The Kansas Utilities Co.

National Labor Relations Board - Board Decisions

Sep 27, 1941

35 N.L.R.B. 936 (N.L.R.B. 1941)

In the Matter of THE KANSAS UTILITIES COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION B-304, AFFIL-
IATED WITH THE AMERICAN FEDERATION OF LABOR
Case No. C-1916.Decided September 27, 1941
Jurisdiction : electric utility industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: anti-union statements, questioning em-
ployees as to union affiliation , demotion of active union member.
Collective Bargaining: majority established by membership lists-failure of
Board of Directors to authorize president of Company to negotiate ; failure
to accept or reject proposed contract submitted by union and to offer counter-
proposals as requested ; refusal to negotiate with business manager of union
because of his alleged economic beliefs
Remedial Orders : ordered to bargain collectively; order based on majority at
date of refusal to bargain.
Unit Appropriate for Collective Bargaining : production, operating, distribution,
and maintenance employees, excluding supervisory officials of a higher rank
than gang foremen and employees engaged in managerial , office, clerical,
sales, promotion , and collection work in the operations department.
Mr. Paul Nachtman, for the Board.
Hudson 1 Hudson, by Mr. Douglas Hudson and Mr. Howard Hud-
son, of Fort Scott, Kans., and Mr. N. W. Hartman, of St. Louis, Mo.,
for the respondent.
Mr. Lawson Wimberly, of Washington, D. C., for the Union.
Mr. Raymond J. Compton, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Brotherhood of Electrical Workers, Local Union B-304, affiliated
with the American Federation of Labor, herein called the Union, the
National Labor Relations Board, herein called the Board, by the
Regional Director for the Seventeenth Region (Kansas City, Mis-
souri) issued its complaint dated April 15, 1941, against The Kansas
Utilities Company, Fort Scott, Kansas, herein called the respondent,
alleging that the respondent had engaged in and was engaging in
35 N. L. R. B., No. 184.
936
THE -KANSAS UTILITIES COMPANY 937
unfair labor practices affecting commerce within the ' meaning of
Section 8 (1) and (5) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of
the complaint, accompanied by notice of hearing, were duly served
upon the respondent and upon the Union.
'Vv Ith respect to the unfair labor practices, the complaint alleged in
substance that the respondent (1) on or about August 10; 1940,'
and at all times thereafter, refused to bargain collectively with the
Union as the exclusive representative of the employees in the pro-
duction, distribution, operations, and maintenance departments, each
alleged to constitute a separate appropriate unit, or to bargain with
said Union as the exclusive representative of the employees in the
four combined departments, alternately alleged to constitute a single
appropriate unit, although the Union then represented a majority
.of such employees in the alternative units; and (2) by the foregoing
and other acts and conduct, interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7
of the Act. On April 25, 1941, the respondent filed an answer in
which it denied that it was engaged in commerce within the meaning
of the Act and that it had committed any of the unfair labor practices
alleged in the complaint.
Pursuant to notice, a hearing was held at Fort Scott, Kansas, from
April 28 to May 1, 1941, before Thomas S. Wilson, the Trial Exam-
iner duly designated by the -Chief Trial Examiner. The Board and
the respondent were represented by counsel and participated in the
hearing. Full opportunity to be heard, to examine and cross-exam-
ine witnesses, and to introduce evidence bearing on the issues ''was
afforded all parties. At the commencement of the hearing, the
respondent filed with the Trial Examiner a motion to dismiss the
complaint on the ground that the respondent was not engaged in
commerce, that its activities did not affect commerce, and that the
Board did not consequently have jurisdiction in the matter. The
Trial Examiner denied the motion. At the same time the respond-
ent filed a motion to strike certain portions of the complaint, together
with a motion to make the complaint more definite and certain.
These motions were also denied. During the course of the hearing,
-the Trial Examiner ruled upon other motions and upon objections
to the admission of evidence. The Board has reviewed the rulings
of the Trial Examiner and finds that no prejudicial errors were
committed. The rulings are hereby affirmed. At the close of the
hearing, the parties were afforded an opportunity to argue orally
before the Trial Examiner and were advised that they might file
briefs with him within fifteen days from the close of the hearing.
Neither of the parties argued orally, and no briefs were filed.
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Trial'Examiner thereafter filed his Intermediate Report dated
June 21, 1941, copies of which were duly served upon the parties,
in which he found that the respondent had engaged in unfair labor
practices within the meaning of Section 8 (1) and (5) and Section
2 (6) and (7) of the Act. He accordingly recommended that the
respondent cease and desist from engaging in the unfair labor prac-
tices and that it take certain affirmative action. Thereafter the
respondent filed exceptions to the Intermediate Report and a brief
in support of its exceptions. On August 14, 1941, pursuant to notice
duly served upon the parties, a hearing for the purpose of oral
argument was held before the Board at Washington, D. C. The
respondent and the Union appeared by counsel and participated in
the argument. The Board has considered the brief and the excep-
tions to the Intermediate Report and, in so far as the exceptions
are inconsistent with the findings, conclusions, and order set forth
below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Kansas Utilities Company, a Kansas corporation, is engaged
in the generation, distribution, and sale of electrical energy and a
small amount of steam heat. The respondent is a subsidiary of
Community Power and Light Company, which also owns Arkansas
Utilities Company, Missouri Utilities Company, Texas-New Mexico
Utilities Company, and other utility companies in States other than
the State of Kansas. The principal place of business of the respond-
ent is located in Fort Scott, Kansas. Its power-generating plants and
its transmission system are located in the State of Kansas. In
addition to servicing business units in Kansas, the respondent sup-
plies power to the communities of Foster, Hume, Worland, and
Richards in the State of Missouri over transmission lines owned by
the Missouri Utilities Company but leased and maintained by the
respondent. These transmission lines have no connection with any
other part of the system of the Missouri Utilities Company and are
connected only with the respondent's system. The total revenue
from the sale of the respondent's power in 1940 amounted to $620,-
097.18. Of this amount the sum of $116,586.51 was derived from
sales of power made in the State of Missouri. For the first 3 months
of 1941, the respondent sold approximately $4,000 worth of power in
the State of Missouri out of total sales amounting to approximately
$184,000.
The respondent sells electric energy to the Frisco Railroad, Missouri
Pacific Railroad, M. K. T. Railroad, Western Union Telegraph
THE KANSAS UTILITIES COMPANY 939
Company,, Edward Aaron, Inc., Pollock-McKey Company, and
the Hume Sinclair Coal Mining Company, among other concerns.
All of these companies engage in interstate commerce and rely upon
the respondent as the sole source of electrical energy.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers, Local Union
B-304, is a labor organization affiliated with the American Federation
of Labor. It admits to membership, among others, employees of
the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
The first attempt to organize the respondent's employees was
made at a meeting held on June 29, 1940, at which, upon the request
of Wilford Coleman, a lineman, officials of the Union addressed a
small group of employees. Coleman had been employed by the
respondent for over 12 years.
Coleman testified without contradiction, and we believe his testi-
mony, as did the Trial Examiner, that shortly thereafter, on or
about July 8, 1940, Charles Williams, superintendent of the distribu-
tion department, told him during working hours that he understood
that Coleman had been talking to the employees about the Union and
then said : "Mr. Stone [the respondent's president] doesn't know
anything about that yet and I expect you should talk to him before
you do anything more." Accordingly Coleman called upon Stone
that evening and asked his opinion about unions generally, stating
that the employees were attempting to organize. Stone, according
to Coleman, answered that his opinion was very unfavorable because
of certain dealings he had had with unions in earlier years but that
he supposed unions generally might be all right. Coleman further
testified that during the conversation Stone remarked that he did
not understand why Coleman should start a union, since lie was one
of the highest paid linemen, and also stated that there would have
been substantial increases in salary for some of the employees if
they had come to see him. After further conversation Stone said
that he did not think that they had accomplished much by their meet-
ing,'and'that it was evident that Coleman was determined to go ahead.
Before the conversation ended Stone further stated that, whether or
not the men joined the Union, there would be no discrimination.
Stone corroborated Coleman's version of the foregoing conversation
and we find it to be true.
940 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the following day, according to Coleman's testimony, Earl
Motti, line foreman, remarked to Coleman that he felt as though the
men had stuck a knife in his back "with the thing [they] had started,"
that the respondent had lost faith in Coleman, that Motti would have
to find someone else to leave in charge of the line crew when he was
away, and that the company did not think that it could trust Coleman
to fill the job he had been doing. Motti did not deny the statements
attributed to him by Coleman, and we find them to be true, as did
the Trial Examiner. '
On July 13, Motti called Coleman and the other employees of the
line crew into the truck garage to hear a talk by Stone. According
to the testimony of Robert O. Willard, a member of the line crew,
Stone addressed the men as follows :
I have something I wish to say to Wilford [Coleman] and I
want the rest of you fellows to hear-it. Wilford has sold out
the Company to a labor organizer. He is a traitor to the Com-
pany and who likes a traitor? He is the type of man who
would sell out his country to a Hitler. Wilford, you have lost
whatever chance for promotion you may have with this com-
pany. I will be very careful to try to get along with you and I
shall caution Earl [Motti] and Charlie [Williams] to be the
same but I think you will not be very happy or comfortable in
your new surroundings much longer.
Willard's testimony was corroborated by several of the other em-
ployees present on this occasion, and Stone admitted that his speech
was substantially as set forth above. Stone testified that he had,
however, prefaced his remarks by stating that, although he had been
advised by counsel that the respondent was not subject to the Act,
he intended to abide by it and that there would be no discrimination
for union activities. Stone further testified that he made the speech
because of "rumors" and "talk," which had come to him from sources
which, he did not disclose, that Coleman had been saying that he
was organizing with Stone's permission and approval. Coleman de-
nied that he had made any statement to employees other than to
repeat Stone's previous statement to him that there would be no
discrimination against anyone who did or did not join the Union.
Whatever may have impelled Stone to address the employees, it is
clear from the character and intensity of his remarks, and we find,
that Stone abused and maligned Coleman and threatened to penalize
him in the presence of his fellow workers for the sole apparent reason
'that he had attempted to unionize those workers. We find further
that Stone's statements against Coleman served as a warning to all
those present at the meeting not to' follow Coleman's example.
SECURITY WAREHOUSE & COLD STORAGE CO. 941
Robert 0. Willard, a member of the line crew, testified that two
days after Stone's address, Motti asked him, "Wny don't the fellows
get together and form a company union?" Willard further testified
that shortly thereafter Motti told him "Now, Bob, it always has been
my custom to leave Wilford [Coleman] in charge when I go some-
where but the Company no longer has any confidence in Wil-
ford.... If you run out of anything to do, just sit down and wait
until I get back." A few days thereafter Motti began leaving Clif-
ford McGuire, an employee with less experience than Coleman, in
charge of the line crew during his absence. Motti admitted that he
had suggested to Willard the formation of an "employees' union,"
because he thought that they could obtain "better bargaining by the
boys consulting the management themselves." Motti did not deny
that he had expressed to Willard the respondent's alleged loss of
confidence in Coleman. We find, as did the Trial Examiner, that
Motti made the statements above attributed o him by Willard. We
further find that the respondent relieved Colman of his customary
duties in supervising the line crew during Motti's absence in order to
deprive him of prestige among his fellow employees, and thereby to
discourage membership in the Union.
It is undenied that both L. E. Conger, the respondent's vice,presi-
dent and manager of its western division, and John Wheeland,
superintendent of the western division, inquired of employees whether
they had joined the Union. Leo Wilson, a lineman, testified that on
or about July 11, 1940, Conger asked him if he would not rather deal
with the respondent than with the Union, stating that if he dealt
with the Union, he would have to pay dues "to some union head
back east, which might be some foreigner." Wilson further testified
that on or about July 16, 1940, Conger told him that he was sorry
that he had joined the Union, that "so far as any promotions that
might be in line for you with the Company, you are through," and
that "From now on, Club, you are a marked man." Conger denied
that he had told Wilson that he was a "marked man" or that he would
not be promoted and further testified that when Wilson informed him
that he had joined the Union, he merely said, "The greatest disap-
pointment to me is that you didn't tell me." George Mook, an ap-
prentice lineman, testified that when he asked Conger if joining the
Union would affect his job, Conger replied that "he had seen it
worked out before and it didn't always work out for the best."
Conger testified that Mook's version of the conversation pas sub-
stantially correct. That Mook interpreted Conger's statement as
advice against joining the Union is clear from the credible testimony
of Wilson, to whom Mook reported that Conger had so advised him.
Everett Stange, another lineman, testified that in July 1940, Super-
942 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
intendent Wheeland asked him if he had joined the Union and told
him that he Wheeland, had once belonged to a union and that he
"didn't think they were the proper thing for a man." Wheeland
did not testify. We find that Conger and Wheeland made the
statements attributed to them by Wilson, Mook, and Stange.
We find that, by the foregoing conduct and statements of its super-
visors and officials, the respondent has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
B. The refusal to bargain.
1. The appropriate unit
The complaint alleged that the employees in the production, dis-
tribution, operations, and maintenance departments, respectively, or
in the alternative, that all four of these departments combined,
including gang foremen, but excluding supervisory officials of higher
rank than gang foremen, constitute appropriate bargaining units.
The evidence shows that the production and operating employees 1
are those primarily engaged in the generation of electric power, and
that the distribution and maintenance employees 2 are those primarily
engaged in the construction and maintenance of the transmission
system. All these employees work in close cooperation with each
other and have common problems and interests distinct from those
of the respondent's other employees. It is clear, therefore, that all
employees engaged in the generation of power and in the construc-
tion and maintenance of the transmission system properly constitute
a single unit appropriate for the purposes of collective bargaining.
The Union makes no claim to represent employees engaged in
managerial, office, clerical, sales, promotion, and collection work,
comprising what the respondent terms its "operations department,"
and desires generally to exclude them from the appropriate unit.
It would include, however, George McGrew, Imon Pilcher, William
Gay Hendrix, J. F. McClanahan, and Wilbert Staats, all of whom
had designated the Union as their collective bargaining agent early
in 1941. The respondent contends that, because of the work they
perform, these men do not fall within the unit which we consider
to be appropriate. These men are all classified by the respondent as
local managers. As such, their duties are many and varied and
include office, clerical, sales, and promotion work, together with some
work on transmission and service lines. The uncontradicted evidence
11
1 Collectively referred to by the respondent as its production department.
2 Collectively referred to by the respondent as its distribution department.
THE KANSAS UTILITIES COMPANY 943
shows that all but Staats devote only about 15 per cent of their time
to work normally performed by distribution and maintenance em-
ployees. With respect to Staats, it .appears that in addition to his
duties as local manager he also has charge of a small hydro-electric
plant. Since the Union excludes other local managers whose duties
are similar to those performed by the above-named individuals, and
since these five employees devote only a small portion of their time
to distribution and maintenance work, we find that they fall within
the class of employees whom the respondent terms its "operations
department" and whom the Union would exclude from the appro-
priate unit. We shall exclude them from the unit.
The Union also desires to include Earl Motti and C. E. Ryan.
These employees likewise have designated the Union as their bar-
gaining representative. Motti and Ryan are foremen of the respond-
ent's line-repair and construction crews. The respondent classifies
Motti and Ryan as "assistant superintendents" and contends that
they should be excluded from the unit because of the supervisory
nature of their duties. The Union contends that both men are gang
foremen and therefore should be included in the appropriate unit.
While it is clear that they perform supervisory duties, it is question-
able whether or not the duties are such as to warrant their designa-
tion as "assistant superintendents." It appears, however, that their
supervisory authority is similar to that of C. Lightwine and L. H.
Bunnell, chief engineers, who, the Union agreed, are not properly
included in the unit. We find that Motti and Ryan occupy super-
visory positions of higher rank than that of gang foremen. We
shall exclude them from the unit.
The Union would include and the respondent would-exclude How-
ard Morrison, who is employed as a storeroom clerk in charge of
certain supplies and- materials. Since the handling of supplies does
not require full-time employment, Morrison also works as a general
electrician upon the transmission system. We find that his interests
are- closely allied with those of the distribution and maintenance
employees and that 'for the purposes of collective bargaining he
should be classified in that category. We shall therefore include him
in the unit.
At no time during its negotiations with the Union did the respond-
ent question the appropriateness of a unit composed of the produc-
tion, distribution, operating, and maintenance employees, or suggest
that any other unit might be appropriate. At the, hearing, the only
question raised by the respondent with respect to the appropriate
unit concerned the inclusion of the above-named employees.
We find that the production, operating, distribution, and mainte-
nance employees of the respondent, including gang foremen, but
944 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
excluding supervisory officials of a higher rank than gang foremen
and employees engaged in managerial, office, clerical, sales, promotion,
and collection work in the operations department, at all times herein
material constituted, and that they now constitute a unit appropriate
for the purposes of collective bargaining, and that said unit insures
to employees of the respondent the full benefit of their right to
self-organization and to collective bargaining and otherwise effectu-
ates the policies of the Act."
While the complaint alleges in the alternative, that the production,
operation, distribution, and maintenance employees, respectively,
constitute separate appropriate units, it is unnecessary, in view of
the foregoing finding, to make any determination with respect to
such allegation.
2. Representation by the Union of a majority in the appropriate
unit
As shown by the respondent's pay roll, there were 55 employees
in the appropriate bargaining unit on September 21, 1940, at which,
time the Union requested the respondent to bargain collectively.
Membership lists submitted in evidence by the Union show that as of
that date 32 of these employees had designated the Union as their
bargaining representative. The evidence further shows that as of
April 1, 1941, there were 47 employees in the appropriate unit, of
whom 38 had designated the Union as their representative. The
Trial Examiner found that on September 21, 1940, and thereafter,
the Union represented a majority of the respondent's employees in
the appropriate unit. The respondent took no exception to these
findings of the Trial Examiner.
We find that on September 21, 1940, the Union was, and at all
times thereafter has been, the duly designated' representative of a
majority of the employees in the appropriate unit and that, by virtue
of Section 9 (a) of the Act, was the exclusive representative of all
the employees in such unit for the purposes of collective bargaining.
3. The refusal to bargain _
The Union began organizing the employees of the respondent on
or about June 29, 1940, at which time the first employees desig-
nated the Union as their representative for collective bargaining.
8 This finding is, in effect, the same as that made by the Trial Examiner in his Inter-
mediate Report , the only difference being that the Trial Examiner , in designating the
employees in the appropriate unit as those employed in the production and distribution
departments , adopted the terminology of the respondent, whereas the same employees
are separately designated herein according to the working categories alleged in the
complaint. See footnotes 1 and 2, supra.
THE KANSAS UTILITIES COMPANY 945
On August 10 and 17, 1940, Warren L. Morriss, business agent for
the Union, Wilford Coleman, and Fred Campbell, employees, called
upon Frank M. Stone, the respondent's president, at his office in
Fort Scott and informed him that they were attempting to organize
the respondent's employees and would in the future submit a contract
to the respondent. Stone described these meetings as "get acquainted
meetings."
On August 24, 1940, Morriss, Coleman, and Campbell again con-
ferred with Stone at his office. There is no contradiction in the
testimony that at this meeting Morriss presented to Stone a proposed
contract covering hours, working conditions, and other related
matters, together with a schedule of wage rates covering the distribu-
tion and maintenance employees. Morriss informed Stone that the
Union represented a majority of the employees and asked what proof
of this majority Stone wanted. Stone answered that, if Coleman
and Campbell said that the Union represented a majority, he be-
lieved them. Morriss then inquired if that statement would be
conclusive, to which Stone answered that at a later date he might
request proof. None was ever requested. Stone read the proposed
contract aloud, and there was some discussion regarding the mean-
ing of various paragraphs. Stone remarked that the contract
sounded reasonable. Morriss stated that the Union was interested
in a meeting of minds and invited the respondent to submit a
counterproposal. Although this meeting consumed considerable
time, no further negotiating occurred.
The next meeting, held in Stone's office on September 21, was
attended by Stone, Hiller, the respondent's district manager, Douglas
Hudson, the respondent's attorney, Morriss, Coleman, and Campbell.
During this meeting, Stone again read the proposed contract and
remarked as to certain provisions that "we can't do this," that the
contract would "tie their hands," and that the respondent would not
have anything to say about its own business. Morriss again requested
a counterproposal from the respondent. None-was presented at that
time or thereafter. Stone took the position at this and at a subse-
quent meeting that the respondent "was not under the Wagner Act."
At this meeting Morriss presented as a supplement to the proposed
contract a schedule of wages covering the production and operating
employees. Stone looked at it casually and said, "I don't believe
that is important. We won't argue over that." Stone requested
time in order to have Hudson investigate contracts held by the Union
with other companies. It was agreed that the parties would meet
again at,the earliest, possible date.
On October 12, 1940, Morriss, Coleman, and Campbell met with
Stone and Hiller in Stone's office. Stone informed the union repre-
946 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sentatives that the Board of Directors had met but had failed to
grant him authority to act and that the respondent would not do
anything definite about the contract until it was proved that the
respondent was engaged in interstate commerce. At the hearing,
Stone described the position taken by him on September 21 and
October 12, as follows : "My position ... was that I did not have
the sole say by any means as to action toward recognition of the
Union and that it required Board [of Directors] action, and that
there was division among the Board ... as to what action should
be taken, and that was the cause of the delay in these different
interims here"; and "I still didn't have any authority and the thing
was pretty much left at the end of the meeting [of October 12] as
it was at the beginning." No further conferences were held.
On November 9, 1940, Morriss telephoned Stone and asked what
the status of the matter was, to which Stone answered : "Morriss, it
is just the same. They haven't given me power to act and it is just
stalemate ; nothing has been done.... They haven't directly turned
you down, nor they haven't given me authority to go ahead. They
just haven't done anything at all."
On March 17, 1941, Morriss sent Stone a letter requesting a further
meeting for the purpose of negotiating a contract. On April 1, 1941,
Stone replied by letter which reads, in part, as follows :
Frankly, the company does face at the outset the important
question of jurisdiction of the National Labor Relations Board
in this situation. This is a legal question, however, and your
letter, is directed not to any legal matters, but rather contains
a query as to the factors which have caused the company to
doubt the advisability of going into a contract with a union
of which you as business manager seem to be the dominant in-
fluence.
Since you have asked for these reasons, it would seem proper
to state them. When you first introduced yourself, you pre-
sented your business card as Business Manager of the local union
of Topeka, which is asking for a contract with this company in
Southeastern Kansas, and upon that business card appeared a
statement apparently of the principles of yourself and the union.
Those principles over your printed name are stated as follows :
Loaning money for interest secured by a mortgage upon
wealth which belongs to the borrower is the insane abuse of
the capitalistic system which puts a few people in position
to cause depressions in a land of plenty, force government to
provide necessities for needy people, and is causing civilization
to turn away from the capitalistic system.
WARREN L. MORRIS.
THE KANSAS UTILITIES COMPANY 947
All of the investment in this company is represented by money
either loaned for interest , secured by a mortgage upon the com-
pany's assets , or by money invested upon which a return is
hoped in the nature of interest by way of dividends. Your
principles , therefore , indicate that the investment yin this com-
pany's operations is an "insane abuse of the capitalistic system."
We disagree with you in this idea of yours. We believe that
labor has a stake in the success of the employer , but we do not
believe that labor has the sole stake. Your ideas are apparently
to the contrary.
This is one of the matters , outside of the law itself , which has
made it seem inadvisable to hazard the long and satisfactory
relations between the company and its employees by the injec-
tion of your novel economic ideas.
As hereinbefore stated, the respondent never questioned during
negotiations the appropriateness of a unit composed of its produc-
tion , operating , distribution , and maintenance employees , for which
the Union had submitted proposed wage scales ; nor did it suggest
the appropriateness of any other unit.
At the hearing Stone acknowledged that the Board of Directors
had never authorized him to recognize or to negotiate with the
Union.
The evidence leads to only one conclusion : On September 21, 1940,
and thereafter, the respondent had no intention of recognizing or
bargaining with the Union . It never questioned the majority rep-
resentation claims of the Union or the appropriateness of the unit
or units which it sought . Assuming that Stone was not already
vested with power to deal with the Union, the respondent failed to
grant him the necessary authority . It did nothing about accepting
or rejecting the contract presented by the Union, nor did it offer
counterproposals to the Union , although requested to do so. Finally,
seven months after Stone had first met the Union 's representative,
the latter was informed that the respondent , disapproved of him as
a negotiator and would not deal with him. The fact that an em-
ployer may not approve of the representative whom the majority
of its employees have chosen to represent them in collective bargain-
ing does not relieve such employer of the duty to recognize and deal
with that representative as the agent of its employees .4 The Act
grants to the employees,the right to bargain collectively "through
representatives of their own choosing ,"-not through representatives
4 See Matter of Crossett Lumber Company and United Brotherhood of Carpenters and
Joiners of America, Lumber and Sawmill Workers Union , Local 2590 , 8 N. L. R. B 440;
New Era Die Company and International Association of Machinists , Lodge 243, 19
N L. R B. 227.
4 )1270-42-vo1 35--G1
948 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the employer's choosing. By its conduct in all these respects, the
respondent interfered with the right of its employees to bargain col-
lectively through representatives of their choosing.
We find that on September 21, 1940, and at all times thereafter,
the respondent refused to bargain collectively with the Union as the
representative of its employees in an appropriate unit with respect
to rates of pay, wages, hours of employment, and other conditions-
of employment and that the respondent thereby interfered with, re-
strained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 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 de-
scribed in Section I above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
practices, we shall order it to cease and desist therefrom and to take
certain affirmative action which we find necessary to effectuate the
policies of the Act.
We have found that on September 21, 1940, and at all times there-
after, the respondent refused to bargain collectively with the Union
as the exclusive representative of its employees in an appropriate
unit. Accordingly, we shall order the respondent, upon request, to
bargain collectively with the Union as the exclusive representative
of the employees in the appropriate unit in respect to rates of pay,
wages, hours of employment, and other conditions of employment.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Local Union
B-304 , affiliated with the American Federation of Labor , is a labor
organization , within the meaning of Section 2 (5) of the Act.
2. The production , operating , distribution , and maintenance em-
ployees of the respondent , including gang foremen, but excluding
supervisory officials of higher rank than gang, foremen and em-
ployees engaged in managerial, office, clerical , sales, promotion, and
collection work in the operations department , at all times herein
THE KANSAS UTILITIES COMPANY 949
material constituted, and they now constitute a unit appropriate
for the- purposes of collective bargaining, within the meaning of
Section 9 (b) of the Act.
3. International Brotherhood of Electrical Workers, Local Union
B-304, affiliated with the American Federation of Labor, was on Sep-
tember 21, 1940, and at all times thereafter has been, the exclusive
representative of all the employees in such unit for the purposes of
collective bargaining, within the meaning of Section 9 (a) of the
Act.
4. By refusing on September 21, 1940, and at all times 'thereafter, to
bargain collectively with International Brotherhood of Electrical
Workers, Local Union B-304, affiliated with the American Federation
of Labor, as the exclusive representative of its employees in an appro-
priate unit, the respondent has engaged in and is engaging in unfair
labor practices, within the meaning of Section 8 (5) of the Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, respond-
ent has engaged in and is engaging in unfair labor practices, within
the meaning of Section 8 (1) of the Act.
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
The Kansas Utilities Company, Fort Scott, Kansas, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brother-
hood of Electrical Workers, Local Union B-304, affiliated with the
American Federation of Labor, as the exclusive representative of the
production, operating, distribution, and maintenance employees of the
respondent, including gang foremen, but excluding officials of a higher
rank than gang foremen and employees engaged in managerial, office,
clerical, sales, promotion, and collection work in the operations depart-
ment, in respect to rates of pay, wages, hours of employment and other
conditions of employment;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection as guaranteed in Section 7 of the Act.
950 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Upon request, bargain collectively with International Brother-
hood of Electrical Workers, Local Union B-304, affiliated with the
American Federation of Labor, as the exclusive representative of the
production, operating, distribution, and maintenance employees of the
respondent, including gang foremen, but excluding supervisory offi-
cials of a higher rank than gang foremen and employees engaged in
managerial, office, clerical, sales, promotion, and collection work in the
operations department, in respect to rates of pay, wages, hours of
employment, and other conditions of employment;
(b) Post immediately in conspicuous places throughout its entire
system and maintain for a period of not less than sixty (60) consecu-
tive days from the date of posting, notices to its employees stating
(1) that the respondent will not engage in the conduct from which it
is ordered to cease and desist in paragraphs 1 (a) and (b) of this
Order, and (2) that the respondent will take the affirmative action set
forth in paragraph 2 (a) of this Order;
(c) Notify the Regional Director for the Seventeenth Region in
writing within ten (10) days from the date of this Order what steps
the respondent has taken to comply herewith.