
office on May 25 and discussed with Owens the termination of Rushm and Vinson.
Owens explained that the bushhogging work which the two men had been doing
was completed for the time being, and that the Company, having no further
need for the crew, had to lay the two men off. Several days later Keith again
spoke with Owens about the layoffs, this time in the presence of Vinson. Owens
repeated the explanation which he had given the first time Keith conferred with
him.
On May 26, the Union mailed a proposed contract to the Respondent for
its consideration. Commencing on July 2, the Respondent and the Union have
held nine bargaining sessions. Some concessions have been made by both
parties. There is no contention made in this case that the Respondent's bargain-
ing with the Union on and after July 2 did not fulfill its obligations under
Section 8(a)(5) of the Act.
Early in November 1964 the Respondent hired two employees to perform
mechanical repair work on one of the Respondent's diesel engines in the power-
plant. The two men hired had had no professional experience working on engines,
but they had worked on their own cars and trucks and those of relatives. These
two temporary mechanics were paid $1.50 per hour. Although the Respondent
considered calling Rushin and Vinson for this work, it decided not to do so for
reasons which are more fully explained below.
D. The contentions of the patties; conclusions
1. The Respondent 's violation of Section 8(a)(5) of the Act
As found above , on May 22 the Respondent discontinued bushhogging work,
laid off Rushin and Vinson, the two members of the bushhog crew, and on the
same day transferred Utley from the job of groundman on a line crew to the job
of laborer on the spray crew. Admittedly, these actions were taken without
notifying the Union in advance , and without any prior bargaining about such
decisions and related matters. The Board had held, with Supreme Court approval,
that the employer 's decision to contract out work of bargaining unit employees,
even though for economic reasons, is "a matter within the statutory phrase `other
terms and conditions of employment ' and is a mandatory subject of collective
bargaining within the meaning of Section 8(a)(5) of the Act ." Town & Country
Manufacturing Company , Inc., and Town & Country Sales Company , Inc., 136
NLRB 1022, 1027, enfd . 316 F. 2d 846 (C A. 5), Fibreboard Paper Products
Corpoiation , 138 NLRB 550 , enfd. 322 F . 2d 411 (C.A.D.C.), affd. 379 U.S. 203,
208. In my opinion the decision to discontinue certain operations in which unit
employees are engaged is similarly within the scope of mandatory collective
bargaining . The Board has so held . In Winn-Dixie Stores, Inc., 147 NLRB 788,
the Board states as follows:
An employer is under a duty to bargain with the chosen representative of
his employees concerning matters affecting their wages, hours , and terms
and conditions of employment and cannot unilaterally change established
employment conditions without bargaining , regardless of the existence or
"For some undisclosed reason Utley was not paid the $2 20 rate which the Respond-
ent's board of directors adopted for groundmen at the meeting on January 21, effective
January 1 (see General Manager Owens' testimony that as a result of Utley's transfer
he received a 5-cent-per-hour increase in wages and that Utley was receiving $1.85 per
hour at the time of the hearing).
552 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nonexistence of a collective-bargaining agreement. Thus, in the instant
case, the Respondent was not justified in completely disregarding that duty
regardless-of what may have appeared to it to be the economic desirability
of terminating the cheese packaging operation. The Union had a statutory
right to be notified in advance of the proposed action and to be given an
opportunity, if it so desired, to consult and negotiate with the Respondent
about the need for elimination of unit jobs and the possibility of alternative
approaches that might avoid such action. Failing other resolution, the
Union had a further right to bargain about steps that might be taken to
minimize the effects upon employees of the proposed action.
The Board held in the Winn-Dixie case that the "Respondent's failure to notify,
consult with, or bargain with the Union about the elimination of the cheese
packaging operation" violated Section 8(a)(5) of the Act See N.L.R.B. v.
Exchange Parts Co., Rebuilders Service Company, and Southwest Shoe Exchange
Company, 339 F. 2d 829, 830-831 (C.A. 5).
Aside from the question of the decision to discontinue bushhogging operations,
numerous questions remained concerning the steps to be taken to minimize the
impact of this decision on the affected employees, such as the effect to be given
to seniority, upon what basis was seniority to be figured, and the possibility of
transfers to other operations which the affected employees could perform. The
collective-bargaining process is particularly well-suited to the amicable resolution
of such questions. Upon all of the facts of the case, I conclude that the Respond-
ent violated Section 8(a)(5) of the Act by failing to notify the Union in advance
and to give the Union an opportunity, if it desired to do so, to bargain collectively
both about the decision to make its contemplated operational change and about the
manner in which it was to be accomplished 13 I further conclude that in order to
remedy this refusal to bargain it is essential that Rushin and Vinson be reinstated
to their former jobs as bushhog operators, with backpay, and that the Respondent,
if it thereafter proposes to discontinue bushhogging, notify the Union of the fact,
and bargain collectively with the Union about such discontinuance, if the Union
requests it. The Supreme Court in the Fibreboard case fully upheld the Board's
power to order the reinstatement of employees with backpay to remedy a refusal to
bargain (379 U.S. 203, 215-217).
2. The Respondent's violations of Section 8(a)(3) of the Act
a. Introduction
Preliminarily, it should be stated that Utley and Vinson were the two original
instigators of the union movement among the Respondent's employees, having
traveled to Cape Girardeau to obtain information about organizing the employees.
At the time of the first union meeting on January 8, they revealed their interest
in the Union to Foreman Longhibler when they solicited him to sign a union card.
Vinson was the employee who acted as spokesman for the group which turned
down Superintendent Robertson's proposal that the employees accept a wage in-
crease and drop the Union. That higher officials became aware of Utley's and
Vinson's leading roles in the union movement is indicated by Cox's credited testi-
mony that Superintendent Robertson told him on March 26 "that he was afraid
when all of this blew over that he would have to get rid of Les and Bill." As
stated above, Utley acted as the Union's observer in the election.
Rushin was one of the four employees given cards at the January 8 meeting
which were to be used to obtain additional signatures for the Union (John Carroll
was the fourth such employee). Although Rushin was not under Superintendent
Robertson's supervision, Rushin, and also Vinson, was included in the groups
talked to by Robertson on January 27 and 31 in an effort to induce them to
abandon the Union. As indicated above, Rushin worked directly under Foreman
Longhibler. In March Foreman Longhibler went to Rushin's house and threat-
ened that the Respondent would contract out the right-of-way work if the em-
ployees voted the Union in. At the same time he sought to reassure Rushin that
the Respondent would take care of him if he voted against the Union in the
election. Rushin indicated to Linghibler on this occasion that he was going to
stick to the Union.
In my opinion the opportunity given by the Respondent to Assistant Business Man-
ager Keith of the Union to discuss the change after it had been put into effect is no
substitute for genuine collective bargaining before the change is made. The Respond-
ent's contention in this regard is rejected.
M & A ELECTRIC POWER COOPERATIVE, INC. 553
From the foregoing discussion it appears not only that the Respondent's actions
on May 22 affected three of the Union's four most active supporters but that the
Respondent had an ample opportunity to, and I find, did acquire knowledge of
this fact.14
b. The layoff of Vinson and Rushin on May 22
As noted above, the Respondent contends that the layoffs of the two bushhog
operators, Vinson and Rushin, resulted from its determination that there were no
further rights-of-way which it was feasible to clear by means of bushhogging, and
they were let go because there was no vacancies in any of its other operations.
The General Counsel contends that the bushhoggmg operations were discontinued
as a pretext for getting rid of two active union supporters.
In view of the nature of the Respondent's defense it may be helpful at the out-
set to discuss the Respondent's right-of-way clearing problem in general. the two
methods which it uses to handle the problem, and other related matters. The
Respondent has a total of 505 miles of right-of-way, of which some 50 to 60
peicent requires treatment of some sort to keep the brush from growing up into
the high tension wires and disrupting service. Taking a 55-percent figure, the
Respondent thus has about 280 miles of right-of-way needing attention. The
right-of-way is 100 feet wide.
General Manager Owens testified that the Respondent's basic brush control
program calls for chemical application by spray at the roots and lower portions of
all saplings and trees growing on the right-of-way. The kill by spray is not 100
percent effective and there is a continuing need for treatment in order to kill the
brush that has not been taken care of by the previous application and to take
care of the seedlings which are sown by seed. When the Respondent gets behind
in its spray treatment it uses bushhogging to catch up. Prior to May 1963, the
Respondent had not done any bushhogging since 1958. In January 1963 the Re-
spondent acquired new tractors and bushhogs for a renewal of bushhogging.
Under the spray method of controlling brush the entire right-of-way is covered
by the spray crew. The spray crew consists of a spray foreman and two spray
laborers. The foreman drives a tractor hauling a tank of 2-4-D solution and
pumps for building up the spray pressure. The laborers handle sprays at the
end of hoses several hundred feet in length which are connected to the tank.
Because of the freedom of the spray laborers to move about the 100-foot right-of-
way in a wide arc it is possible for the spray crews to treat very hilly and rocky
areas which cannot be bushhogged. Spraying is a very slow operation because it
is all done on foot and it is necessary to treat individually each piece of harmful
growth on the right-of-way, even little oak twigs with but three leaves.15
Records kept by the Respondent covering its spraying operations in 1963 show
that the spray crew covered only 1.6989 acres each day it worked in 1963, on an
average. Expressed in terms of lineal miles of right-of-way, the spray crew man-
aged to cover only .14 of a mile each day it worked. The Respondent's cost per
acre for spraying in 1963 was $63.59.
Under the bushhog system of brush clearing, a tractor driver pulls a bushhog
over the right-of-way. The bushhog, which is powered by the tractor, cuts a 5-foot
swath. The bushhog will cut any growth which the tractor can ride down. How-
ever, the growth which is cut is not killed and many new shoots crop up after
the old shoots have been cut. In very hilly terrain or in very rocky terrain the
bushhogs cannot be used. Nor can bushhogs be used close to fence rows which
sometimes cross or parallel the Respondent's rights-of-way.
The Respondent put its newly acquired tractors and bushhogs into use about
May 1, 1964. In the last 8 months of 1963, the bushhog crew covered an average
of 5.0 acres of right-of-way per day each day the crew worked, or about .41 lineal
"'I have considered the question whether, in view of my findings that the Respondent
is not to be held responsible for Longhibler 's threats and questioning , it is reasonable
to impute to the Respondent Longhibler 's knowledge of Rushin ' s union sympathies.
Under all the circumstances , including Longhibler 's demonstrated bias against the Union
(except at the very beginning ), I conclude that it is reasonable to infer that Longhibler
would pass along to management any information of this nature which he acquired.
Furthermore , Superintendent Robertson 's inclusion of Rushin in the groups spoken to by
him on January 27 and 31, although Rushin was not under Robertson's supervision,
suggests that Robertson at least suspected that Rushin was one of the union supporters
15 The spray laborers do not treat weeds which reseed themselves each year, only
growth which ultimately may reach the Respondent 's transmission lines which are 22
feet above the ground at their lowest point. At many other points they are much higher.
554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
miles per day. Thus the bushhog crew was able to cover almost 3 times as much
right-of-way per day worked in 1963 as was the spray crew. The cost per acre
for bushhogging in 1963 was $7.66 per acre, or less than one-eighth of the cost
of spraying. `
Right-of-way Supervisor Bailiff testified that it was his decision to lay off Vinson
and Rushin. Bailiff's testimony continues as follows "After checking the right-of-
way on the system I told Mr. Owens that the bushhogging program had caught
up with what we needed to have done and it was then that we decided that we
would terminate the bushhog program." When asked why Vinson and Rushin were
laid off, Owens testified, "All the right-of-way that we considered necessary to
bushhog or that could be bushhogged had been cut. We had no further use for
the crew."
The General Counsel and the Union contend that the record refutes Bailiff's
testimony that there was no more bushhogging to be done, and, on the contrary,
affirmatively shows that the Respondent had a continuing need of bushhogging
work. They cite the fact that Rushm and Vinson were only a little over half done
bushhogging the Patterson to Garwood line at the time they were laid off. They
point to Rushin's testimony that the terrain on that part of the unfinished Patter-
son to Garwood line which he had seen, which was a stretch about a mile and a
half long, was about the same as the part which he had covered with his bushhog,
i e., it had both level spots and rough spots. They also call attention to Rushin's
further testimony that there was quite a bit of brush on the Patterson to Graniteville
line and that it was 6 to 15 feet high. In this connection it appears that early in
1964, Bailiff, in talking to Rushin about the Patterson to Graniteville and Ellington
to Viburnum lines, had indicated that these lines would again be covered during
the summer of 1964. When Rushin inquired whether these lines would be bush-
hogged, Bailiff replied that "he could cut most of them and what we couldn't we
could spray." 16 Rushin brought to the hearing photographs and samples of
woodcuttings taken from various rights-of-way. These photographs and cuttings
indicate that there were spots where further bushhogging could be done. However,
these exhibits have only limited value insofar as showing a need for bushhogging
over whole sections of the Respondent's rights-of-way.
It is thus apparent that the evidence concerning the need for bushhogging on the
Respondent's rights-of-way is in conflict. It also is clear that the Respondent's de-
termination that there was no further right-of-way which it was feasible to bush-
hog was based solely on Bailiff's opinion and recommendation. Bailiff was new
on this particular job, having had the responsibility for maintenance of the right-of-
way for only 4 months. Bailiff's testimony discloses that there were sections
of the right-of-way, the condition of which he was unfamiliar with. Foreman
Longhilber, who was in direct charge of the brush clearing operations and who
worked regularly with the crews along the rights-of-way and who, therefore, was
most familiar with the brush situation, was not called as a witness by the Re-
spondent.
I have found Bailiff to be an unreliable witness in connection with his denial
that he ever attributed Carroll's failure to be given the assignment to drive the
new boomtruck to the fact that Carroll had voted for the Union in the election.
Bailiff's reliability is further drawn into question by his testimony concerning the
terrain under various of the Respondent's lines. When testifying generally as to
the slopes of the terrain in various sections of right-of-way Bailiff exaggerated their
steepness. When confronted with the Respondent's own topographic maps of these
sections, Bailiff was forced to admit to figures which revealed gentle slopes which
were susceptible of bushhogging.
Aside from the question of the availability of further sections of right-of-way
which it would be feasible to bushhog, there remains the question of the avail-
ability of other work to which Rushin and Vinson could have been transferred.
16 When asked n hether he had made any such statement to Rushin, Bailiff answered,
"I don't recall setting any dates as to when it would be bushhogged." Thereafter,
Bailiff in effect evaded answering the question about his having made the statement to
Rushin, and the subject was changed to the conditions of these lines, as to which Bailiff
testified that bushhogging was not needed much later on in his testimony Bailiff
admitted telling some undisclosed members of the right-of-way crew that the Ellington
to Viburnum and Patterson to Graniteville lines would need clearing at some unstated
time. Under all the circumstances, I find that Bailiff made the statement which Rushin
attributed to him.
M & A ELECTRIC POWER COOPERATIVE, INC. 555
The Respondent's records covering its right-of-way clearing operations in 1963
throw considerable light on this subject. These records show that in all of 1963
the Respondent's crew covered a total of less than 18 miles of right-of-way.
Working at the same rate at which it worked in 1963, it would take the spray crew
over. 15 years to cover the whole 280 miles requiring treatment. Assuming that the
spray crew was working at an extraordinarily slow rate of speed in 1963, and
could make materially faster progress in 1964 and subsequent years, it seems ap-
parent to me that the spray crew could not keep abreast of the brush even were
it able to cover 40 miles a year, a rate more than twice as fast as the spray crew
worked in 1963. Even at this substantially faster pace it would take the spray
crew 7 years to cover the Respondent's whole system. This circumstance leads
me to question the accuracy of the Respondent's statements that it had no other
work to which Rushin and Vinson could be transferred. Even if there was no
more bushhogging to be done, it appears that there was more spraying to be done
without being at all wasteful of manpower. The Respondent had two sets of
spraying equipment and at times had used both sets simultaneously. The Re-
spondent's failure to assign Rushin and Vinson to spraying work is a factor which
in my opinion militates against acceptance of the Respondent's explanation for
their layoff.
Another circumstance which casts doubt on the Respondent's explanation for
who was transferred to the spray crew the same day that Rushin and Vinson were
laying off Rushin and Vinson is the Respondent's inconsistent treatment of Utley,
laid off, and its failure to follow a consistent seniority policy. As found above, in
one of the Respondent's letters to the employees before the election the Respondent
stressed the steady nature of its work, and that the Respondent did not have layoffs
(until the arrival of the Union on the scene it had not had any layoffs). The
letter went on to say, "If we had layoffs, we would follow seniority." However.
Rushin's seniority was wholly disregarded at the time of his layoff. Rushin was
senior to both employees on the spray crew and had actually worked on the spray
ciew for about 15 months before being transferred to the bushhog crew.
The Respondent seeks to answer this contention by saying that it follows
seniority by operations and does not transfer employees from one operation to
another. However, the Respondent followed exactly the opposite policy in the
case of Utley. It did not hestiate to transfer Utley from one of the line crews
to the spray crew. It does not appear that the Respondent even considered the
relative seniority of its groundmen before selecting Utley for transfer.17 The
Respondent's failure to follow a consistent policy in dealing with Rushin and
Vinson on the one hand and Utley on the other, and its failure to observe its
professed policy regarding seniority suggests that the Respondent was groping for
excuses for ridding itself of these three employees who were the three most promi-
nent union supporters. This inference is strengthened by the dubious explanation
offered for transferring Utley to the spray crew, discussed below.
That the Respondent has been opposed to having a union in its establishment
from the beginning is established by the evidence in this case. Not long after the
Respondent became aware of the organizing activities of the employees it threat-
ened reprisals against employees, particularly the members of the rights-of-way
crews, on which two of the principal union supporters worked. And it made a
veiled offer to the employees to raise their wages if they would forget about the
Union. In the preelection period the Respondent sent letters to its employees
plainly evincing hostility to the Union. During this period also Superintendent
Robertson warned Cox that he was afraid he would have to fire Utley and Vinson.
That the Respondent's opposition to the Union continued despite the Union's vic-
tory in the election is seen in the remarks of Right-of-Way Supervisor Bailiff and
Superintendent Robertson to Carroll after the election attributing his failure to
receive the assignment to drive the new boomtruck to his "voting the wrong way."
Significantly, it was Bailiff who made the basic decision which resulted in the layoff
of Rushin and Vinson.
The Respondent was not faced with any emergency on May 22 calling for the
immediate discontinuance of bushhogging. By its nature, bushhogging could have
been stopped either before May 22 or weeks or months thereafter. But in my
17 Utley apparently had a little more seniority than, or at least the same seniority as,
John Carroll, one of the two other groundmen (Utley was hired on January 2, 1963, and
Carroll was hired sometime in January 1963). Yet, so far as the record shows, no con-
sideration was given to transferring Carroll to the spray crew.
556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opinion it could not have been stopped at any of these times without the Re-
spondent's falling behind in its right-of-way clearing operations, unless additional
men were assigned to spraying.
Upon all of the facts of the case, I conclude that the Respondent was motivated
by hostility to the Union in laying off Rushin and Vinson and that had not the
Respondent been so motivated it either would have continued them on the bush-
hogging operation or would have transferred them to spraying Accordingly I con-
clude that the Respondent's layoff of Rushin and Vinson violated Section 8(a)(3)
of the Act and that the remedy of reinstatement with backpay is appropriate on this
ground also.
The General Counsel and the Union contend that the fact that Rushin and Vin-
son were not given an opportunity to do the temporary engine repair work for
which two new employees were hired in November is a further circumstance indi-
cating the discriminatory character of their layoff. While this matter is not free
from doubt, I believe the testimony of Howard Clutts, the powerplant superintend-
ent was was responsible for hiring these two temporary employees, as to the
reasons why he decided against recalling Vinson and Rushin.
Regarding Vinson, Clutts testified that he had observed him doing simple repairs
on various occasions and had concluded that he had no aptitude for that kind of
work. As to Rushm, Clutts testified that although Rushin was an experienced pro-
fessional mechanic and had worked on the repair of the Respondent's engines
when first hired, he had asked to be transferred from such work, in part because
he was nervous and fearful that the adjacent engines might explode and that he
might be injured. Remembering this fact, Clutts had decided not to ask Rushm
again to work in this exposed position. Rushin impressed me as a nervous indi-
vidual. I am convinced that one of the reasons that Rushin requested a transfer
out of the powerplant and accepted a job on the spray crew at a reduced wage
was his fear of being injured while working in the engineroom. I am further con-
vinced that Rushin communicated his feelings in this regard to Clutts when he
requested the transfer from the powerplant. In these circumstances, I do not think
it reasonable to draw any adverse inference from Clutts failure to recall Rushin
for this type of work.
c. The transfer of Utley to the spray crew
I have found that Utley's transfer from his job as groundman on one of the
Respondent's line crews to a job as laborer on the spray crew at 42 cents per
hour less than the scheduled rate for groundmen constituted an act of discrimina-
tion against Utley. The question now to be considered is whether this action
was taken to discourage union membership so as to render Utley's transfer viola-
tive of Section 8(a)(3) of the Act. As in the case of the layoffs of Rushin and
Vinson, the resolution of this question requires consideration of all the surround-
ing circumstances, including the Respondent's explanation for the transfer.
The Respondent contends that it became necessary to transfer Utley because of
its decision to transfer Foreman Longhilber to Herschel Thornton's line crew to
drive the new boomtruck. As stated above, previously Longhilbler had been the
right-of-way maintenance foreman in charge of both the bushhog and the spray
crew, and had been driving the tractor on the spray crew. Under the Respondent's
pay schedule, Longhibler, as right-of-way maintenance foreman, received $3 per
hour at this time. Up until Longhibler's transfer, Utley had been the groundman
on Thornton's line crew, and in recent months had been doing much of the driving
of the old boomtruck which the new boomtruck was replacing. Since the Re-
spondent did not need the services of two groundmen on Thornton's crew, accord-
ing to the Respondent, it became necessary to find another place for Utley.
At the time of the transfer of Utley to the spray crew, a reshuffle took place
there. Erv Aldridge was given the job of foreman of the spray crew, and he took
over the driving of the tractor, which Longhibler previously had done. The sched-
uled rate of pay of the spray foreman at this time was $2.05 per hour. (Had
Utley been receiving the scheduled rate for groundmen at the time of his transfer
he would have been receiving $2.22 per hour.) Utley was given the laborer's job
at $1.80 per hour, which according to the schedule was raised to $1.85 per hour
on July 1.
The record establishes that the Respondent's boomtrucks, either the old or the
new, are operated only 10 to 15 percent of the time. Presumably the whole time
they are being operated, a highly paid and responsible crew leader or journeyman
lineman is present. In these circumstances I question whether a prudent business-
M & A ELECTRIC POWER COOPERATIVE, INC. 557
man would bring into the crew a $3-an-hour man simply to have him available to
drive a truck 15 percent of the time, when previously the truckdriving services had
been performed for less than $2 an hour. This seems especially true since it
does not appear that this $3 man had any special experience doing linework, which
he would be doing 85 percent of the time.
Although the new truck was a complicated piece of equipment with numerous
controls to operate, in a sense the new truck was more simple to handle than the
old one because all of the equipment installed upon it was hydraulically operated.
No more manhandling of outriggers was required and no more working with
winches and cables.
That special experience was not essential to operate the new boomtruck is sug-
gested by General Manager Owens' inquiry of Groundman Carroll before the
election as to whether he would be interested in driving the new boomtruck (the
record does not show whether or not Carroll had been driving a truck ). (It is
possible that this may have been only a tongue-in-cheek inquiry intended to hold
out such a prospect as a reward for voting against the Union in the coming election.)
The Respondent asserts that it selected Longhilber in preference to Utley to drive
the new boomtruck because he was an employee of a number of years standing, he
had demonstrated his ability to handle and take care of mechanical equipment and
was considered able to do the necessary maintenance work on the new truck, and
he was regarded as a reliable employee to whom the Respondent could entrust the
driving of its new $50,000 piece of equipment. Longhibler was the man recom-
mended by Superintendent Robertson who was in charge of the line crews.
The Respondent's only specific criticism of Utley's handling of the old boomtruck
came from Superintendent Robertson who testified that on one occasion he had
observed Utley unloading the old truck without extending the outriggers, which are
used to prevent the truck from overturning. Robertson did not speak to Utley
on this occasion but, according to Robertson, he did reprimand Crew Leader
Thornton for permitting such a practice. No harmful effects resulted from Utley's
failure to use the outriggers on this one occasion.t$
Finally, it should be borne in mind that the supervisor responsible for selecting
Longhibler to drive the new boomtruck was Superintendent Robertson, the super-
visor who was most active in opposing the Union from the very beginning. The
effect of the Respondent's selection of Longhibler to drive the new boom truck, its
promotion of Aldridge to be spray foreman, and the transfer of Utley to the job
of laborer on the spray crew was to isolate Utley from contact during the working
day with the bulk of the Respondent's employees in a distasteful job under an
uncongenial foreman. This combination might have been regarded by Robertson
as being sufficient to induce Utley to quit; if not, it would at least place Utley in the
spot where his union advocacy could do the least harm.
Under all the circumstances of the case I conclude that the transfer of Longhibler
to Utley's spot in Thornton's line crew and the resulting transfer of Utley to the
spray crew was decided upon the same time as the decision to terminate bush-
hogging and to lay off Rushin and Vinson, and that this was a package deal
intended to eliminate or take care of the three principal threats to the status quo.
Vinson and Utley, as found above, were the two known instigators of the union
movement and Rushin was an avowed supporter of the Union in a campaign
which was carried on for the most part in secret. As in the case of the layoff
of Rushin and Vinson, I find that the transfer of Utley to the spray crew was
effected for antiunion reasons and violated Section 8(a)(3) of the Act. I conclude
further that Utley was not given the scheduled rate of pay for groundmen which
became effective on January 1, 1964, in retaliation for his union activities.19
18 Superintendent Robertson testified that Longhibler would never fail to use the out-
riggers. When pressed for an explanation it developed that years before , when the old
boomtruck was brand new, it had overturned while being unloaded by Longhibler without
extending the outriggers . General Manager Owens testified that this was due to a
faulty cable connection.
'sI have not overlooked the fact that on May 22, when the layoffs and the transfer
were effected , the Union had been certified . However, the Union at this time had not
yet been in touch with the Respondent about bargaining and the Respondent may have
hoped that with the ringleaders taken care of the whole movement would die down. In
any event, I do not believe that the fact that the Respondent subsequently engaged in
bargaining with the Union is enough to destroy the inference of hostility to the Union
which I find pervades the Respondent 's actions up through May 22.
558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The Respondent 's violation of Section 8 (a) (1) of the Act
Having concluded that the Respondent engaged in new unfair labor practices
after entering into the settlement agreement , it is appropriate , under the authorities
cited above , to consider the Respondent 's conduct before entering into the agree-
ment. The undisputed testimony establishes that Office Manager Ellis and General
Manager Owens, in turn, questioned Williams on January 31 as to who was active
in the Union and what trouble had prompted the employees to seek out the Union.
The Respondent admits that this conduct may constitute a technical violation of
Section 8 ( a) (1), but urges that its letter of February 4 informing the employees of
their rights under the Act dissipated the effects of such questioning . Had the Re-
spondent not engaged in further unfair labor practices after the settlement , I might
be inclined to agree. However, in view of the Respondent 's subsequent refusal to
bargain and its subsequent discriminatory treatment of Rushm, Vinson, and
Utley, I conclude that the Respondent should not be relieved of responsibility for
this conduct which I find violated Section 8 ( a)(1) of the Act.
Superintendent Robertson 's action on January 22 in relaying to his employees
General Manager Owens' question concerning who were the instigators and sup-
porters of the Union also constituted interference , restraint , and coercion in the
circumstances of this case.
As found above, Superintendent Robertson on January 27, after commenting on
the fact General Manager Owens had heard that union talk had started in the
right-of-way department , passed along Owens' warning that "if it [came] to it,
the cost got too high , . . . he would contract out the right-of-way work." Such
a warning, in my opinion , had a coercive impact on his hearers , which included
some members of the right -of-way crew . The fact that Robertson included in
his warning the reference to costs, in my opinion , did not detract from the coercive-
ness of this statement . There is nothing in the record to suggest that the Union
was disposed to make demands which the Respondent could not afford to grant
or that the Respondent was under any compulsion to grant such demands , if they
should be made . In the circumstances , Robertson 's warning about contracting out
right-of-way work was a wholly gratuitous statement uttered in what I believe was
a deliberate effort to intimidate employees into abandoning the Union 2°
Robertson 's conduct on January 31 in inquiring of his employees whether they
would forget about the Union if they were brought up to the union scale consti-
tuted a veiled promise of a benefit and , as such, was clearly violative of Section
8(a)(1) of the Act.
In the period preceding the election , Robertson , as found above , drew Richard
Cox to one side and talked to him at length about the disadvantages of having a
union. Among other things Robertson stated that "he was afraid when all of this
blew over that he would have to get rid of Les [Utley] and Bill [Vinson ]." This
constituted a veiled threat to discharge union supporters which is plainly within
the ban of Section 8(a)(1) of the Act. On this same occasion Robertson uttered
the further threat that if the Union got in , he would have to "ride herd on [the
employees ], a lot more." This threat, too, exceeded the bounds of permissible
conduct under Section 8 ( a)(1) of the Act.
The consolidated complaint alleges that the Respondent 's notification of its
employees on February 4 of the further pay raises to be effective April 1 and
July 1, 1964 , constituted a further act of interference , restraint, and coercion in
violation of Section 8(a)(1) of the Act. In my opinion, the Respondent 's viola-
tion of the Act, if any , in connection with the grant of wage increases , occurred
on January 21 and 24, 1964 , when it decided upon and announced substantially
larger increases to be effective retroactively to January 1, 1964. However, the
consolidated complaint does not attack the Respondent 's action on January 21 and
'-o Cf. International Union of Electrical, Radio and Machine Workers , AFL-CIO (NECO
Electrical Products Corp ) v. N.L.R B. , 280 F. 2d 757 , 762-763 ( C A D C ) • N L R B v.
Harold Miller, Herbert Charles and Milton Charles, Co-Partners , d/b/a Miller Charles
d Co, 341 F. 2d 870 (CA 2 ). The Chicopee Manufacturing Corporation (107 NLRB 106)
and Poresy, Inc. (143 NLRB 617, 620 ) line of cases relied on by the Respondent are in-
applicable in the present situation . Those cases involve statements concerning possible
loss of employment after unionization resulting not from the employer's own actions, as
here , but from outside customers withdrawing their patronage from the employer In
this case, any contracting out will be the Respondent ' s own act, not that of anyone else
M & A ELECTRIC POWER COOPERATIVE, INC. 559
24. The failure of the consolidated complaint to raise the issue of Respondent's
action on January 21 and 24 with respect to wage increases is particularly signifi-
cant since the Union's charge in Case No. 14-CA-3283 specifically raised the
issue of the Respondent's January 24 wage increase announcement. Under the
circumstances it is clear that there is no issue open before me concerning the
Respondent's wage increase action and announcement on January 21 and 24, 1964.
Regarding the Respondent's February 4 announcement of the April 1 and July 1,
1964, increase, I find, in accordance with General Manager Owens' testimony
that this notice was issued merely to correct the error which had been made by
the office in failing to inform the employees of the full extent of the wage increase
action taken by the Respondent's board of directors on January 21. The effect
of the February 4 notice was anticlimatic after the Respondent's January 24 notifi-
cation of a substantial wage increase to be effective retroactively. Under all the
circumstances, including particularly the fact that the Respondent specifically stated
in the February 4 notice that the employees had the right to join any labor organi-
zation and that the Respondent did not intend, either by its January 24 action
or the February 4 notice, to interfere with the employees rights under the Act,
I find the Respondent's action in connection with the February 4, 1964, notice
did not violate the Act. The allegation of the complaint in this regard is hereby
dismissed.
CONCLUSIONS OF LAW
1. By questioning employees concerning the identity of union supporters and
other union matters in the coercive circumstances of this case, and by seeking to
induce employees to abandon the Union by means of threats of reprisals and
promises of benefits, the Respondent has interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of this Act,
thereby engaging in unfair labor practices in violation of Section 8(a)(1) of
the Act.
2. By laying off Kenneth Rushin and William Vinson and transferring Lester
Utley to the spray crew on May 22, 1965, the Respondent has discouraged mem-
bership in the Union by discrimination in regard to their tenure or terms or con-
ditions of employment, thereby engaging in unfair labor practices in violation of
Section 8 (a) (3) and (1) of the Act.
3. The Union is, and has been since April 27, 1964, the duly certified bargaining
representative of the Respondent's maintenance, construction, and operating em-
ployees, including the crew leader and substation foreman, but excluding the
maintenance chief, draftsman, office clerical employees, guards, professional
employees, and supervisors as defined in the Act.
4. By failing in the period before May 22, 1964, to notify the Union concerning
its plans to discontinue bushhogging work, thereby failing to afford the Union an
opportunity to bargain collectively about such decision and related matters, the
Respondent has engaged in an unfair labor practice in violation of Section 8(a)(5)
and (1) of the Act.
5. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in
violation of Section 8(a)(1),(3 ), and (5 ) of the Act, my Recommended Order
will provide that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
I have found that the Respondent's discontinuance of its bushhogging operations
and the resulting layoff of Rushin and Vinson , its two bushhog operators , violated
not only Section 8(a)(3) but also Section 8(a)(5) of the Act. As indicated above,
the reinstatement of Rushin and Vinson to their former positions as bushhog
operators with backpay is an appropriate remedy for either violation Backpay shall
be based upon the earnings which Rushin and Vinson normally would have re-
ceived as bushhog operators from the date of their layoff to the date of the Re-
spondent 's offer of reinstatement , less any net interim earnings , and shall be com-
puted in accordance with the formula set forth in F. W. Woolworth Company,
90 NLRB 289, 291-293, and Isis Plumbing & Heating Co ., 138 NLRB 716.
560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
My Recommended Order will also direct that Respondent restore Utley to a
position as groundman on one of its line crews, and make him whole for any
losses suffered as a result of his transfer to the spray crew. In view of my finding
that Utley was discriminated against even before his transfer to the spray crew by
not being paid the scheduled rate of pay for groundmen, I conclude that the
measure of Utley's backpay should be the difference between the Respondent's
scheduled rate of pay for groundmen and what Utley received as a laborer on the
spray crew. Utley's backpay period shall commence on May 22, 1964, the date of
his transfer to the spray crew, and shall end with his restoration to a position as
groundman. His backpay shall also be computed in accordance with the Wool-
worth and Isis formula, supra.
In addition, since the Respondent failed to notify the Union concerning its plans
to discontinue bushhogging operations so as to afford it an opportunity to bargain
collectively about such discontinuance, my Recommended Order will require the
Respondent,, in the event that it proposes in the future (as long as the Union
remains the statutory bargaining agent of its employees) to discontinue such or
any other operations that it give advance notice of such proposed discontinuance
to the Union and afford it an opportunity to bargain collectively about the dis-
continuance and related matters.
The unfair labor practices herein found, including discriminatory layoffs and a
discriminatory transfer, are such as to indicate an attitude of opposition to the
purposes of the Act generally. In these circumstances a broad cease-and-desist
provision is necessary to effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the foregoing findings and conclusions and the entire record, and pursuant
to Section 10(c) of the National Labor Relations Act, as amended, it is hereby
recommended that the Respondent, M & A Electric Power Cooperative, Inc., Poplar
Bluff, Missouri, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Seeking to induce employees to abandon Local 702, International Brother-
hood of Electrical Workers, AFL-CIO, or any other labor organization, by means
of threats of reprisals or promises of benefit, coercively questioning employees
about union matters, or in any other manner interfering with, restraining, or
coercing employees in the exercise of the rights guaranteed in the Act.
(b) Discouraging membership in Local 702, International Brotherhood of
Electrical Workers, AFL-CIO, or any other labor organization, by laying off,
transferring, or in any other manner discriminating against employees in regard
to their hire or tenure of employment or any term or condition of employment.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Offer immediate and full reinstatement to their former positions as bushhog
operators, without prejudice to their seniority and other rights and privileges, to
Kenneth Rushin and William Vinson, and make each of them whole for any loss
of pay which he may have suffered as a result of its discrimination against him,
in the manner provided in the section hereof entitled "The Remedy."
(b) Notify Kenneth Rushin and William Vinson if presently serving in the
Armed Forces of the United States of their right to full reinstatement upon applica-
tion in accordance with the Selective Service Act and the Universal Military Train-
ing and Service Act of 1948, as amended, after discharge from the Armed Forces.
(c) Restore Lester Utley to a position as groundman on one of its line crews,
and make him whole for any loss of pay which he may have suffered as a result of
its discrimination against him, in the maner set forth herein the section entitled
"The Remedy."
(d) In the event that the Respondent plans to discontinue bushhogging or any
other operation in the future, notify Local 702, International Brotherhood of
Electrical Workers, AFL-CIO, of the fact in advance and, if requested to do so,
bargain collectively with said labor organization with respect to the decision to
discontinue the operation and related matters.
(e) Preserve and, upon request, make available to the Board or its agents, for
examination and copying,. all payroll records, social security payment records,
timecards, personnel records and reports, and all other records necessary to analyze
the amounts of backpay due.
M & A ELECTRIC POWER COOPERATIVE, INC: .5G1
(f) Post at its Poplar Bluff, Missouri , facilities , copies of the• attached notice
marked "Appendix ." 21 Copies of said notice , to be furnished by the Regional
Director for Region 14, shall, after being duly signed by an authorized representa-
tive of the Respondent , be posted by the Respondent immediately upon - receipt
thereof, and be maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered , defaced, or covered by any other material.
(g) Notify the Regional Director for Region 14, in writing , within 20 days
from the receipt of this Decision , what steps it has taken to comply herewith 22
In the event that this Recommended Order be adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a
Trial Examiner" In the notice. In the further event that the Board ' s Order be enforced
by a decree of a United States Court of Appeals , the words "a Decree of the United States
Court of Appeals , Enforcing an Order" shall be substituted for the words "a Decision
and Order".
ze In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read : "Notify said Regional Director , in writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National
Labor Relations Board, and in order to effectuate the policies of the National
Labor Relations Act, as amended , we hereby notify our employees that:
WE WILL NOT seek to induce employees to abandon the union by means of
threats of reprisals or promises of benefits , coercively question employees
about union matters, or in any other manner interfere with, restrain, or
coerce employees in the exercise of their right to join unions and to bargain
collectively.
WE WILL NOT discourage membership in Local 702, International Brother-
hood of Electrical Workers , AFL-CIO, or in any other union, by laying off,
transferring , or otherwise discriminating against employees.
WE WILL offer immediate and full reinstatement to their former jobs as
bushhog operators to Kenneth Rushin and William Vinson and will reimburse
them for any loss of pay they may have suffered as a result of their layoff.
WE WILL notify Kenneth Rushin and William Vinson, if presently serving in
the Armed Forces of the United States, of their right to full reinstatement
upon application in accordance with the Selective Service Act and the Uni-
versal Military Training and Service Act of 1948, as amended , after discharge
from the Armed Forces.
WE WILL restore Lester Utley to a position as groundman and will reim-
burse him for any loss of pay he may have suffered as a result of his not being
paid the scheduled rate for groundmen during his transfer to the spray crew.
WE WILL, in the event we propose to discontinue any operation , inform
Local 702, International Brotherhood of Electrical Workers, AFL-CIO, the
duly certified bargaining agent of our maintenance , construction , and operating
employees , of our plans to do so and, if requested to bargain collectively
about the proposed discontinuance of operations and 'related matters, we will
do so.
All our employees have the right to form, join , or assist any labor union, or
not to do so.
M & A ELECTRIC POWER COOPERATIVE, INC,
Employer.
Dated----------------- -- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of post-
ing, and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 4459
Federal Building, 1520 Market Street , St. Louis, Missouri, Telephone No. Main
2-4142, if they have questions concerning this notice or compliance with its
provisions.
206-446-66-vol. 154-37