Southwest Mississippi Electric Power Association

National Labor Relations Board - Board Decisions

Dec 16, 1954

110 N.L.R.B. 1884 (N.L.R.B. 1954)

1884 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
diction. No explanation appears for this exclusion of transportation
firms from the "indirect outflow" standard and, indeed, we can find
no logical reason for its adoption. Why should stricter standards be
applied to enterprises so inherently interstate in character as the
transportation industry than to firms whose impact on commerce is
less direct? A nontransportation firm which furnishes goods or serv-
ices to other enterprises engaged in interstate commerce will, if those
goods or services meet the minimal amounts required under Jonesboro
be subject to our jurisdiction. Thus a company will be within our
jurisdiction if it sells materials valued at $100,000 to a second com-
pany in the same State which then sells products valued at more than
$50,000 outside the State. But the trucking firm which transports
these goods to the second firm will not come within our jurisdiction
even if its total services to that firm amount to many times $100,000.
Or, a firm which provides services not "directly utilized in the proc-
esses, services, or processes of such enterprises" will be subject to the
Act if those services are not transportation and are valued at more
than $200,000. But, if the service is, in fact, transportation, and is,
as usually the case, vitally necessary to the operation of the customer's
plant, it may amount to $200,000 or $500,000 and still not bring the
trucker within our jurisdiction. We cannot agree that such an exclu-
sion can be justified in fact or in law.
Moreover, aside from the. defects of the standard applied in this
case, we do not agree that sufficient facts are before us to make a juris-
dictional determination under that standard. The majority opinion
apparently takes note only of the $40,520 in value of services rendered
by the Respondent outside the State of Tennessee. But the record
shows that the Respondent's operations within that State amount to
approximately $77,000 in value. Although no breakdown of these
receipts is available in the record (hearing having been held before
the adoption of the new standards), it may be that a sufficient portion
of these receipts come from "link" operations which, according to the
decision herein, if combined with interstate receipts would meet the
$100,000 standard. For this reason, accordingly, we would seek fur-
ther information as to the operations of the Respondent rather than
dismissing the petition forthwith.
SOUTHWEST Mississippi ELECTRIC POWER ASSOCIATION and LOCAL
UNION 605, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
AFL. Case No. 15-CA-4f73. December 16, 194
Decision and Order
On September 25, 1953, Trial Examiner Max M. Goldman issued his
Intermediate Report in the above-entitled proceeding, finding that the
110 NLRB No. 245.
SOUTHWEST MISSISSIPPI ELECTRIC POWER ASSOCIATION 1885
Respondent had engaged in and was engaging in certain unfair labor
practices within the meaning of the Act and recommending that it
cease and desist therefrom and take certain affirmative action. There-
after the Respondent filed exceptions to the Intermediate Report.
After the Respondent filed its exceptions, the Board issued decisions
in three cases,' deciding in each not to assert jurisdiction over a co-
operative association distributing electrical energy. Shortly there-
after, on December 12, 1953, the Respondent, a distributor of elec-
trical energy, filed a petition 2 to reopen the record in this proceeding.
The Board duly considered the matter and, on January 28,1954, issued
an order granting the Respondent's petition.
Pursuant to the Board's order, Trial Examiner Goldman held fur -
ther hearing on June 29 and 30, 1954. On August 20, he issued a Sup-
plemental Intermediate Report detailing the facts relating to the
Respondent 's business operations . A copy of the Supplemental In-
termediate Report is attached hereto. The Charging Union then filed
a brief objecting to: The Board's January 28 order; the Supple-
mental Intermediate Report; and the application here of the Board's
new jurisdictional standards for public utilities as announced on July
15,1954.9
1Inter-County Rural Electric Cooperative Corporation , 106 NLRB 1316 ; Coles-Moultrie
Electric Cooperative, 107 NLRB 30 ; and Upshur Rural Electric Cooperative Corporation,
107 NLRB 207.
9 The Respondent noted therein that its answer had admitted that the Respondent was
engaged in commerce within the meaning of the Act , and that it had stipulated that it fur-
nished services in excess of $50,000 to firms engaged in interstate commerce. The Re-
spondent argued, however , that the changes in the Board 's jurisdiction criteria , announced
in the three noted cases , constituted grounds for granting its request to have the Board
hear particularized evidence as to the effect of the Respondent 's operations upon interstate
commerce.
8 The Charging Union objects to the Board 's action in reopening the record , claiming
that it was thereby deprived of due process . The Union also contends that the Board's
Order and the Supplemental Intermediate Report do not satisfy the requirements of either
the Administrative Procedure Act, section 8 (b) (5 U. S. C. A. section 1001, et seq.) or
the Board 's Rules and Regulations , Series 6, as amended, Section 102.45. The Union
claims that the sections noted require an Examiner to issue a report containing findings
of law as well as fact. The Union then argues that the Board 's order was improper be-
cause it only required the Examiner to make fact findings and the Supplemental Inter.
mediate Report is defective because it contains no legal conclusions
In considering the Union 's contentions , we note, among other things , that the Union
did not oppose the Respondent 's petition to reopen the record and that the Union has
waited approximately 6 months before submitting objections to the Board 's order. How-
ever, notwithstanding the Union 's failure to pursue the protection of its own interests
with diligence , the Union has had full opportunity to present the facts and litigate on all
aspects of the jurisdiction issue here involved . Furthermore , in each case which comes
before it this Board considers the issue of jurisdiction as though exceptions thereon had,
in fact, been filed by the opposing interests . In these circumstances , we find that the
Union has not been prejudiced in any way by the January 28 order or by the Supplemental
Intermediate Report In this posture , the following pronouncement by Learned Hand in
Pay v. Douds , 172 F. 2d 720 ( C. A. 2), is particularly apt, "The Constitution protects
procedural regularity , not as an end in itself, but as a means of protecting substantive
interests . . . . The considerations are particularly appropriate when we consider that
the Board must conduct its duties in a summary way ; not, we hasten to add, without
observing all the essentials of fair administration, but with as much dispatch as is con-
sistent with those " Accordingly , as we have found that- the substantive merits of the
Union have been presented and considered in full, we hereby reject its objections to the
form of the Board's order and the Supplemental Intermediate Report
1886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
To the extent here material the Board has reviewed the rulings
made at the hearings and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed. The Board has considered
the Intermediate Report, the exceptions thereto, the Supplemental
Intermediate Report, the Union's brief, and the entire record in this
proceeding, and finds that assertion of jurisdiction over the Respond-
ent's operations is not warranted.
The Respondent is a corporation chartered by the State of Missis-
sippi and financed through the Rural Electrification Administration.
The Respondent distributes electrical energy to approximately 7,300
customers within the State of Mississippi. The Respondent generates
no electricity and annually purchases power valued at approximately
$79,000 from various electrical power generating companies. This
power flows through four metering points within the State of Missis-
sippi. The Respondent otherwise purchases supplies in the amount
of approximately $105,000 per year. The Respondent's annual sales
of electricity during each of the 1-year periods covered in the record
did not exceed $440,000. We find therefore that the Respondent's
operations do not have sufficient impact upon interstate commerce to
warrant exercise of the Board's jurisdiction 4 Accordingly, we shall
dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER PETERSON , concurring specially :
But for the fact that I deem myself bound by the majority's earlier
decision in the Greenwich Gas case, I would join in Member Murdock's
cogent dissent here. While I fully agree with him that to denominate
this REA cooperative a purely local enterprise is to magnify surface
appearances over more fundamental characteristics, I think the same
dichotomy was present in the Greenwich Gas case. In so saying, I do
not mean to suggest that Member Murdock should also regard himself
as bound; after all, that is a rather ill-defined, self-imposed rule of
convenience, to which none of us is irrevocably committed. Indeed,
in my separate opinion in the Breeding Transfer case I reversed the
position I took in the three cases cited by the majority (footnote 1),
and I joined Member Murdock in dissenting in Greenwich Gas. And
by deeming myself bound here, I do not imply that if at some appro-
priate time another Member came to share our views I would agree
to dismiss a proceeding in which the legal jurisdictional facts were
similar to those here presented.
MEMBER MURDOCK, dissenting :
In Greenwich Gas Company, 110 NLRB 564, a majority of my col-
leagues "determined that in future cases the Board will assert juris-
4 The Greenwich Gas Company and Fuels, Incorporated, 110 NLRB 564
SOUTHWEST MISSISSIPPI ELECTRIC POWER ASSOCIATION 1887
diction over local public utility and transit systems affecting com-
merce whose gross value of business is $3,000,C00 or more per annum."
I set forth, in that case and in my dissenting opinion in Breeding
Transfer Company, 110 NLRB 493, the urgent and compelling reasons
of law and good administration which make this standard and the new
jurisdictional policy of which it is a part, completely unacceptable.
I would not add to those comments here, were it not that the instant
case has ramifications which extend far beyond those discussed in my
prior dissenting opinions.
In the Greenwich case, the majority stated that "our new jurisdic-
tional standard is well calculated to promote the Board's established
policy of limiting its jurisdiction to enterprises having a pronounced
impact upon commerce without making any unwarranted inroad upon
the Act's protection of utility and transit employees." [Emphasis
supplied.] Moreover, the standard itself, as quoted above, speaks of
"local" public utilities.
Here the majority uses this new born restriction to dimiss a com-
plaint concerning unfair labor practices allegedly committed by a
Rural Electrification Cooperative. This Cooperative, according to
the uncontested facts, serves approximately 7,300 customers in the
Southwestern part of the State of Mississippi, and maintains and oper-
ates approximately 2,200 miles of power lines. Of the Cooperative's
gross sales of $439,0G0 in 1953, approximately $48,000 consisted of
sales to industrial and governmental purchasers including a number of
oil companies, railroad and transportation firms, and a lumber com-
pany selling more than $300,000 annually to purchasers outside the
State of Mississippi. In a representative month in 1953, 40 percent
of the kilowatt hours sold by the Cooperative went to commercial,
industrial, and utility purchasers.
The Cooperative is financed through the Rural Electrification Ad-
ministration and, at the time of hearing, had an unpaid loan from
that Administration amounting to $3,000,000. The electrical energy
distributed by the Cooperative is purchased from the Mississippi
Power and Light Company and its power lines are tied into the system
of the latter utility. The Mississippi Power and Light Company, in
,turn, is a part of Middle South Utilities, Inc., and not only generates
electricity itself but purchases electricity from the Tennessee Valley
Authority and both purchases and sells electrical energy to Arkansas
Power and Light Company, Louisiana Power and Light Company,
New Orleans Public Service Company, and the Mississippi Power
Company. Without going into further detail, the record also shows
that these companies and others are tied into a vast interstate grid in
which many REA cooperatives as well as this Respondent serve as
distribution companies.
1888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In my dissenting opinions in the Breeding and Greenwich cases, I
set forth the history of consistent Board assertion of jurisdiction over
public utilities and the long line of judicial approval of that action .5
Indeed, the Supreme Court has specifically affirmed the assertion of
such jurisdiction despite the fact that the utility may be confined, in
its actual operation and location, to 1 city or 1 State.' The first
breach in that line of precedent came in the past year and a half when
the Board dismissed, over my protest, several cases involving coop-
eratives such as found herein.' It is clear, therefore, that the previ-
ously quoted statement of the majority that their new $3,000,000
standard "promotes" a long-established policy of the Board is far
from actual fact. The instant case, as the other recent dismissals of
petitions involving utilities, stands alone and in opposition to that
'consistent policy.
What then, of the majority declaration that the new standard does
not make "any unwarranted inroad upon the Act's protection of util-
ity and transit employees"? This, of course, is subject to a definition
-of what is "unwarranted" in view of the evident motivation behind
the new jurisdictional standards as a whole to transfer authority from
the Federal Government to the States. But the actual question is-
What inroads does this standard make upon the protection of com-
merce and the free flow thereof from the impact of industrial disputes?
While, as I have noted, the Greenwich decision, in establishing the
$3,000,000 standard for utilities, spoke of "local" utilities, the Re-
spondent here, of course, is hardly local in the sense of being confined
to one municipality. Nor do I think it follows that it is "local" (for
what that term is worth) in the respect that its customers are confined
to a part of one State. The record in this case is replete with evidence
and information showing that the Respondent is a part, in fact, of an
electrical production and distribution grid which crosses many State
lines and involves many large electrical utility companies. The im-
'portance of this aspect of the Respondent's business with respect to
the protection of commerce should not be understated. Stoppages
of the flow of electrical energy do not impede commerce only if they
occur where the electricity is being generated. If the stoppage occurs,
as it may as a result of a labor dispute, in any part of the production,
6 See for example , Gibson County Electric Membership Corporation, 65 NLRB 760 and
74 NLRB 1414; Graham County Electric Cooperative, 96 NLRB 684; Cherokee County
Rural Electric Cooperative, 92 NLRB 1181; and Black River Electric Cooperative , 98 NLRB
539.
6 See Amalgamated Association of Street Electric Railway & Motor Coach Employees of
America, Division 998, et al. V . Wisconsin Employment Relations Board, 340 U. S 383,
where the Court rejected contentions that States and municipalities should regulate labor-
management relations of utilities and noted that Congress, in fact, had specifically re-
jected such separate treatment
TInter-county Rural Electric Cooperative Corporation , 106 NLRB 1316 (October 28,
1953 ) and Coles-Moultrie Electric Cooperative , 107 NLRB 30 (November 10, 1953).
SOUTHWEST MISSISSIPPI ELECTRIC POWER ASSOCIATION 1889
transmission, and distribution system, the ultimate consumer and the
entire production, transmission, and distribution system may be af-
fected. A large number of REA cooperatives as well as the Respond-
ent herein are distribution outlets for the electrical grid with which
the Respondent is attached. We may assume that these cooperatives,
as well as the Respondent, will not henceforth be subject to the re-
straints and protections of the Act for the records of the Rural Elec-
trification Administration show clearly that none of the approxi-
mately 1,000 cooperatives distributing electricity under that program
will or can meet the $3,000,000 standard imposed by my colleagues.
It is not only the farm, commercial, and industrial consumers served
by the Respondent, accordingly, who are now exposed to the hazards
of interruptions caused by industrial disputes but a considerable por-
tion of our economy. According to reports of the REA : 8
As of December 31, 1954, REA electric borrowers reported
they were operating 1,178,515 miles of line and distributing elec-
tric service to 3,665,966 consumers. This represented an increase
of 89,738 miles and 252,559 consumers over 1950. About 67 per-
cent of all consumers at the end of the year were estimated to be
farms, the remainder being non-farm residences and other rural
establishments. . . .
By the close of 1951, 1,016 REA-financed electric systems had
been energized and were in operation in 46 states, Alaska and the
Virgin Islands.
I submit that distribution of vital electric service to more than 3.5
million consumers is too vital and too large a portion of our national
economic life to expose to the possibilities of interruption from indus-
trial disputes.
The importance, indeed, of utilities such as the Respondent is a
fact which has been recognized by the Federal Government time and
time again. The Tennessee Valley Administration, from whose facili-
ties a part of this Respondent's electrical energy is purchased, and the
Rural Electrification Administration itself, under which this Re-
spondent was put in business are evidence of that concern.
Accordingly, because the Respondent is clearly engaged in com-
merce as defined in the amended Act, and because application of the
$3,000,000 yearly gross receipts test to the Respondent and other
utilities of its type will unnecessarily and appreciably endanger the
free flow of such commerce, I must dissent from the refusal to assert
jurisdiction.
81951 Annual Statistical Report of the REA, page II.
338207-55-vol. 110-120
1890 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon a charge filed by Local Union 605, International Brotherhood of Electrical
Workers, AFL, herein called the Union, the General Counsel by the Regional Di-
rector for the Fifteenth Region (New Orleans, Louisiana), of the National Labor
Relations Board herein called the Board, issued his complaint dated December 18,
1952, against Southwest Mississippi Electric Power Association, herein called the
Respondent, alleging that the Respondent had engaged in and was engaging in
unfair labor practices affecting commerce within the meaning of Section 8 (a) (1),
(3), and (5) and Section 2 (6) and (7) of the Labor Management Relations Act,
1947, 61 Stat. 136, herein called the Act. Copies of the complaint and the charge
together with notice of the hearing were duly served upon the Respondent and the
Union.
With respect to unfair labor practices, the complaint alleges in substance that:
(1) The Respondent has from about October 15, 1951, engaged in certain acts of
interference, restraint, and coercion; (2) discharged Robert F. Ross on or about
March 27, 1952, for discriminatory reasons; and (3) from on or about March 21,
1952, failed and refused to recognize the Union as the exclusive representative of
certain of its employees. The Respondent's answer denies the commission of unfair
labor practices.
Pursuant to notice, a hearing was held on February 24, 25, and 26 and May 12,
13, and 14, 1953, at Natchez, Mississippi, before the Trial Examiner designated by
the Chief Trial Examiner. The General Counsel and the Respondent were repre-
sented by counsel and the Union by its representative. Full opportunity to be
heard, to examine and cross-examine witnesses , and introduce evidence bearing on
the issues was afforded the parties. At the close of the testimony the General
Counsel and the Respondent presented oral argument . Briefs were not received from
any of the parties.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Mississippi corporation, having its principal office and place
of business at Lorman, Mississippi, is engaged in the distribution of electrical energy
to rural areas, maintains and operates approximately 2,200 miles of power lines,
and serves approximately 6,400 consumers in 9 counties in the State of Mississippi.
The Respondent is financed through the Rural Electrification Administration and
during the past 12 months has purchased materials valued in excess of $100,000, a
substantial quantity of which was purchased outside the State of Mississippi. Dur-
ing the same period, the Respondent made sales of electrical energy valued in excess
of $100,000, of which an amount valued in excess of $50,000 was sold to, among
others, California Oil Company, Sun Oil Company, Illinois Central Railroad Com-
pany, Yazoo and Mississippi Valley Railroad Company, Interstate Pipeline Com-
pany, the Natchez Civil Aeronautics Administration, and the United States Air
Corps. The Respondent concedes, and the Trial Examiner finds, that it is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 605, International Brotherhood of Electrical Workers, AFL, is a
labor organization admitting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. The events
In the latter part of January 1952, union activities first started among the Re-
spondent's employees. Some of the employees, including Walter E. Walker and
alleged discriminatee, Robert F. Ross, solicited their fellow employees to join the
Union and obtained signatures on union cards. Meetings of the employees were
held with Harry D. Williams, assistant business manager of the Union.
By February-6, Williams on behalf of the Union wrote the Respondent requesting
recognition as bargaining representative and also suggesting a consent election in
SOUTHWEST MISSISSIPPI ELECTRIC POWER ASSOCIATION 1891
the event the Respondent declined to recognize the Union. On February 13
Thomas D. Ainsworth, manager of the Respondent, replied stating that it was
impossible for him to take any action until he received instructions from the board
of directors, that the board of directors would next meet on February 21, and that
as soon as he received his instructions he would communicate with the Union.
In February or March, Ainsworth asked employees Richard Bailey and Dennis
White whether they had signed cards for the Union. Although they had by then
signed union cards, they denied having done so to Ainsworth, explaining at the
hearing that when Ross had obtained their signatures he told them to keep it secret.
Ainsworth thereupon stated that if they did not sign a card, they should not be-
cause someone was going to "get messed up." 1
During about the second week of March, Robert St. John, line superintendent who
is directly under Ainsworth in line of authority, discussed the Union with employee
Joseph L. Paige. St. John opened the conversation by asking Paige if he had heard
of the union activity that was going on and Paige stated that he had heard a little.
St. John then told Paige that he wanted to talk to Paige as a friend and tell Paige that
he wanted him, Paige, to "get this matter straightened out before someone got run
off." St. John explained to Paige, "you are a group of little men bucking up against
a big thing, you are beat before you start." St. John pointed out that he had heard
that Paige, Walker, and Ross were the instigators of the Union, that should the
Union lose they would be run off, and that the rest of the union men would be run
off as soon as replacements could be found. St. John gave Paige reasons for not
taking the matter up with Ross and Walker directly, and requested Paige to talk to
them and "get this matter straightened out before someone got run off." St. John
also stated that he knew "every move the union people" were making and, referring
to the first union meeting on January 26, stated that he knew, as was the fact, that
Paige, Walker, Ross, and employee Charles S. Moak were present?
About a week later Paige and Ross went to see Roger G. Davis, president of the
board of directors, and L. T. Ventress, a member of the board of directors, at their
respective homes. In the conversation with Davis, Paige asked Davis whether he
had heard of the union activity and Davis replied that he had heard a little bit about
it. Paige stated that he had heard that he, Walker, Moak, and Ross were consid-
ered the instigators and that they were going to be run off. Paige asked Davis if
he could tell them anything about it. Davis replied that he could not say anything,
that anything he might say could be used against him , and that it would be his word
against theirs . Davis did suggest that if they had some grievance, they should get
together with Ainsworth and the board of directors and thresh it out and that they
would like to see the matter settled among themselves without this other mess.
When Paige and Ross saw Ventress they informed him of essentially the same thing
that they had informed Davis. Ventress stated that he had heard a little about the
organizational activities but that he did not pay much atention to it. Ventress con-
tinued that the board of directors were dead set against the Union and if he found
out that they were involved he would be as hard against them as he would be for
them if they were not involved. Ventress also stated that the Union claimed to have
signed up a majority of the men but that the Respondent was taking that with a
grain of salt .3
3 These findings are based upon the credible testimony of employees Bailey and White.
Ainsworth testified on direct examination that he had asked Bailey and White if they had
signed membership cards for the Union. On cros§-examination Ainsworth testified that he
may have but did not recall asking Bailey and White whether each had signed a union
card and further that he did not recall stating that someone might get "messed up"
2 These findings are based upon employee Paige's credible testimony. St. John's ver-
sion of this incident was that he stated to Paige that he understood that union organiza-
tion was going on, that he asked Paige if there was anything to it, and that Paige replied
that he did not know anything about it. St. John explained that Paige having stated
that he did not know anything about the union activities he, St. John, decided that there
was no use saying anything more.
8 These findings are based upon Ross' and Paige's credible testimony. Davis' version
of this event was that he told Paige and Ross that he would be glad to listen to them
but that in his posit on he could not engage in a conversation in the presence of the two
of them ; that Paige and Ross mentioned that they were being accused of engaging in
union activities but he was unaware of their activities until then ; and that he did not
say anything one way or the other. The version Ventress gave was that Ross and Paige
informed him that they had engaged in union activities and inquired as to what effect
it would have on them. Ventress assured them that so far as he was concerned, if they
tended to their business it would have no effect on them.
1892 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
At a union meeting held on March 20, employees reported incidents which they
viewed as threats and coercion to Williams and William L. Hopper, International
representative of the Union. The next day Hopper and Williams saw Ainsworth
at the Respondent's office and took up with him the reports they had received from
the employees, pointing out that if the conduct reported to them persisted it would
be necessary for them to file unfair labor practice charges. There was also a dis-
cussion pertinent to the refusal-to-bargain allegations at this meeting. This aspect
of the meeting will be discussed hereinafter in the part of the report treating with
that subject.
About a week later, on March 27, Ross was discharged. St. John admitted that
he had learned from a conversation with James Nevels, a line foreman, prior to
Ross' discharge that Ross was acting for the Union. About 2 days after Ross'
discharge, according to Paige's credible testimony, St. John talked to him again
about union activities. St. John at that time asked Paige in the presence of Ains-
worth whether he had ever told Paige that he had heard that Paige, Ross, and Walker
were the instigators of the Union and that they would be run off. Paige declared
that St. John had so stated. St. John after insisting that he had not so stated, ad-
mitted to Paige that he might have made that statement. Paige then asked Ainsworth
what was going to happen to him, and Ainsworth replied that Paige had seen what
happened to Ross.4
Sometime following Ross' discharge Cammie E. Cain, a line foreman,5 circulated
a petition which he had prepared for employees to sign indicating a desire to drop
the Union. When Cain approached Paige for his signature, Cain stated that the
employees were not going to get a raise or a vacation until they signed the petition.
B. The discharge
Robert F. Ross was first employed by the Respondent in 1944 for a short period
of time, until he left for service in the Army. When he returned in the fall of 1946
he worked for about a year and left to go into business for himself. Early in 1948
he was reemployed by the Respondent and continued in that employment until March
27, 1952, when he was discharged. At the time of his discharge Ross worked as a
serviceman for an assigned area and his duties included meter reading , bill collect-
ing, pulling and setting meters, and answering trouble calls to maintain service. The
General Counsel alleges that Ross' discharge on March 27 was in violation of the
Act. The Respondent- contends that Ross was discharged for insubordination and
for doing certain wiring in violation of-its rules.
Ainsworth, manager of the Respondent, presented the Ross case to the board of
directors' meeting on the evening of March 27 recommending dismissal for insub-
ordination and wiring in violation of the Respondent's rules and the board approved
his recommendation. The same evening Ainsworth, accompanied by St. John, line
superintendent, went out to Ross' home and informed Ross of his dismissal. Ains-
worth, who as manager had authority to hire and discharge, explained at the hear-
ing his taking this matter to the board of directors' meeting for the reason that the
events occurred so close to the time of the meeting and he wanted to get the board
of directors' advice and wanted to present the regulations to them.
4 Upon the basis of the Trial Examiner's observation of the witnesses Ainsworth's ver-
sion of this incident is not credited. St. John was not questioned about this incident. -
5 There is an issue as to the status of Cain. The General Counsel takes the position
that he is a supervisor within the meaning of the Act and the Respondent takes a con-
trary view A line foreman is in charge of a line crew which operates from a truck and
performs maintenance and/or construction work on the Respondent's power lines. A crew
generally consists of 2 linemen, 2 or 3 groundmen, and a line foreman who is in charge of
the crew. The line foreman receives detailed orders or sketches of the work to be per-
formed each morning before he leaves the office. The line foreman may contact the office
during the day when he runs into an unusual situation. The line foreman, who spends
about 20 percent of his time doing physical work, directs the crew in its work in the exe-
cution of the orders and is responsible for the performance of the work Should the fore-
man have a discipline problem in the field with a crew member, the matter is taken up with
the line superintendent or the manager at the office when they return and the foreman's
recommendation is accepted in the vast majority of the cases. In the event an issue of
fact arises as to whether a crew member refused to perform his assigned work, the fore-
man's word is accepted. The line foremen have, made recommendations for promotions
and their recommendations have been followed. It is accordingly found that line foremen
are supervisors as defined in the Act.
SOUTHWEST MISSISSIPPI ELECTRIC POWER ASSOCIATION 1893
The incident relied upon by the Respondent as insubordination occurred on the
Monday preceding Ross' discharge on Thursday, March 27. This incident occurred
in the morning on the highway after Ross had completed work on a trouble call he
had received and had been working on since Sunday night. Present were Ross,
employee Proctor R. Provance, St. John, and Cain, line foreman.
According to St. John, Ross stated that the employees were trying to organize a
union , that it did not look as if St. John and Ainsworth were going along with them
in helping them organize. Further, according to St. John, Ross stated that Ross
-and Paige were going to do everything possible to get St. John and Ainsworth dis-
charged, and were starting that afternoon; that Ross asked St. John if he would like
to come along with them to see Davis, president of the board of directors, and St.
John replied that he did not want anything to do with it either way. St..John testi-
fied further that the subject of maintenance did not arise.
Cain's version of the incident was that Ross stated to St. John that he, Ross, had
heard that Paige and Ross were considered the instigators of the Union and that St.
John and Ainsworth were fighting them. Ross then stated that if that was the way
St. John and Ainsworth felt about it, Paige and he were going to start fighting them.
St. John declared that he did not have anything to say about it. Ross then asked
St. John to go to see Davis that evening. St. John declined and stated that he did
not have anything to say for or against Ross. Cain testified further that he did not
bear anything said about preventative maintenance that needed to be done.
The version Provance gave follows. Prior to the incident involved Ross had
asked St. John to ride in his truck but St. John apparently did not hear Ross' invi-
tation and rode in a truck with Cain. Ross then got angry and after they had trav-
eled awhile Ross stopped his truck and caused Cain's truck to stop. Ross then
stated to St. John that he had heard that St. John and Ainsworth had stated that
Ross, Paige, and Walker were the instigators of the Union and were seeking to get
them discharged. Provance did not remember what, if anything, St. John stated in
reply. Ross then said that if that was going to be the way St. John and Ainsworth
wanted it, they would seek to have St. John and Ainsworth discharged. Ross also
asked St. John and Cain to see Davis and find out if Davis could straighten out the
matter. St. John declined and said that he was not going to have anything to do
with it one way or the other and that he would let it go like it was. Provance was
not asked whether the subject of preventative maintenance arose.
According to Ross, he asked St. John to arrange for a crew to do some preventa-
tive maintenance work to reduce the trouble calls in his area. St. John stated that
he could not have that work done and help Ross in that respect. Ross, believing
that the work could be done, continued the discussion and St. John insisted that he
could not have the work done and stated that since this other came up he could
not have anything to do with or say much to anyone. Ross asked St. John what he
meant by that and St. John replied that Ross knew what he meant. Ross stated that
if St. John was referring to the Union, St. John could count one vote for the Union
as he was going to vote for it. Ross also asked St. John on this occasion about build-
ing a power line to certain Woodville houses which St. John had been putting off
about for awhile and which is involved in the wiring issue. The conversation re-
turned to preventative maintenance work, and Ross explained that he wanted that
work done so that he could get some sleep at night instead of being out on trouble
calls. St. John declared that that work could not be done, and Ross suggested that
they get together and see Davis or some of the board of directors to see if some-
thing could not be worked out to get the maintenance work done and help him out.
Ross denied making any threat to an official of the Respondent to go over his head
to get to the president of the Respondent.
As between St. John, Ross, Cain, and Provance, Ross impressed the undersigned
as being a more reliable witness than the others, and it is accordingly found that this
incident occurred substantially as related by Ross. Some observations as to the in-
herent probabilities of the various versions may be made. On the one hand it is
improbable that Ross would complain to St. John that St. John and Ainsworth were
not helping to organize a union . It is also unlikely that Ross believed that he and
Paige, as employees, could persuade the Respondent to discharge its two top offi-
cials, St. John and Ainsworth. If Ross did think they could influence the Respondent
to such action, it is unlikely he would warn St. John in advance. If this was an
empty threat , it is even more implausible that Ross would express his threat to St.
John who could bring about Ross' own discharge. It is unlikely, too, that Ross would
invite St. John to be present when Ross sought to have him discharged so that St.
John could reply immediately to such charges as Ross would make. On the other
hand, it is probable that Ross having been out that night on a trouble call (concern-
1894 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing which there is no disagreement), would seek to reduce this type of work and ask
that some preventative maintenance be done. Further when Ross was unsuccessful
in persuading St. John to have this work done, it would be likely for him to suggest
that they see Davis and the board of directors to see if something could be worked
out as this was in line with Davis' suggestion to Ross and Paige that if they had some
grievance they should get together with Ainsworth and the board of directors and
thresh it out among themselves.
According to St. John he reported the highway incident to Ainsworth when he
got back to the office and recommended that something be done about it explaining
that if Ross did not have any more respect for St. John than that, he did not have
any respect for a job or anything else. According to Ainsworth, when St. John re-
ported the incident to him, St. John said that Ross had stated that Ross and Paige
were doing everything they could to have St. John and Ainsworth discharged. St.
John reported further that Ross had stated that he knew a great deal about St. John
and Ainsworth of which St. John and Ainsworth were unaware and planned to bring
it to light and see Davis about it. Ainsworth's further testimony is that he had also
talked to Cain and Provance about the incident and that they supported St. John's
report. Cain and Provance were not questioned at the hearing as to whether they
had talked with Ainsworth about the subject. It is accordingly found that the Re-
spondent 's assertion of insubordination has not been substantiated.
Concerning the wiring issue, Ross had engaged in wiring for some time before his
discharge. The last wiring job Ross performed, which the Respondent urges was in
violation of its rules, was on Saturday, March 8, when Ross wired about eight houses
in an area known as Woodville. Before soliciting this last job Ross asked St. John,
line superintendent, when a power line would be constructed to those houses and
St. John had informed Ross that the line would be built the following week. In
soliciting the Woodville wiring business Ross, in accordance with what he had been
told by St. John, informed the prospects that they could expect service in about
a week.
Ross got the job and with the aid of Nat Perkins, who worked for the Respondent
on an intermittent basis in helping Ross with trouble calls, wired the Woodville
houses on March 8. About a week later the line had not been constructed and Ross
asked St. John about the line. St. John indicated that it would be built the next week.
The following week the line had not been constructed and Ross again asked St. John
about it. St. John again indicated to Ross that the work would be done the follow-
ing week. During one of these conversations with St. John, Ross told St. John that
the houses had all been wired and were awaiting for service, but he did not state
that he had wired them. The line had not been constructed as of the time of Ross'
discharge.
According to St John about a week or two prior to the week of Ross' discharge
Nevels, a line foreman, reported to him that he, Nevels, had heard that Ross and
Perkins had wired the Woodville houses. St. John in turn informed Manager Ains-
worth of Nevels' report, and St. John and Ainsworth thereafter investigated the mat-
ter by talking to the Woodville people and by talking to Perkins. Ainsworth testi-
fied that this was when and how he received his first knowledge of Ross' wiring
activities, that he did not remember when the investigation itself took place but esti-
mated that it occurred 5 to 10 days prior to the discharge; and stated that the investi-
gation occurred a day or two after the report from St. John. Ainsworth also re-
quested Ventress, a member of the board of directors, to make an investigation.
Ventress had meanwhile received word from the Woodville people that their houses
had been wired and that they had not received the service they had been promised.
Ventress investigated these complaints himself and found that Ross had done the
wiring and had made the promises. Within several days of Ventress' own investiga-
tion and just prior to the board of directors' meeting of March 27, Ventress and
Ainsworth made another investigation. The result of all the inquiries was that Ross
had done the wiring and had made promises of service, that Ross had solicited the
wiring business on the Respondent 's time, and that Ross had issued at least one re-
ceipt for wiring on a form of the Respondent.
The wiring rule involved is based upon the following resolution of the board of
directors adopted in 1947:
Resolved that any work done with material or equipment of the Association
be done by the Association itself and not by any of its employees , and that the
charges therefor be billed by the Association in its name and paid to it. All
previous orders are hereby rescinded;
The Respondent's wiring rule was not-posted. According to Ainsworth, he talked;
to St John and several employees about the rule but did not announce it to all the
SOUTHWEST MISSISSIPPI ELECTRIC POWER ASSOCIATION 1895
employees. Ainsworth explained that he depended upon St. John to notify the
men. St. John testified that the rule was last mentioned to him by Ainsworth's pred-
ecessor prior to August 1950. Both St. John and Ainsworth are in agreement that
the rule was generally known among the employees.
Ross bought his own materials for the Woodville job and the prior wiring jobs he
had done. He also received the payment for the work performed and did not turn
it in to the Respondent. Ross used the Respondent's equipment in that he used the
truck regularly assigned to him to perform his work as a serviceman. These trucks
are in the possession of the respective servicemen 7 days a week so that they can
reply to trouble calls at any time. Servicemen have used their assigned trucks, which
show the Respondent's name, on such noncompany business as going to church, to
motion picture shows, to ball games, and to go shopping. Employees other than Ross
did wiring on their own and also used the Respondent's trucks Cain, line fore-
man, also worked in violation of the rule.
St. John admitted having wired in violation of the Respondent's rule with Nevels,
the person who informed St. John of Ross' wiring. St. John also had "a good idea"
that Nevels was doing other wiring work on his own. Subsequent to Ross' dis-
charge St. John told employee Walker that any time Walker had 2 or 3 houses to
wire to let him know and he would get the materials for Walker. About a week
before the hearing, St. John informed Paige that two named employees had wired a
certain group of houses, but they had missed one and suggested to Paige that he con-
tact that house to see if he could get the job. St John had heard rumors of wiring
by other of the Respondent's employees, but never investigated these rumors. Also,
it does not appear that St John reported these rumors to Ainsworth. St. John testi-
fied that until the Woodville incident, Ross was treated like the other employees re-
garding his wiring activities.
Ainsworth had also heard rumors of the men wiring. Although, according to the
testimony of one of the board of directors, the manager is supposed to investigate
wiring cases, the Ross investigation was the only one Ainsworth had initiated since
he became the manager in August 1950.6 Ainsworth admitted that he had not been
too strict about wiring before the Woodville incident and that in a conversation with
Paige about Ross' discharge, when Paige informed him that he, Paige, like everyone
else, had engaged in wiring, he stated to Paige that he would not be broadcasting
that information.
When questioned by the General Counsel Ainsworth testified as to the operation
of the rule as follows:
Q. The fact is that this rule was breached so often that it wasn't much of a
rule, was it?
A. Well, it was rule enough that they did all their wiring on the side, they
wouldn't come out just in the open with it.
Q. Nobody would come to you and tell you about it but it was well known
that the boys were doing it to pick up some extra change?
A. They were doing it on the side, what I mean, they were trying to keep
it from me.
Q. But they weren't very successful keeping it from you, were they?
A. No, they weren't.
Ainsworth testified that shortly before the Woodville investigation he had heard
rumors that Ross had been wiring on a large scale.? Ainsworth also stated that of
6 One Johnny Johnson had been discharged for wiring and promising service to prospects
in an area where the Respondent did not contemplate rendering service In this instance
one of the board of directors presented the matter to the other members at a board of
directors' meeting and Ainsworth thereafter investigated and discharged Johnson. The
Respondent thereafter built the line and provided the service Johnson had promised In
the Ross case there is no indication that St. John had not given Ross correct informa-
tion that a line was contemplated for the Woodville homes involved. The only other in-
stance when the Respondent took the position that it discharged a person under the wir-
ing rule occurred in 1947, when its then manager was involved. In that case the man-
ager took the position that the payment the Respondent received from a certain firm for
work performed included an amount as a gift to him for his engineering work and ex-
pediting the construction.
7 Ainsworth also testified that he had heard rumors that Ross had been wiring occa-
sionally on the Respondent's time, but that he had no proof of this. Ross testified
that after soliciting a wiring job from one Jack Green in about the middle of February
1952, he and Paige wired the Green house on a weekday one afternoon about 3: 30, after
they had each put in 8 hours' work for the Respondent. Paige testified that it was pos-
1896 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the rumors he had heard none of the men involved had wired to the extent Ross
had been wiring, and further apparently that the other men had not made the
promises Ross had made. The information which Ainsworth had gotten from St.
John which Nevels had originally obtained, did not include anything about promises.
Ainsworth further testified that he did not have any proof that Ross was neglecting
his work and that such consideration did not necessarily enter into the decision to
discharge Ross .8 Ainsworth also testified that he did not remember whether Ross'
use of a company receipt form was noted or discussed by the board of directors at
their meeting and he would not describe this as a major reason. The reasons for
Ross' discharge which Ainsworth described as major, in addition to insubordination,
were Ross' wiring houses and telling people he would get them service quicker if
he got the wiring jobs. Ainsworth also gave as a factor Ross' solicitation on the
Respondent's time.
C. The refusal to bargain
1. The appropriate union unit
The General Counsel alleges that all employees of the Respondent engaged in
service, construction, and maintenance of its electric distribution system, but exclud-
ing clerical employees, guards, watchmen, professional employees, and supervisors
as defined in the Act, constitute a unit appropriate for purposes of collective
bargaining.
The Respondent contends that those employees who engage in new construction
such as the extension of lines are engaged in a local activity and are in no way
associated with commerce and should therefore not be considered part of the unit.
The Trial Examiner finds no merit to this contention.
The parties disagree as to the status of two individuals, Cammie E. Cain and
James Nevels, line foremen. The General Counsel contends that they are super-
visors and the Respondent takes a contrary view. For the reason stated in footnote
5, the Trial Examiner finds that Cain and Nevels are supervisors and are therefore
not properly part of the appropriate unit.
There is an issue as to the status of three persons who work on a part-time and
intermittent basis. It does not appear necessary to pass upon this point.
It is accordingly found that all employees of the Respondent engaged in service,
construction, and maintenance of its electric distribution system but excluding cleri-
cal employees, guards, watchmen, professional employees, and supervisors as de-
fined in the Act, constitute a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9 (b) of the Act.
2. The majority
The Respondent had 27 employees (or 30 employees if the part-time and inter-
mittent men were included) as of March 21, 1952. The record shows 21 union
authorization, application, and/or membership cards executed in January and Feb-
ruary 1952. It is accordingly found that the Union on March 21, 1952, and at all
material times thereafter was and now is the exclusive representative of the Respond-
ent's employees in the above-described appropriate unit for the purposes of collective
bargaining within the meaning of Section 9 (a) of the Act.
3. The request and refusal to bargain
As already noted Williams, assistant business manager of the Union, wrote the
Respondent on February 6, requesting recognition as bargaining representative and
suggesting a consent election in the event the Respondent declined to recognize the
sible that he worked on the Green house but did not recall the event. Green testified
that the wiring was done by Ross and another man on February 14. The Respondent's
records, which are in turn based upon reports sent in by each of the servicemen, show
that on February 14, Ross worked 8 hours regular time and 8 hours overtime and that
Paige worked 8 hours regular time Although Ross may have misrepresented his hours of
work to the Respondent, the Trial Examiner was impressed that Ross was a reliable wit-
ness at the hearing. The Respondent was unaware of the Green job until after Ross'
discharge.
8 At an earlier point in Ainsworth's testimony, he stated that Ross was "out to the
extreme" wiring houses and was actually neglecting his work and that this was one of
the reasons for Ross' discharge.
SOUTHWEST MISSISSIPPI ELECTRIC POWER ASSOCIATION 1897
Union. Also as already found, Ainsworth on behalf of the Respondent replied on
February 13, stating that he could not take any action without first receiving in-
structions from the board of directors who would next meet on February 21, and
that he would communicate with the Union as soon as he received his instructions.
Meanwhile, the Union filed a representation petition with the Regional Director and
on February 13 the Regional Director wrote the Respondent notifying it of the
pendency of a representation petition filed by Local Union 602, International Broth-
erhood of Electrical Workers, AFL, showing as the caption in the case, Southwest
Mississippi Electric Power Association, Lorman, Mississippi, 15-RC-673. It is
noted that the Charging Party's local designation is Local Union 605.
The board of directors met on Thursday, February 21, and by letter dated Feb-
ruary 25, Ainsworth wrote to the Regional Director stating that there was uncer-
tainty regarding whom the men were supposed to be dealing with and requesting
information on this subject. The pertinent paragraphs of this letter follow:
The Board of Directors met last Thursday and were prepared to take some
kind of action on this matter, but it developed from an examination of our files
that two Local Unions appear to be interested in organizing the employees of
this association. The Board felt, in view of the uncertainty of this situation,
that the matter should be delayed until that phase was definitely straightened
out and we know for sure with whom our men were supposed to be dealing.
We hope you will look into this matter and give us further information when
it is available. After this information is received, we will be very pleased to
have you call on us and give the matter full investigation. We hope you will
give us as much notice in advance as possible so that we may make the necessary
arrangements to have proper representation at this meeting.
On March 21, as already reported, Williams and Hopper, International repre-
sentative of the Union, met with Ainsworth. Hopper stated that the employees had
selected the Union as their collective-bargaining representative, that if the conduct
which the employees had reported persisted the Union would have to file unfair
labor practice charges which would result in a long-drawn-out hearing and would
tend to strain the relationship between the Respondent and the employees, that the
issue could be resolved quickly by the Union submitting proof of its status to a neutral
third party, and that they could then negotiate a contract. Ainsworth stated that
he was not too familiar with the procedures in this field, that the problem was in the
hands of the board of directors, and that he had received correspondence from the
Regional Director which mentioned Local Union 602 and he was not certain which
local was involved. Williams and Hopper explained the geographic jurisdiction
of the respective locals of the same parent organization, Local 602 having jurisdic-
tion in Amarillo, Texas, and Local 605 having jurisdiction in the western half of
Mississippi . Ainsworth stated that for lack of authority he could not give them an
answer but he would take the matter up with the board of directors and advise them
of the action taken. Hopper left his business card and Williams pointed out that he
could be reached as shown on the head of the Union's February 6 letter.9
Ainsworth reported the Williams and Hopper visit at the next meeting of the
board of directors on March 27, and according to Davis, president of the board of
directors, they were still waiting for an answer from the Regional Director to see
with which labor organization they were dealing. It was at this meeting that it was
decided to discharge Ross.
Immediately after Ross' discharge Williams was notified of the event and shortly
thereafter, on March 31, Williams executed a charge which was later filed with the
Board alleging violations of Section 8 (a) (1), (3), and (5) by the Respondent.
The Respondent received a copy of this charge on April 10.
By letter dated April 11, the Regional Director informed the Respondent that
the petition in the case captioned Southwest Mississippi Electric Power Association,
Lorman, Mississippi, 15-RC-673, had been withdrawn. This letter also shows the
notation that a copy was sent to the Union, International Brotherhood of Electrical
Workers, Local Union 605, AFL, % H. D. Williams, assistant business manager,
the same verbiage which appeared on the Union's first letter requesting recognition
dated February 6. The Regional Director's letter and the Union's letter of February
6 also show the same address for the Union. The Respondent did not thereafter
- contact the Union for the purposes of bargaining.
9 These findings are'made upon Hopper's and Williams' credible testimony Ainsworth's
"version is not credited
1898 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Conclusions
It is found that by the following acts and conduct the Respondent engaged in
interference , restraint , and coercion in violation of Section 8 (a) (1) of the Act:
(1) Ainsworth 's (a) questioning of Bailey and White as to whether they had signed
cards for the Union , (b) warning Bailey and White that they should not sign up
with the Union because someone was going to "get messed up," (c) declaring in
effect to Paige after Ross' discharge that the same thing would happen to him;
(2) St. John's ( a) inquiring of Paige as to his knowledge of the union activities,
(b) warning Paige that Paige , Walker , and Ross as instigators of the Union would
be run off should the Union lose and that the rest of the union men would be
run off as soon as replacements could be found , (c) requesting Paige to dissuade
Walker and Ross from the Union before "someone got run off," (d) stating to
Paige that he knew the moves the union people were making and demonstrating
his knowledge by naming those present at a certain union meeting ; and (3 ) Cain's
(a) preparing and circulating a petition for employees to indicate their desire to
drop the Union , ( b) informing Paige when he approached Paige with the petition to
drop the Union that the employees would not get a wage increase or a vacation until
they signed the petition.
The Trial Examiner is also convinced that Robert F. Ross was discharged by
the Respondent on March 27, 1952, in violation of Section 8 (a) (3) of the Act.
Both St. John and Ainsworth announced to employees that those connected with the
Union would be discharged . Ross was a known union adherent and St. John named
Ross as among those who might be discharged and requested an employee to dis-
suade Ross from the Union . Shortly after the officials of the Union visited the
Respondent Ross was discharged.
Prior to Ross' discharge the Respondent admittedly tolerated violations of its
wiring rule, yet Ross was discharged without any warning . St. John admitted that
until the Woodville incident Ross was treated like the others regarding wiring activi-
ties. Ainsworth admitted that until the Woodville incident he had not been too
strict about wiring. Both St . John 's and Ainsworth 's attitude toward wiring con-
tinued after Ross' discharge . St. John then offered to buy wiring materials for one
employee and pointed out possible wiring business to another employee. After
Ross' discharge when an employee informed Ainsworth that he like other employees
had been engaged in wiring , Ainsworth admitted that he had advised the employee
not to broadcast the information.
Ainsworth did not normally initiate investigations of wiring rumors. Ainsworth
pointed out that Ross ' case was different from the others in that according to the
rumors the other men were not wiring to the extent Ross was wiring and in that,
apparently also according to the rumors, the others had not been making the promises
of service Ross had been making. Further according to Ainsworth , St. John 's report
of Nevels' information a week or two prior to the discharge (which as already
noted did not include anything about promises of service ) was the first indication he
had of Ross' wiring ; he investigated St. John 's report a day or two after it was made;
and the rumors of Ross' wiring activities came to him prior to the investigation.
Ross like others had been wiring for some time. Yet, according to Ainsworth,
although he had heard of wiring by others , it was not until directly after St . John's
report and in a short period of a day or two that he first heard these rumors of
Ross' wiring activities from unidentified persons. In view of the improbabilities of
such a situation arising and the Trial Examiner 's observations at the hearing, it is
found that Ainsworth engaged in dissimulation as to the rumors.
Nevels' report of Ross' wiring the Woodville houses did not come as a surprise
to St . John . Upon Ross ' inquiry, St. John who himself engaged in some wiring
and had reason to believe that employees were also wiring , had given Ross the
original estimate of about a week for constructing the line to those houses. St. John
thereafter kept putting the job off when Ross asked about it several times. Ross
had also told St. John that the houses had already been wired.
Accordingly , and in view of Ainsworth 's and St. John 's announced purpose of
ridding the Respondent of union adherents and Ross' known union activities , Nevels'
report , the initiation of the investigation and the investigation itself, are not viewed
as the cause for Ross' discharge , but as the occasion which was seized upon to get
rid of Ross. In reaching the conclusion in Ross' case , the Respondent's unsubstan-
tiated assertion of insubordination has also been taken into consideration.
There remains for consideration the allegation of a violation of Section 8 (a) (5)
of the Act beginning March 21, 1952. In its letter of February 25, the conference
with the Union on March 21, and the board of directors ' meeting of March 27, the
Respondent took the position that it was uncertain as to the identity of the labor
organizaion involved and that it was awaiting information from the Regional Director
SOUTHWEST MISSISSIPPI ELECTRIC POWER ASSOCIATION 1899
to clarify the point. At the March 21 conference with the union men when they
asserted a majority status, offered to establish that status through a card check by
a neutral, and requested negotiations, the union men explained that both labor or-
ganizaions, 602 and 605, were locals of the same parent organization, 605 having
jurisdiction in that part of Mississippi and 602 having jurisdiction in Texas. The
union men were then informed that they would be advised of the action of the
board of directors. The Respondent still took the position that it was awaiting
Word from the Regional Director. After the Regional Director wrote the Respondent
on April 11, giving notice of withdrawal of representation petition bearing the same
caption as the notice of the pendency of the representation petition of February 13,
which had contained an error as to the Union's local number, and showing a notation
of a copy being sent to Local Union 605 in care of Williams, the Respondent received
what it professed to be awaiting but did nothing to contact the Union.
The explanation for the Respondent's professing this uncertainty lies in the Re-
spondent's other conduct. The purpose of its efforts to dissuade employees from
the Union by threats and otherwise and the discharge of Ross was to discourage
organization by the employees and to prevent that which normally flows from
organization-collective bargaining. It is accordingly found that the Respondent
did not entertain any genuine doubt as to the identity of the labor organization
representing its employees but asserted a doubt in order to discourage self-organiza-
tion and avoid its duty to bargain, and that beginning March 21, 1952, the Re-
spondent refused to bargain in violation of Section 8 (a) (5) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
- have a close, intimate, and substantial relation to trade,.traf6c,_and commerce among
the several States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8 (a) (1), (3), and (5) of the Act, it will be recommended that the Re-
spondent cease and desist therefrom and take certain affirmative action designed
to effectuate the purposes of the Act.
Having found that the Respondent interfered with, restrained, and coerced its em-
ployees by the conduct enumerated in the section herein entitled, "Conclusions of
Law," the Trial Examiner will recommend that the Respondent cease and desist from
this conduct.
Having found that beginning March 27, 1952, the Respondent discriminated
against Robert F. Ross, it will be recommended that the Respondent be ordered to
offer Ross immediate and full reinstatement to his former or substantially equivalent
position,10 without prejudice to his seniority or other rights and privileges, and make
him whole for any loss of pay suffered by him as a result of the discrimination, by
payment to him a sum of money equal to the amount he would have earned from
March 27, 1952, the date of the discharge to the date of the offer of reinstatement
less his net earnings 11 to be computed on a quarterly basis in the manner established
by the Board in F. W. Woolworth Company, 90 NLRB 289. Earnings in one partic-
ular quarter shall have no effect upon the back-pay liability for any other such
period. It will also be recommended that the Respondent make available to the
Board, upon request, payroll and other records to facilitate the checking of the
amounts due.
Having found that the Respondent refused to bargain, it will be recommended that
the Respondent cease and desist from this conduct and upon request bargain collec-
tively with the Union with respect to rates of pay, wages, hours, and other terms
and conditions of employment.
The Respondent's infractions of Section 8 (a) (1), (3), and (5) of the Act, herein
found, disclose a fixed purpose to defeat self-organization and its objectives. Be-
cause of the Respondent's unlawful conduct and its underlying purposes, the Trial
Examiner is persuaded that the unfair labor practices found to have been committed
are related to other unfair labor practices proscribed by the Act, and that the danger
10 The Chase National Bank of the City of New York, Can Juan, Puerto Rico, Branch,
65 NLRB 827.
u Crossett Lumber Company, 8 NLRB 440; Republic Steel Corp. v. N. L. R. B., 311
U S. 7.
1900, DECISIONS: OF NATIONAL LABOR RELATIONS BOARD
of their commission in the future is to be anticipated from the course of the Re-
spondent's conduct in the past. The preventative purposes of the Act will her
thwarted, unless the remedial order is coextensive with the threat. In order, there-
fore, to make effective the interdependent guarantees of Section 7, to prevent a recur-
rence of unfair labor practices, and thus to effectuate the purposes of the Act and
thereby minimize the industrial strife which burdens and obstructs commerce, it will
be recommended that the Respondent cease and desist from infringing in any manner
upon employee rights guaranteed by Section 7 of the Act.
On the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Local Union 605, International Brotherhood of Electrical Workers, AFL, is
a labor organization within the meaning of Section 2 (5) of the Act.
2. All employees of the Respondent engaged in service, construction, and main-
tenance of its electric distribution system but excluding clerical employees, guards,
watchmen, professional employees, and supervisors as defined in the Act, constitute
a unit appropriate for the purposes of collective bargaining within the meaning of
Section 9 (b) of the Act.
3. The above-named labor organization was on March 21, 1952, and at all times
material thereafter, the exclusive representative of all the employees in the aforesaid
appropriate unit for the purposes of collective bargaining within the meaning of
Section 9 (a) of the Act.
4. By refusing on and after March 21, 1952, to bargain collectively with the Union
as the exclusive representative of the employees in the appropriate unit, the Re-
spondent has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (5) of the Act.
5. By discriminating with regard to the hire and tenure of employment of Robert
F. Ross beginning March 27, 1952, thereby discouraging membership in the above-
named labor organization, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
6. By (1) questioning employees whether they had signed union cards; (2) warn-
ing employees that they should not sign union cards because someone was going to,
"get messed up"; (3) declaring to one union adherent after another union adherent
was discharged that the same thing would happen to him; (4) questioning an em-
ployee as to his knowledge of union activities; (5) warning a union adherent that
he and other instigators of the Union would be discharged should the Union be un-
successful and that the remaining union men would be discharged as soon as re-
placements could be found; (6) requesting one union adherent to dissuade other
union adherents from the Union before discharges occurred; (7) stating to an em-
ployee that the moves of the union people were known to the Respondent and dem-
onstrating its knowledge; (8) preparing and circulating a petition for employees
to indicate their desire to drop the Union; (9) informing an employee when he was
approached to sign the petition to drop the Union, that the employees would not get
a wage increase or vacation until they signed the petition, and by engaging in dis-
crimination and refusing to bargain collectively with the Union and thus interfering
with, restraining, and coercing its employees in the exercise of the rights guaran-
teed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Appendix
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor Re-
lations Board and in order to effectuate the policies of the National Labor Relations
Act, we hereby notify our employees that:
WE WILL NOT refuse to bargain collectively with Local Union 605, Interna-
tional Brotherhood of Electrical Workers, AFL, as exclusive representative of all
employees in the appropriate unit described below.
WE WILL NOT question our employees whether they had signed union ,:cards,
warn our employees that they should not sign union cards because someone
SOUTHWEST MISSISSIPPI ELECTRIC POWER ASSOCIATION 1901
would "get messed up," use the discriminatory discharge of one employee as
an example to other employees, question our employees as to their knowledge
of union activities, declare to our employees that union adherents will be dis-
charged, request our employees to dissuade union adherents from union activi-
ties before discharges occur, stating to our employees that the moves of union
people are known to us and demonstrating our knowledge, or prepare and circu-
late a petition for employees to indicate their desire to drop a union and urge
employees to sign such a petition by threatening the withholding of a wage
increase or vacation until they sign the petition.
WE WILL NOT in any other manner interfere with, restrain, or coerce our
employees in the exercise of their right to self-organization, to form labor
organizations, to join or assist Local Union 605, International Brotherhood
of Electrical Workers, AFL, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to the extent
that such right may be affected by agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
WE WILL NOT discourage membership in the above-named labor organization
or any other labor organization of our employees or discharge any of our em-
ployees or in any other manner discriminate with regard to their hire or tenure
of employment or any term or condition of employment.
WE WILL offer Robert K. Ross immediate and full reinstatement to his
former or similar position without prejudice to his seniority or other rights and
privileges and make him whole for any loss of earnings suffered as a result of
discrimination against him.
WE WILL bargain collectively, upon request, with the above-named labor
organization as the exclusive representative of all employees in the bargaining
unit described below with respect to rates of pay, wages, hours of employment,
and other conditions of employment, and if an understanding is reached, em-
body such understanding in a signed agreement. The bargaining unit is:
All employees engaged in service, construction and maintenance of the
electric distribution system but excluding clerical employees, guards,
watchmen, professional employees, and supervisors as defined in the Act.
All our employees are free to become or remain members of the above-named
union, or any other labor organization.
SOUTHWEST MISSISSIPPI ELECTRIC
POWER ASSOCIATION,
Employer.
Dated---------------- By----------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof, and must not be
altered, defaced, or covered by any other material.
Supplemental Intermediate Report
STATEMENT OF THE CASE
On September 25, 1953, the Trial Examiner issued an Intermediate Report and
Recommended Order finding, inter alia, that the Respondent was engaged in com-
merce within the meaning of the Act. On January 28, 1954, the Board granting the
Respondent's petition dated December 22, 1953, ordered the record reopened and
remanded the proceeding to the Regional Director for further hearing for the pur-
pose of granting the parties an opportunity to adduce additional evidence respecting
the Respondent's operations in relation to their effect upon interstate commerce.'
'At the hearing the Union objected to the reopening of the record on the ground, inter
alma, that the matter of the Respondent ' s business activity had been litigated in the prior
proceeding , and also to the Board 's order reopening the record in that the order did not
direct the Trial Examiner to maize conclusions of law and issue a recommended order.
The Respondent moved to amend its answer filed in the original proceeding from an ad-
mission of the commerce facts alleged in the complaint to a denial thereof. The objection
and the respective motions are referred to the Board as the Trial Examiner deems these,
matters to be beyond his authority.
1902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon notice given by the Regional Director pursuant to the above -described Board
order a hearing was held before the undersigned at Jackson and Lorman . Mississippi,
on June 29 and 30 , 1954. The General Counsel , the Respondent , and the Union
were represented by counsel . Full opportunity to be heard , to examine and cross-
examine witnesses , and to introduce evidence bearing on the issues, was afforded
the parties . Only the Union filed a brief with the undersigned.
Upon the entire record in the case 2 the Trial Examiner makes the following:
FINDINGS OF FACT
THE BUSINESS OF THE RESPONDENT
The Respondent, a Mississippi corporation , having its principal office and place
of business at Lorman, Mississippi , is engaged in the business of rural electrification
and distribution of electrical energy . It maintains and operates approximately 2,200
miles of power lines 3 and serves approximately 7,300 customers in 9 counties in the
southwestern part of the State of Mississippi and is the sole rural electrification
association in 3 of these counties . The Respondent is financed through the Rural
Electrification Administration and there remains an unpaid loan of about $ 3,000,000.
In the conduct of its operations the Respondent employs about 40 persons.
In the course of its business the Respondent purchases electrical energy, wire, poles,
hardware, electrical and maintenance equipment, supplies, and services. For the year
ending October 31, 1952, hereinafter called the 1952 period , the value of such pur-
chases was $229,852; and for the year ending October 31, 1953, hereinafter called
the 1953 period , the value of such purchases was $221,454.
The Respondent does not generate any electricity and except for two instances in
1953 when its main line was down and it purchased electricity from an adjoining
rural electrification association valued at about $280 , the Respondent purchases all
the electricity it resells from Mississippi Power and Light Company. During the
1952 period the Respondent purchased electrical energy valued at $70,406, and
during the 1953 period the Respondent purchased electrical energy valued at
$79,200. The Respondent receives the electricity it purchases at four metering
points in the State of Mississippi where the lines are connected . The Mississippi
Power and Light Company generates electric energy in the State of Mississippi and
also purchases energy from the Tennessee Valley Authority system , the Arkansas
Power and Light Company, the Louisiana Power and Light Company, the New
Orleans Public Service Company, and the Mississippi Power Company. The Missis-
sippi Power Company, a unit of the Southern Company , in turn generates some of
its own electricity and purchases electricity from other units of the Southern Com-
pany which include the Alabama Power and Light Company, the Georgia Power
Company, and the Florida Power Company. The Mississippi Power and Light
Company, the Louisiana Power and Light Company, and the New Orleans Public
Service Company are part of Middle-South Utilities , Inc. The chief load dispatcher
for Middle-South Utilities, Inc., is located in Arkansas and controls the distribution
of loads of electrical energy to the various firms which comprise the company.
2 Upon the Union's motion and over the Respondent 's objection that it was not shown
that the documents hereinafter referred to have any information of any competent or
probative force, notice is taken of the following documents , copies of which were pre-
sented by the Union , and they are hereby admitted into evidence as designed : 1950 An-
nual Statistical Report, U . S Department of Agriculture, R. E. A., Union 's Exhibit No. 1;
1951 Annual Statistical Report, U S . Department of Agriculture , R. It. A., Union's Ex-
hibit No. 2 ; 13th Annual Report of Energy Purchased By R E A. Borrowers, 1951, U. S.
Department of Agriculture , R. E. A , Union 's Exhibit No. 3; 14th Annual Report of
Energy Purchased By R E . A. Borrowers , 1952, U. S. Department of Agriculture, R E A.,
Union's Exhibit No. 4, and Monthly Statistical Summary, Bulletin No 150 , August 1953,
U. S Department of Agriculture , R. E. A., Union 's Exhibit No. 5. See, J. S. Abercrombie
Company, 83 NLRB 524, 525.
In addition to this matter of which notice is taken the record consists of a stipulation
of facts arrived at by the parties in the course of the hearing and entered upon the record.
Except as otherwise noted, the findings of fact are based upon this stipulation.
8 In the course of the Respondent's business it has entered into a joint lease agreement
with the Southern Bell Telephone and Telegraph Company under which for a given charge
each has the right to use the poles of the other to string Its wiring . Under this agree-
ment the Southern Bell Telephone and Telegraph Company uses about 1,000 of the Re-
spondent 's poles
0
SOUTHWEST MISSISSIPPI ELECTRIC POWER ASSOCIATION 1903
The following is a listing of the location of the connecting points between the various
organizations : Tennessee Valley Authority system-Mississippi Power and Light
Company, in Tennessee and Mississippi; Arkansas Power and Light Company-
Mississippi Power and Light Company, in Mississippi ; Louisiana Power and Light
Company-Mississippi Power and Light Company, in Mississippi, New Orleans
Public Service Company-Mississippi Power and Light Company, in Louisiana; and
Mississippi Power and Light Company-Mississippi Power Company, in Mississippi.
The following shows the value of electrical energy the suppliers named above
sold to all rural electrification associations for the year ending June 30, 1952:
Middle-South Utilities, Inc------------------------------------- $1, 450,061
The Southern Company--------------------------------------- 44,453,236
Some of the more important of the Respondent's purchases, excluding electrical
energy, follow:
195e Period 1953 Period
Wire, poles, hardware, and electrical appurtenances ------ $109, 718 $103, 759
Other equipment------------------------------------ 22, 357 3, 418
Gas, oil, and truck repairs--------------------------- 17, 799 21, 826
During 1953, the Respondent purchased equipment from Rural Transformer and
Equipment Company, Wisconsin, valued at about $5,748. The Respondent also
purchased in Mississippi during 1953, electrical equipment and supplies from the
following companies in the following approximate amounts, Stewart C. Irby Com-
pany, Mississippi , $50,187; Westinghouse Electrical Supply, $30,058; and Graybar
Electric Company, $46,174. Orders placed by the Respondent with the aforemen-
tioned concerns located in Mississippi are filled either by shipment by the manufac-
turer outside the State of Mississippi directly to the Respondent, or by shipment
from warehouses in Mississippi to the Respondent, the warehoused goods having
previously been shipped to these warehouses from points outside the State of
Mississippi.
The following table shows the value of the Respondent' s sales and the type of
purchasers:
Domestic Industrial Municipal U.S. Govt. Total
1952 period--------- $376,245 $13,323 $13,308 $211 $403,087
1953 period--------- 411,201 12,736 15,029 291 439,257
Of the more than 7,000 customers the Respondent serves, about 5,000 are classi-
fied as rural farm , about 1,225 are classified as rural nonfarm, about 820 are classified
as commercial and small industrial , and 2 are classified as commercial and large
industrial.
Among the industrial concerns the Respondent serves is the California Company,
an oil company, which uses electricity having an annual value of about $5,000, for,
among other things, the transmission of gasoline ; Sun Oil Company, which uses the
electricity having an annual value of about $1300 for, among other things, water
pump, warehouses, and laboratory; and the Humble Oil Company, which uses the
electricity having an annual value of about $500, for, among other things, water
pumps, radio station, and tool house. Also among the industrial consumers are the
Natchez Airport, the commercial airport for the city of Natchez, which purchases
electricity having an annual value of about $600 in the conduct of its operations;
and the Illinois Central Railroad Company and the Yazoo and Mississippi Valley
Railroad Company, each of which purchases electricity having an annual value of
about $100, for use at stations, highway crossings signal lights, and railroad camp
cars used in the repair and maintenance of the respective railroad systems. In addi-
tion , the Respondent supplies electricity to the Rodgers Lumber Company, Port
Gibson, Mississippi , at an annual rate of about $1,800, the J. E. Hicks Slaughter
House, Natchez, Mississippi , at an annual rate of about $1,000, and the Hood
Lumber Company, Hermanville, Mississippi, at an annual rate of about $13,000.
The Hood Lumber Company converts logs acquired in the State of Mississippi into
finished lumber and the value of its annual sales of its finished products is more than
$600,000, more than half of which is sold to out-of-State customers. The Respondent
also supplies electricity to certain public schools and buildings and to the Southern
Bell Telephone and Telegraph Company for its use in the operation of a certain
rural dial system. The municipality served by the Respondent is Utica, Mississippi,
a trucking center for the distribution of farm products. The Respondent supplies
the electricity to the township which in turn using its own facilities distributes it to
domestic and commercial consumers.
6 The findings in this paragraph are based upon the matter which is noted in footnote 2.