Providence Gas Co.

National Labor Relations Board - Board Decisions

Jun 19, 1942

41 N.L.R.B. 1121 (N.L.R.B. 1942)

In the -Matter of PROVIDENCE GAS' COMPANY and LOCAL No. 12133,
DISTRICT 50, UNITED MINE WORKERS OF AMERICA (C. I. 0. )
Case No. C-1974.-Decided June 19,1942
Jurisdiction : gas utility industry.
Unfair Labor Practices:
Company-Dominated Union: charges alleging an organization to have been a
successor to'an earlier company-dominated organization dismissed ; organiza-
tion notfound to have arisen from or to have seemed to the employees-at large'
to have evolved out of the earlier dominated organization in such a manner'
that the, employees would suppose that the employer approved this organization
as it had the earlier dominated organization.
Practice and Procedure : complaint dismissed.
Mr. Albert J. Hoban, for the Board.
Swan,'Keeney and Smith, by Mr. E. J. Phillips and, Mr. Dana M.'
Swcsn, of Providence , R. I., for the-respondent.
Grant and Angoff, by Mr. Samuel E. Angoff, of Boston , Mass.,, for'
the Union.
Mr. John G. Murphy, of Providence , R. I., for the Association.
Mr. Daniel J. Harrington, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed by Local No. '12133, District
50, United Mine Workers of America, affiliated with the Congress of
Industrial Organizations, herein called the Union, the National Labor
Relations Board, 'herein called the Board, by the Regional Director
for the First Region (Boston, Massachusetts), issued its complaint
dated July 3, 1941, against Providence "Gasp Company, Providence,
Rhode Island, herein called the respondent,' alleging that the re-
spondent had engaged in and _was engaging in unfair labor practices
affecting commerce, within the meaning of Section 8 (1) and (2)
and Section 2 (6) and (1) of the National Labor. Relations Act,
49 Stat: 449, herein called the Act. Copies of the complaint, accom-
panied by notice of hearing thereon, were duly served upon the re-
41-N. L. R. B., No. 203. ,
463892-42-vol 41-71 1121
1122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent, the Union,, and Protective Association of Gas Utility
Workers, Inc., herein called the Association.
With respect to the unfair labor practices, the complaint alleged
in substance: (1) that in December 1933 the respondent dominated
and interfered.with the formation of Providence Gas, Company Em-
ployee Representation Plan, herein called the Plan, and at all times
thereafter until on or about February 28, 1938, dominated and inter-
fered with the administration of and contributed financial and other
,support to the Plan; (2) that in February 1938 the respondent
dominated and interfered with the formation of Providence Gas
Company Negotiation Agreement, a successor to the Plan and herein
called the Negotiation Agreement, and at 'all times thereafter until
on or about February 20, 1941, dominated and interfered with the
administration of and contributed financial, and other support to the
Negotiation Agreement ; (3) that on or about December 16, 1940,
the respondent dominated and interfered with the formation of the.
Association, a successor to the Negotiation Agreement and to the
Plan, and has since dominated and interfered with the administration
of and contributed financial and other support to the Association by
permitting its employees, including employees who were representa-
tives under the Negotiation Agreement, to engage in organizational
activities on behalf of the Association on the respondent's property
during working hours and by continuing the Negotiation Agreement
and the Plan through the Association; and (4) that by said acts the
respondent interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed them by Section 7 of the Act.
Thereafter the respondent filed its answer, admitting the allega-
tions of the complaint with respect to interstate commerce, denying
that it had engaged in the unfair labor practices charged, and affirma-
tively alleging that on February 20, 1941, the Plan and the Nego-
tiation Agreement were disestablished at the suggestion of the Board
and were not thereafter in existence for any purpose. On July 21,,
1941, the Association filed an answer, denying that the respondent
had dominated and interfered with the formation and administration
of the Association or contributed financial or other support thereto.
Pursuant to notice, a hearing was held at Providence, Rhode Island,.
from July 21 to 26, 1941, before R. N. Denham, the Trial Examiner
duly designated by the Chief Trial Examiner. At the opening of
the hearing, the Association filed its written petition for leave to
intervene. The Trial Examiner granted the petition. The Board,
the respondent, the Union, and the Association were represented by:
counsel \and participated in the hearing. Full opportunity to be
heard, to examine and 'cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties . At the
PROVIDENCE - GAS -COMPANY 11/23
close, of the Board 's case, the respondent moved to dismiss the com-,
plaint and also moved , in the alternative, to strike from paragraph 6
of the complaint , the allegation that J . C. Freeman , the respondent's
president , and R . L. Fletcher , its vice president and engineer, had
dominated and interfered with the formation of the Association.
The Trial Examiner denied both motions with leave to renew them
at the close of all the testimony in the case . At the close of the
hearing the above motions were renewed. The Trial Examiner
reserved ruling on the motions and in his Intermediate Report, sub-
sequently filed, disposed of them by his dismissal of the complaint.
At the close of the hearing the Trial Examiner granted the Board's
motion to conform the complaint to the proof . During the hearing
the Trial Examiner made rulings on other motions and on objections
to the admission of evidence . The Board has reviewed all the rulings
of the Trial Examiner and finds that ho prejudicial errors were
committed. The rulings are hereby affirmed.
Following the hearing , the respondent , the Union , and the Associ-
ation submitted briefs to the Trial Examiner. On October 2, 1941,
the Trial Examiner issued his Intermediate Report, copies of which
were duly served upon the respondent , the Union , and the Asso-
ciation, in which he found that the respondent had not engaged in
the unfair labor practices alleged and recommended that the com-
plaint be dismissed. On November 8, 1941, the Union filed exceptions
to the Intermediate Report and a brief in support of its exceptions.
On November 12, 1941, the respondent also filed a brief.
Pursuant to notice , a hearing was held before the Board on January
13, 1942, in Washington , D. , C., for the purpose of oral argument.
The respondent, the Union, and the Association were represented by
counsel and participated in the hearing.
The Board has considered the exceptions and briefs and finds the
exceptions , save such as are consistent with the findings, conclusions,
and order below, without merit.
Upon the entire record in 'the case, the Board-makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent is and since 1847 has been a Rhode Island corpora-
tion with its general offices and principal place of business in Provi-
dence, Rhode Island, where, as a public utility, it engages in the
manufacture, sale, acid distribution of. gas and its byproducts, employ-
ing approximately 721 persons . In 1940, the respondent used in its
business , approximately 356,500 tons of coal , 338,128 gallons of gas
oil, and 616 tons of cast -iron pipe , all of which were shipped to the
1124 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent through the channels of interstate commerce from points
outside the State of Rhode Island. During the same year the re-
spondent manufactured and sold 1,730,800 pounds of ammonia and
222,650 net tons of coke, all of the- ammonia and 32 percent of the -
coke being shipped to customers located outside the State of Rhode
Island. The respondent admits that it is engaged in commerce within
the meaning of the Act.
II. THE ORGANIZATIONS INVOLVED
Local No. 12133, District 50, United Mine Workers of America,
affiliated with the Congress of Industrial Organizations, is a labor
organization admitting to membership employees of the respondent.
Providence Gas Company Employees Representation Plan was an
unaffiliated labor organization admitting to membership employees of
the respondent.
Providence Gas Company Negotiation Agreement was an unaffili-
ated labor organization admitting to membership employees, of - the
respondent.
Protective Association of Gas Utility Workers, Inc., is an un-
affiliated labor organization admitting to ' membership employees of
the respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Sequence of events
In September 1933 the Plan was formed among the respondent's
employees. It continued to function until February 20, 1941, when
the respondent, pursuant to prior arrangement with representatives
of the Board, disestablished it.' For the purposes of this Decision,
we shall assume that the Plan was company-dominated.
By early 1937, employees were becoming dissatisfied with the
Plan. Hans Pohle, who became a member of the Service Station 2
Committee of the Plan in 1936 and thereafter served on the Plan's
General Committee each of the following years, had unsuccessfully
advocated a union prior to 1933. When the Plan was inaugurated
he supported it as the best thing then available, but never abandoned
I On February 28, 1938 , the Plan committees approved and accepted , without reference
to the ' employees , a rewriting of the Plan , which - varied only in'detail from the Plan as
amended on March 31, 1937 . For purposes of identification this was termed -the Nego-
tiation Agreement but it was in fact and was generally recognized by all concerned, to
be a continuation of the Plah , rewritten to incorporate the various amendments. The
Negotiation Agreement was disestablished along with the Plan When the term "Plan"
is used hereinafter , it will refer interchangeably to the original Plan or the Negotiation
Agreement , or to both, unless the context requires otherwise.
2 The respondent has three divisions , called respectively , the Central Office, the Service
Station, and the Plant.
PROVIDENCE GAS COMPANY 1125
his idea of a labor organization free of company influence. By
1937, he had communicated with both the Congress of Industrial
Organizations, herein called the C. I. 0., and the Brotherhood of
Utility Workers of New England, herein called the Brotherhood,
for the purpose of obtaining information with respect to organizing
the respondent's employees. Earl Dearman, treasurer of the sub-
sequently formed Association, and other employees, testified without
contradiction and we find that employees had openly expressed dis-
satisfaction with the operation of the Plan with respect to wages
and had advocated a union similar to one that had been established
at a neighboring company. On March 31, 1937, R. L. Fletcher, vice
president of the respondent, becoming aware of this unrest and dis-
satisfaction, proposed to the General Committee and obtained adop-
tion of, an amendment to the Plan which eliminated the management
representatives from the Plan committees.
At intermittent periods during recent years, the C. I. 0., the
American Federation of Labor, and the Brotherhood have made
sporadic efforts to interest the employees of the respondent in their
respective organizations, but there is no evidence that any of these
organizations has at any time attempted to conduct a sustained gen-
eral organizational campaign among such employees. Notwithstand-
ing this, both the C. I. O. and the Brotherhood have obtained some
members. By early 1940, some of the employees had begun openly
to question the legality of the Plan, and in March 1940, Morris A.
Jordan, a member of the General Committee, proposed in a com-
mittee meeting, that the Plan be "strengthened by either securing a
state charter" or by revising the provisions relative to the termina-
tion of the Plan. During the discussion of the proposal, Jordan
expressed the opinion that the Plan as it was then operating was
illegal and that the meetings of the committee should not be held
on company time and property. This proposal to incorporate and
transact business independently, off company time and property, was
advanced at later meetings of the General Committee, but on each
occasion those present rejected it.
Thereafter, feeling increased among the employees that the Plan was
illegal and that if they were to have proper representation, they would
have to adopt a different kind of organization. Discussion of the
subject became common among the employees. This discussion dis-
closed, and began to crystallize an underlying desire for an organiza-
tion, independent of the management. A number of employees, some
of whom were then serving or had served as representatives under the
Plan, intensified their advocacy for an undominated organization. In
November 1940, Jordan announced that he would not'accept nomina-
tion to the General Committee for 1941 and in December 1940 he
1126 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
joined and became active in the C. I. O. , Pohle opposed the C. I. O.
and advocated an unaffiliated union, chartered under the laws of Rhode
Island. Some of the Plan committeemen expressed opposition to
eliminating completely the Plan procedure. The more outspoken em-
ployees were convinced that the Plan did not represent the true will
of the employees. Their objections to it were numerous, but centered
around the fact that the employees themselves were not consulted
in mass meeting or otherwise, were not adequately advised of its
operations, had no voice in making regulations covering employee-
employer relations, had no appeal on grievances, and were not aggres-
sively represented in wage discussions.
On December 13 or 14, Pohle met John G. Murphy, an attorney
and asked him whether, in his opinion, the Plan was legal. Upon
having the Plan explained to him, Murphy advised Pohle that while
it could probably continue to function if not disturbed, it could not
resist attack.
On the following Monday, December 16, according to James
Roche's 4 uncontradicted testimony, he went to the Service Station,
assembled Pohle, Barrett 5 and several others, and engaged in a gen-
eral discussion as to what should be done in the face of -the illegality
of the Plan.
Polile told Roche that he had talked with Fletcher shortly before
and that Fletcher had said that if the Plan were challenged, the re-
spondent would be compelled to disestablish it. Pohle advanced the
"idea that they should 'form an independent association and charge
twenty-five or thirty cents a month and have nothing to do with the
C. I. 0., and have their own association, and they did not want to be
affiliated with any national association." Roche urged support of the
Union, which he had recently joined. During this, discussion, Pohle
decided to advance the regular December meeting of the General Com-
mittee, normally to be held the next day, and issued a call for a
meeting on that afternoon, inviting the 1941 electees also to be present.'
This meeting was attended by approximately 18 officials of the Plan.
Of 'the 9 members of the General Committee for 1940, only Jordan
s Murphy had formerly been employed by the, respondent , first as a pipe fitter 's helper,
and later as a clerk . In 1930 he was admitted to the Rhode Island bar . He quit his job
with the respondent and entered the practice of law in Providence Since then he has
represented many of the respondent ' s employees in their legal matters, has never been
employed by or represented the respondent , and is at present a member of the Rhode Island
Legislature where, in connection with proposed labor legislation , he has studied the Act
and its interpretation by the Boaid.
4 Roche was a member of the Plan's General Committee, and his term was then expiring.
He had just joined the C I O.
a Barrett was also a member of the General Committee He had been reelected for 1941.
It is customary to invite the newly elected committeemen to attend the last meeting of
the year, at which they ; in effect , take over.
PROVIDENCE GAS COMPANY 1127
was absent.7 Newly elected members of the General Committee for
1941 were invited and at least 2 attended.8 A number of divisional
representatives for 1940 and newly elected,members of the various
division committees were also present. After about an hour devoted
to routine matters, the question of a new labor organization was raised.
Pohle would not permit the subject to be discussed on the respondent's
property, whereupon the committee recessed and the assembled em-
ployees retired to the sidewalk in front of the respondent' s office.9 One
of the men, Thomas Dawber, was a member of the British Club, which
had a hall about 2 blocks away. He suggested that they go there to
discuss the matter; and this suggestion was followed. Shortly after
the men arrived at the British Club, the meeting was brought to some
semblance of order by George Justin, who had been previously desig-
nated to act as secretary of the General Committee for 1941. Pohle
reported to the group that Murphy had advised him that the Plan
was illegal and could not resist attack. He proposed that they form
an independent incorporated union. At that time at least 2 of the
Plan Committeemen were members of the C. I. O. and others shortly
thereafter became active in organizing the Union. Some employees
at the meeting advocated a change; others were opposed. At least
some of this latter group were not in fact opposed to an affiliated or=
ganization, but desired an opportunity to discuss with other employees
what steps should be taken.10 Numerous and varying opinions were
expressed, but the general sentiment was that some action should be
taken. As a result of the discussion, the employees present, by com-
mon consent, selected a group of 7 or 8 of their number to call on Mur-
phy that evening to inquire about formation of a new incorporated
organization. The employees then returned to the respondent's offices
and formally adjourned the meeting.,'
Meanwhile, Pohle had telephoned Murphy and made an appoint-
ment for the delegation to meet him after working hours that evening.
At about 5:30, Pohle, Timothy Foley, Dawber, Perry Wheeler, James
Conway, Stanley Matthews, H. Hall, and Howard Barrett, all of
7Although Jordan testified that his notice fixed the date of the meeting as December
17, 1940, he did not produce it . The Trial Examiner did not credit his statement and
found that his absence was more probably due to careless reading of the notice. We do
not credit Jordan 's testimony in this instance.
s Three members of the 1940 General Committee were reelected to the 1941 General Com-
mittee. Six of the 1941 General Committee were newly elected, not having served on
the Committee during 1940
° The record discloses that prior to the recess Roche, one of the General Committeemen,
had been excused from the meeting
SU Rutledge and several others of this faction soon after joined Jordan and Roche in
organizing the Union
a Of the group in attendance at this meeting on December 16, Fletcher, whose testimony
we credit , identified Foley and Rutledge as Officers of the Union in January 1941. Other
representatives under the Plan who were already or soon became members of the Union
include Turley , Hawkins , Wilson , and McSoley.
-1128 DECISIONS OF NATIONAL, LABOR RELATIONS BOARD
whom were representatives under the Plan, went to Murphy's office.
Foley questioned whether they could, as representatives, organize as a
corporation without violating their obligations as such representatives.
Pohle vigorously advocated an incorporated organization. Murphy
showed them a printed blank form used in Rhode Island for non-
business corporations and, in. the course of the discussion, a number
.of the men signed it. Up to this time, according to Murphy, whose
.testimony we• credit, as did the Trial Examiner, he thought that the
men were talking about incorporating the Plan. He told them that,
while they could do so, the Plan would still be vulnerable. When they
.explained that they were discussing abandonment of the Plan and
.incorporation of a different organization, Murphy advised them that
this would be futile since no one who had been identified with the Plan
could participate in the establishment of an undominated unaffiliated
union. The meeting then closed.12
• On the following day, December 17, at least some of the men who had
attended the meeting at Murphy's office the previous evening were
asked by fellow employees about this meeting and they explained that
Murphy had advised them that the representatives under the Plan
could not form a new organization.13 The news quickly spread among
the employees, and many volunteered to initiate a new organization. •
On December 18, an unidentified person arranged with Murphy's
office to have 'him meet a group of the respondent's employees that
evening, and the word was spread along the "grapevine" that a group
was going to meet with Murphy after work that evening for the pur-
pose of forming a new union, and` that all who were interested should
go to his office. As a result, about 25 employees, none of whom had
been identified with the Plan, met with Murphy at his office at about
5: 30 and solicited his services in forming a lawful, independent organi-
zation. At this meeting the name of the Association was decided upon.
Murphy filled, out a charter form and 8 of those present, chosen more or
1 William R Rutledge , one of those present at the meeting at the British Club, testified
that a motion was passed at that meeting that an independent organization be chartered
and that the charter be held "in abeyance " until such time as an outside organization might
attempt to organize the employees Foley testified that Murphy informed the group at his
office that , while serving as representatives under the Plan , they could form a new organiza-
tion , solicit members for it, and have it chartered , and that if it became necessary to dis-
establish the Plan , the new organization would "automatically step in ." There is no
corroboration of this testimony in the record Pohle and Barrett denied the testimony of
Rutledge and Murphy denied that of Foley The Trial Examiner did not credit the testimony
of these two employees nor, upon the entire record, do we
11 Wheeler testified that on December 17, he , Pohle, and Barrett discussed the situation-
created by Murphy ' s advice and agreed that Wheeler should instruct Justin to have ps
number of nien who were not Plan representati ves go to Murphy 's office and sign the
charter for another organization He testified that he did so instruct Justin Justin
denied , however , that Wheeler mentioned the matter to him or that he asked anyone to
go to. Murphy's office. Wheeler's testimony stands alone in the record and is contradicted
by the testimony of Pohle, Barrett, and others in addition to that of Justin The Trial
Examiner did not credit Wheeler's testimony , nor do we.
PROVIDENCE GAS - COMPANY 1129
less-at random but in such a way as to give representation-to each of
the 3 company divisions, signed it. The meeting ended at about 7
p. in. No money was paid at the time for either filing fees or services,
but subsequently the Association, in its regular course of business, paid
Murphy's fees. -
On December 19, Dearman absented himself from work for half a
day, and filed the signed charter with the Secretary of State of Rhode
Island, personally paying the filing fee of $7 for which he was reim-
bursed by the other incorporators later in the day. -
- On the evening of December 19, the incorporators met at the-home
of one of their number, where they designated George Clark, Jr., as'
temporary chairman, Earl Dearman as temporary treasurer; and
Charles Rondina as temporary secretary. They then decided to fix
the initiation fee at $1 and to allow the matter of monthly dues to be
determined later and also decided to call a mass meeting of all em-
ployees at a local hall the next evening. Notice'of this meeting was
not posted but was circulated by word of mouth and between 150 "and
200 employees attended. Clark called the meeting -to order and--ad=
vised those present that the purpose of the meeting was to announce
the incorporation of the Association. Numerous employees, includ-
ing Pohle, made remarks from the floor and after a short time the
meeting was recessed for the purpose of soliciting memberships. A
substantial number of those present signed application cards and,paid
the $1-initiation fee. During the holiday period, from-December 20
until after January 1, the Association confined its activity to soliciting
memberships. - - -
The second meeting was held on January 3, 1941, in the same hall
as the December 20 meeting. Clark, as temporary chairman, had re-
quested Murphy to prepare a constitution and bylaws for the Associa=
tion, and to attend the meeting in person to explain to the membership
how the Association should function. By that time the Association
had a total membership of 225, of whom 124 were present. Murphy
addressed the meeting at length on the necessity of the Association's
functioning wholly independent of the respondent, stating among other
things "that it would depend on the members themselves" whether the
Association'would become an affiliated union.
Following Murphy's remarks, the Association elected its permanent
officers. Otto Theodore Johnson, who had been appointed by the
respondent as secretary to the Plan General Committee in. 1940 at that
body's request, was elected secretary. None of the other officers of
the Association had been active under the Plan. E. Ducharme, elected
to the executive committee of the Association, had been elected to serve
on a-Plan committee for 1941 but had refused to serve under the Plan
on the ground that it'was unlawful. A committee was also appointed
1130 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to study the constitution and bylaws that had been proposed by
Murphy,'and to report back to the next meeting.
At the next meeting held on January 13, the constitution previously
suggested by Murphy was taken under consideration, and, after a
number of amendments, was adopted. The bylaws were resubmitted
to a committee of nine, made up of three men from each company
division. Pohle was one of these as was G. Gorton, both of whom had
previously served under the Plan. On January 20, the Association
held another meeting. The bylaws as rewritten"by the committee
were adopted; some further amendments were made to the constitu-
tion; Ducharme was elected business agent; Barrett was elected ser-
geant-at-arms; and a resolution was adopted directing the executive
council and the business agent to present to the respondent the "aims"
of the Association.
On January 21, 1941, Ducharme met with Fletcher, informed him
of the organization of the Association, and requested a meeting with
the management on the following day. This request was granted, and
on January 22, Fletcher met with the Association's representatives
in the respondent's office. The Association demanded recognition as
exclusive bargaining agent for the respondent's employees. Fletcher
demanded proof of its membership. Accordingly, they agreed that
the Association membership cards should be checked against the pay-
roll records of the respondent, by representatives of both. They also
agreed that representatives of the Association should be docked for
time spent on Association business during usual working hours. Those
present who were not then off duty authorized, in writing, such deduc-
tions from their pay.
On January 27, 1941, the respondent and the Association held
another meeting to discuss the result of the membership check. Erick-
son, assistant treasurer of the respondent, announced that the check
of the cards against the pay roll had revealed that the Association did
not represent a majority of all the employees but did represent a
majority of the employees in the Plant, Service Station, Appliance
Department, Meter Reading Department, and Office Maintenance
Force. Fletcher thereupon offered to recognize the Association as
exclusive bargaining representative for the employees in those depart-
ments only. The representatives of the Association refused to
accept this limited recognition without special authority from the
membership.
Meanwhile, the 1941 committees of the Plan had continued to per=
form their usual functions. On January 29, Fletcher, during a meet-
ing with one of the Plan committees, stated that although the Plan
might have to be terminated as a bargaining agency, it could still serve
a useful purpose by promoting the credit union and other beneficial
PROVIDENCE GAS COMPANY 1131
employee matters, without bargaining on wages, hours, and working
conditions. The minutes of this meeting recite the following in this
connection :
Mr. Fletcher discussed at length with the committee the present
and possible future status of the Negotiation Agreement, in view
of the recent formation of a "Protective Association of Gas Utility
Workers, Inc," by a present minority group of employees.
On the same day, January 29, 1941, Jordan informed Fletcher that
he was president of the Union and warned him that if the respondent
recognized the Association, the C. I. O. would "fight." The next day,
the respondent received a letter from the Union, advising the respond-
ent that the employees in the production department (Plant) had
designated the Union as their collective bargaining agent, and re-
questing that a date be set for a conference. Because of the demands
of the Association and the Union, and upon the advice of the Board's
Regional Director, the respondent prepared and filed with the Re-
gional Office a petition for investigation and certification of represen-
tatives. On January 31, 1941, Fletcher advised representatives of the
Association and the Union that he had filed the petition and requested
them to cooperate in determining the representation question and to
avoid friction between their respective members.
On February 3, the membership of the Association decided to reject
the respondent's above-noted offer to recognize it as representative of
some of the employees. On February 4, 1941, Fletcher met with
the General Committee under the Plan, pursuant to its request, to
discuss certain proposals concerning holidays. Fletcher refused to
discuss this matter with the committee, stating that another organiza-
tion was claimaing to represent the respondent's employees, and that
action on the request should be deferred until the collective bargaining
agent was-identified "by the proper authority."
On February 5, pursuant to the demand of the Union and pursuant
to his conferences with the Regional Director, Fletcher caused 20
copies of the following notice to be posted throughout the respondent's
premises :
Section 7 of the National Labor Relations Act states :
[section quoted in full]
It is the policy of this company to comply scrupulously with the
letter of this Law: The company and its supervisors have no
interest in any employees belonging to, or refraining from be-
longing to, any organization of their own choosing.
On February 11, the respondent, the Association, the Union, the
Brotherhood, and the Regional Director held a preliminary confer-
1132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ence with respect to the respondent's petition for investigation and
certification of representatives and after a short discussion agreed to
meet again on February 19.
On February 13, Jordan complained to the respondent that the
Plan was interfering with the C. I. O. Fletcher thereupon posted the
following notice throughout the company premises :
The Collective Bargaining Agency for the employes of the
Providence Gas' Company is being determined by the National
Labor Relations Board.
Until the determination is made, any grievances or matters
pertaining to hours, wages or working conditions should be
presented individually by the employee to his or her department
head.
Fletcher sent a copy of this notice to the Regional Director.
On February 19; the above-named parties met again, as scheduled,
to discuss the representation petition. The Union contended that
there should be a separate election for each division. The respondent
was willing to agree to separate elections, but the Association insisted
upon a company-wide election. At the close of the meeting, the
Regional Director recommended disestablishment_ of the Plan. Ac-
cordingly, the respondent posted appropriate disestablishment notices
the following day, and has not dealt with the Plan since that time.
On March 6, the :Union filed its original charge in this proceeding.
It appears that, thereafter the Regional Director suggested that the
Association, be disestablished, that the .respondent was willing to
comply, that Murphy objected thereto, and that the respondent ac-
cordingly refrained from acting on the proposal. On July 3, the
Board issued its complaint herein.
B. Concluding findings
The only issue presented is whether the Association is the successor
of the company-dominated Plan, and consequently itself company-
dominated. We are guided in determining this issue by the principle
laid down in the Westinghouse case 14 and embodied in numerous
14 Westinghouse Electric d Mfg Co v N L R B, 112 F ( 2d) 657 (C C A 2) (aff'd per
curiam 312 U S 600, enf'g as mod. Matter of Westinghouse Electric cC Mfg. Co. and
United Elects ical Radio cC Machine Workeis of America, etc, 18 N L. R. B 300)
. . the situation is ruled by National Labor Relations Board v Newport News Ship-
building cC Dry Dock Company , 308 U . S 241. There also there had been a "Plan"
in which company representatives had participated , and which became unlawful after
the passage of the Act , there also this "Plan" had been succeeded by an unaffiliated union
The court . . . held that the successor ought to be "disestablished" . . . The reason
for this was that, although the new union would be lawtul , if freely formed , it had in
fact arisen out of the earlier organization , and the company had done nothing to marls
the separation between the two, and publicly to deprive the successor of the advantage,
of its apparently continued favor . It is true that in that case there was somewhat less
PROVIDENCE GAS COMPANY 1133
Board and court decision. We are satisfied, upon the entire record,
that the Association did not "in fact" arise from, or seem "to the em-
ployees at large to have evolved out of" the Plan, in such manner that
the employees would "suppose that the Company approves the [As-
sociation], as it did the [Plan]." I-' Prior to the formation of the
,Association, a substantial number of the employees were dissatisfied
with the Plan and advocated the formation of a union free of com-
pany influence. It is plain from the record that the dissatisfaction
obtaining in the instant case was not motivated by employer compul-
sions to effect merely a surface reform of a dominated labor organiza-
tion and therefore to protect from possible attack a continuation of
such company domination. On the contrary the dissidence reflected
an honest rebellion against the respondent's domination and a desire
for bona fide representation. Nor did the employer compulsions to
which the employees had been habituated,under the Plan dictate the
formation of an unaffiliated organization. As described above, the
representatives, themselves, were divided in advocating the methods
to be adopted in securing their freedom for self-organization. Thus,
some of the representatives proposed an incorporated labor organiza-
tion, others advocated the Union, while others proposed reformation
of the Plan. Pohle led the group seeking acceptance of a new inde-
pendent organization. Jordan and Roche put forward the Union as
the organization which ought to be selected to represent the employ-
ees. The less drastic action of modifying the Plan gained no support.
In these circumstances, we do not believe that the General Committee,
acting under employer compulsions inherent under the Plan, dictated
the formation of the Association or directed the desires of the rank
and file of the employees to the formation of an unaffiliated labor
organization. Indeed, upon Murphy's counsel, and having advised
the employees that their services were unavailable, the representatives,
under the Plan refrained from further activity. Employees wholly
unconnected in representative capacity with the Plan undertook the
initiation of the Association. We conclude that the choice of the
Association resulted from a free exercise of the employees' right to
separation between the old and the new than in the case at bar ; the union was in foi m
merely a "revision " of the earlier "Plan", and its constitution had been prepared in
part at any rate , by executives of the company. But that was not the circumstance which
counted , as we understand it ; it was rather that the employees at large had not been
advised that the company was wholly indifferent whether they joined the new union,
and that, as it might , and probably did, appear to be a successor of the,old , the separation
should have been made plain , and with it the discontinuance of any continued countenance
from the employer . The theory is that in cases such as this, where an unaffiliated union
seems to the employees at large to have evolved F out of an earlier joint organization of
employer and employees , the Board may take it as datum, in the absence of satisfactory
evidence to the contrary , that the employees will suppose that the company approves the
new, as it did the 'old, and that their choice is for that reason not as free as the
statute demands. ,
" I bid. ,
1134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
self-organization without either direct interference by the respondent
or vestigial interference inherent in, and continuing from, earlier com-
pany domination. The Association, like the Union, was the product
of a reaction against company domination.'s
In reaching this conclusion, we have not been unmindful of the
doctrine of the cases so persuasively set forth in the, dissenting
opinion and we wish to emphasize that we are not overruling or
departing from these decisions in any respect. Stripped of metaphor,
the proposition for which those cases stand is, simply this: When it
has been established that a labor organization is company-dominated
and such organization in turn undertakes the formation of a new
union, continuing domination can be inferred, even in the absence of
acts of employer interference with the new union. The reasoning of
those decisions is that the prior conduct of the employer gives the
employees' reasonable ground for viewing the second organization as
his creature, thereby impairing their opportunity to make an untram-
meled choice of representatives. _
It is urged that this doctrine applies to the instant case, since the
respondent never publicly took any steps to make it clear that the
formation of the Association did not command its approval. As we
have pointed out, however, the record in this case does not support the
conclusion that the Association was sponsored by or might have
seemed to the employees to have evolved out of the admittedly illegal
organization.
The reasoning of the dissenting opinion seems to be, however, that
an inference of successorship can be drawn from two or three cir-
cumstances which might indicate that the Plan was the parent of the
Association. The chief circumstance relied upon is that, after the
publicizing of Attorney Murphy's advice that Plan representatives
could not participate in the formation of a new organization, rank
and file employees went to Murphy's office and signed the petition for
incorporation of the Association. The dissent apparently infers
from this circumstance that incorporators of the Association went to
Murphy's office at the instigation of some Plan representatives. But
the present state of the record forecloses any possibility of inference
or speculation. It was recognized by all parties that the case turned
upon the relationship of the officers of the Plan to the creation of a
new organization, and on this point direct testimony was offered
through one of the witnesses to show that the incorporators of the
Association who went to Murphy's office on December 18 did so at
the instigation of certain officers of the Plan. This testimony, how-
ever, was contradicted by other witnesses, and the Trial Examiner
after weighing these conflicting statements disbelieved this testimony.
16 Cf Matter of Western Union Telegraph Co. and Telegraph Workers Independent Union
et at, 3d N. L R B. 812.
PROVIDENCE GAS COMPANY 1135
• Since it is apparent from the dissenting opinion that this finding
of fact by the Trial Examiner is accepted, we are unable to under-
stand a conclusion which supports the version testified to by this
crucial witness 'and yet discredits his testimony. In other words, if
the-Trial Examiner correctly resolved conflicting testimony between
Wheeler on the one- hand and Justin, Murphy, Pohle, and Barrett
on the other by, disbelieving Wheeler, it would hardly be consistent
for this Board to pay lip service to this finding and yet hold that
the only conclusion logically resulting from it cannot be accepted
because of circumstances tending to corroborate Wheeler.
We therefore, find, as did the Trial Examiner, that respondent has
not interfered with, supported, or dominated the formation: or ad-
ministration of the' Association. We shall, therefore, dismiss the
complaint."
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
- 1. 'Providence Gas Company is engaged in commerce, within the
meaning of Section 2 (6) of the Act. -
2. Local 12133, District 50, United - Mine Workers of America,
affiliated with the Congress of Industrial Organizations, and Pro-
tective Association of Gas Utility Workers, Inc., are labor organiza-
tions, and Providence Gas Company Employee Representation Plan
and Providence Gas Company Negotiation Agreement were labor
organizations, within the meaning of Section 2 (5) of the Act.
3. The respondent has not engaged in unfair labor practices, with
respect to Protective Association of Gas Utility Workers, Inc., within
the meaning of Section 8 (1) and (2) of the Act.
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that
the complaint against the' respondent, Providence Gas Company,
Providence, Rhode Island, be, and it hereby is, dismissed.
CHAIRMAN MILLIS dissenting :
I am of the opinion that the Association is the illegal successor of
the Plan since the employees were not "as free as the statute de-
" Since the Plan had been disestablished pursuant to the Regional Director 's recom-
mendation , and the respondent has already advised the employees of its intention not
to infringe the guarantees contained in Section 7 of- the Act, we find that it will effec- -
tuate the policies of the Act to refrain from making findings of unfair labor practices
with respect to the Plan and issuing the usual order thereon. Cf Matter of Shenandoah-
Dives Mining Co. and International Union of Mine , Mill c& Smelter Workers, etc. 11
N. L R B 88-5. 1 -
1136 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mands" 11 in choosing the Association to represent them. At no time
during the formative period of the Association did the respondent
advise the employees -at'large that it was "wholly indifferent" to their
brgahizational efforts: - At no.time during this critical period-did it
make plain to the employees the separation between the Plan and
the Associatiofi.19 I- am satisfied from the record that in fact the
Association appeared to the employees to be the offspring of the
Plan and that the employees chose the Association because of employer
compulsions which were permitted to carry over from the-Plan to
the Association.
The Plan, as the majority correctly assumes, was a dominated and
illegal organization . The respondent created the Plan in 1933, re-
tained formal joint control over its administration until 1937, and
continued to support its existence until February 1941 after the
Association•had been.established on a'firni footing. The respondent
took no steps,during the entire period from the effective date of the
Act to February 1941, after the Association had been launched, to
disestablish the Plan or to apprise the- employees that it proposed
to cease its interference with their choice of bargaining representa-
tives. • On the contrary, the continued existence of the Plan with
full recognition and support by the respondent presented a continuing
obstacle to freedom of choice, continuing unlawful. interference with
the employees' right to self-organization.
My difference with the majority consists essentially in the appli-
cation of well-established principles as to which we are in agreement.
The effects of employer coercion, inherent in the establishment and
maintenance of a company-dominated organization, generally survive
the illegal organization. These coercive effects can be dispelled only
by the re-creation of conditions in which genuinely free choice can
be exercised. To this end, it is essential , if an ostensibly new organi-
zation has been set up, that there be "a complete break between the
two unions and a disestablishment of the objectionable union," 20 and
that the employees be "effectively and unmistakably informed of such
action." 21
18 Westinghouse Electric & Mfg Co v N L R B , 112 F ( 2d) 657 ( C. C A 2).
19 Ideni.
-Magnolia Petroleum Co v N. L R B , 115 F ( 2d)- 1007. Thus , courts have recog-
nized the necessity of "wiping the slate clean " ( N. L R B v Newport News Ship-
building and Dry Dock Co, 308 U . S. 241 ) ; "clearing of decks" ( Westinghouse Electric
& Mfg Co v N L R B , 112 F (2d) 657 (C C A 2)) ; "absolute and public cleavage
between the old and the new" (Western Union Telegiaph Co. v. N. L R B, 113 F (2d)
D92 (C C A 2)) ; clearing the field "of the of lgmal illegal growth ," thus rendering it
`suitable fox sowing the seeds of an undominated - body" ( E I. Dupont de Nemouts & Co.
v -N L R B , 116 F ( 2d) 388 ( C C A , 4 )) ; washing out "the virus of control",
(N L it. B . v H. E Fletcher Co, 108 F (2d) 459 (C C A 1) ).
21 Magnolia Petroleum Co. v. N. L . it. B., supra.
PROVIDENCE GAS COMPANY 1137
I do not believe that the employees in this case have been given the
minimal opportunity "to start afresh." 22 Not only did the Plan
continue in existence with full recognition and support-on the part of
the respondent, but the Association was sponsored and launched in the
first instance by members of the General Committee of the Plan. It
is undisputed that the General Committee, at a regular meeting on
the respondent's premises, first considered the desirability of sup-
planting the Plan with an unaffiliated labor organization and that
a committee of Plan representatives, appointed by the General Com-
mittee, first approached Murphy in their.official capacity for advice
concerning the organization of an unaffiliated union. These activi-
ties of the Plan representatives were made known to the employees.23
Moreover, Pohle, the outgoing chairman of the Plan, addressed the
first general meeting of the Association ; 'Johnson, the outgoing secre-
tary of the Plan, became the secretary of the Association; and two
Plan representatives served on the Association's bylaws committee.24
Thus, during a period in which the respondent had done nothing
to reestablish a condition of freedom, the Association succeeded the
illegal Plan with strong indicia of connection between the two. In
these circumstances, the mass of employees, conditioned' by 8 years
of denial of their right to self-organization, could reasonably have
;assumed that the respondent favored the Association as it-'had
favored the Plan.25 "Timorous habit" 26 firmly molded by 8 years
of domination consequently may well have dictated their choice of
the Association.
In reaching a contrary conclusion, the majority, I believe, errs in
its appraisal of the respondent's failure to dissipate the effects of
the coercion inherent in the Plan, its failure to take any steps to
recreate an atmosphere of complete neutrality essential to genuine
freedom of self-organization. Similarly the majority fails to give
due weight to the ties between the Plan and the Association supplied
by the activities of Plan officials. -Instead, the majority emphasizes
the desire of Plan officials to eradicate the respondent's domination
22 N L R B v Neioport, News Shsplncilding and Di y Dock Cc , supra.
24 The majority, I believe, overlooks the testimony of Pohle and Barrett indicating
that a full report of the representatives' meeting, and the conference with Murphy on
December 16 was circulated via the employee "giapevine" on the following day
241 disagree with the majority that all these elements of continuity between the Plan
and the Association are rendered insignificant merely because the Plan representatives,
having launched the Association, deliberately stepped aside in order to conceal the
obvious connection between the two The employees who thereafter assembled at Murphy's
office to sign the charter of the Association were plainly impelled by the advice received
from these same official representatives under the Plan.
25 The fact that two Plan representatives advocated affiliation with the C I. 0 is
immaterial since the formation of an unaffiliated labor organization was an official
project of the Plan, undertaken by Plan representatives in their official capacity
26 F L R -B v Pacific (Greyhound Lanes, Inc, 303 U S 272, quoting Matter of Pacific
Greyhound Lines,' Inc and Brotherhood of Locomotive Firemen and Enganemen, 2
N. L R B 431
463892-42-vol. 41-72
1138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of their activities. That the Plan representatives entertained this
desire to break the shackles of the- respondent's domination proves
no more than that employees normally desire to be free of coercion.
Assurance of conditions under which such normal desires may freely
be exercised is the essential purpose of the Act. In the circum-
stances of this case 'it does violence to common experience to conclude
that the employees acting alone have successfully released themselves
from long-continued effects of domination merely on the ground that
pent up desires for self-organization found some expression. The
basic fallacy of the view of the majority consists in the assumption
that the expression of an intention to be free suffices in itself to
establish conditions in which a free choice can be made.
The majority falls further into error in considering, as evidence
of freedom of choice, the fact that the individual representatives
under the Plan entertained different opinions regarding the manner
in which domination should be dissipated. While some of the repre-
sentatives were adherents of the Union, 21 it is nevertheless true that
the respondent's failure to disestablish the Plan coupled with the Plan's
sponsorship of the new organization would have made vulnerable
any such new organization, whether or not affiliated. It is the cir-
cumstance of clear connection between old and new in the absence of
restored neutrality that is decisive. The coincidence of these factors
infect the ostensibly new organization with the "virus of control." 25
That many of the employees, including the organizers of the Asso-
ciation, testified that they chose the Association to'escape the respond-
ent's control is immaterial. Both the courts and the Board have held,
contrary to the view implicit in the majority decision herein, that
such testimony is entitled to no weight in the presence of affirmative
evidence of company domination.21
For the foregoing reasons, the Board should find that the respond-
ent engaged in unfair labor practices within the meaning of Section
8 (1) and (2) of the Act with regard to both the Plan and the
Association, and issue the order appropriate to such findings.
27 Actually , so far as the record shows , the only Plan representatives ( out of a total
of 44 who served in 1940 or were elected as committeemen for 1941) who joined the
Union before the Association was fully organized were Jordan and Roche , both of whom
were absent from the meeting at the British Club where the incorporation of a new
otgamzation was discussed There is no evidence that any person at this meeting advo-
cated affiliation with the Union as an alternative to the formation of a new unaffiliated
organization Nor is there any evidence that any of the representatives under the Plan
at any time advocated a revision of the Plan
2e N. L R B v. H. E. Fletcher Co., 108 F. (2d) 459 (C. C A. 1)
N. L R. B. v. Newport News Shipbuildting and Dry Dock Co., 308 U S. 241 ;
N L.,R B. v. Automotive Maintenance Machinery Co, 62 S. Ct 608 , rev'g 116 F (2d)
350 (C C. A 7) and enforcing Matter of Automotive Maintenance Machinery Company
and Steel Workers Organizing Committee, etc, 13 N L. R B 338; Bethlehem Steel Co.
et al v N. L R. B., 120 F ( 2d) 641 ( App D C ), enfg Matter of Bethlehem Steel
Corporation et al and Steel Workers Organizing Committee, 14 N L. R. B 539