The Kentucky Utilities Co.

National Labor Relations Board - Board Decisions

Mar 22, 1948

76 N.L.R.B. 845 (N.L.R.B. 1948)

In the -Matter of THE KENTUCKY UTILITIES COMPANY and INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. of L.
In the Matter of THE KENTUCKY UTILITIES COMPANY and LOCAL
UNION #B-915, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORK-
ERS, A. F. OF L.
Cases Nos. 11-C-1268 and 11-C-13361 (Formerly Case No. 9-C-2185),
respectively.Decided March 22, 1948
Mr. Arthur R. Donovan, for the Board.
Messrs. William H. Townsend and John L. Davis, of Lexington,
Ky., for the respondent.
Mr. Gordon M. Freeman, of Chattanooga, Tenn., Mr. Ira Braswell,
of Winchester, Ky., and Mr. T. P. Lo f tis, of Nashville, Tenn., for the
Unions.
DECISION
AND
ORDER
On March 27, 1947, Trial Examiner Henry J. Kent issued his In-
termediate Report in the above-entitled proceedings, finding that the
respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter, the respondent and
counsel for the Board filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-man
panel consisting of the undersigned Board Members.*
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed. The rul-
' Proceedings in Case No 9-C-2185 initiated in the Board ' s Ninth Region On August
9, 1946, the Board ordered that it be consolidated for hearing with Case No. 11-C-126S
A motion for severance was filed by the respondent on September 13, and a motion for
leave to present oral argument on the motion to sever was filed by the respondent on
September 17, 1946 Both motions were denied on September 20, and on September 27,
1946, the Board by order formally transferred Case No. 9 -C-2185 to the Eleventh Region
as Case No . 11-C-1336.
" Chairman Herzog and Members Murdock and Gray.
76 N. L. R. B., No. 121.
845
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ings.are hereby affirmed. In its brief, the respondent requested the
Board to reconsider its earlier denial of the respondent's motion for
severance of the two consolidated cases herein and for leave to present
oral argument in support thereof. The respondent's request for re-
consideration is denied, as the record does not show any prejudice
to the respondent from the consolidation of the two cases.
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Examiner,
with the following additions and modifications : 2
1. On July 1, 1945, following a Board Order S directing the re-
spondent to bargain with Local B-915 for employees in the Central
Division and proceedings before the War Labor Board, the respond-
ent and Local B-915 signed a collective bargaining contract for a
1-year term. After the signing of the contract, the grievance com-
lnittee of Local B-915 sought unsuccessfully to settle a number of
grievances with the respondent. On July 24, 1945, at the request
of the grievance committee, Ira Braswell, international representa-
tive of the I. B. E. W., together with the local's grievance committee,
called on the manager of the Central Division to request the nego-
tiation of a grievance procedure. The manager refused then and
thereafter to see Braswell. The respondent concedes that it refused
to negotiate grievances with Braswell, but seeks to justify its action
on the grounds that (a) Braswell had disqualified himself as a bar-
gaining agent by his previously expressed hostility to the respondent
and by giving testimony in a prior unfair labor practice proceeding
which was discredited, (b) the Union had agreed with the respondent
that Braswell would not be used in any negotiations with the re-
spondent, and (c) there is no evidence that Braswell was selected
by the members of Local B-915 as their representative.
The Act guarantees to employees the right to bargain collectively
through "representatives of their own choosing." 4 This right also
2 Those provisions of Section 8 (1) and ( 5) of the National Labor Relations Act which
the Trial Examiner herein found were violated , are continued in Section 8 (a) (1) and S
( a) (5) of the Act , as amended by the Labor Management Relations Act, 1947.
We hereby correct the following subsidiary findings of fact contained in the Inter-
mediate Report :
(a) The Trial Examiner found that at the June 17, 1946, meeting in Townsend ' s office,
Loftis requested a meeting with watt or Hanna The record shows, and we find, that
Loftis requested a meeting with watt or Brown and that Davis said both these men were
out of town
(b) The Trial Examiner found that L B Hite was the manager of the Central Division.
The record shows, and we find, that Hite was the manager of the western Division.
(c) The Trial Examiner found that Local B-915 has been the exclusive representative
of employees in the Central Division since September 19, 1945. The record shows, and
we find, that Local B-915 has been the representative of these employees since September
19, 1944.
a Matter of Kentucky Utilities Company, 58 N. L it. B 335.
Section 1 of the Act.
THE KENTUCKY UTILITIES COMPANY 847
includes the right of the duly elected bargaining agent to select the
individuals who will act in its behalf in negotiations with the em-
ployer, free from control by the llatter.0 It is indeed true that a bar-
gaining agent may act unwisely in selecting as a negotiator an individ-
ual who is hostile to the employer 6 or thought to be of questionable
character.7 But this gives the employer no right to veto such choice
by refusing to deal with the designated representative. Hence, Bras-
well's alleged hostility to the respondent and the discrediting of part
of his testimony in a prior Board proceeding did not justify the re-
spondent's refusal to negotiate with the Union, through him. con-
cerning employee grievances.
Nor is the second ground urged by the respondent sufficient to
excuse its refusal to bargain with Braswell. We agree with the Trial
Examiner that no binding legal agreement was made which barred
Braswell from representing Local B-915. Moreover, such an agree-
ment, if made, would be unenforceable, for "It is contrary to the policy
of the Act for an employer, either by unilateral act or by contract
with the exclusive representative of his employees, to limit the class or
group from among whom the employees may thereafter be represented
for the purposes of collective bargaining." 8
Finally, the respondent argues that there was no evidence that Bras-
well had been selected by the members of Local B-915 as their rep-
resentative. The answer to this is that no such proof was necessary,
as Braswell was the properly accredited representative of the bar-
gaining agent; his authority to act was not questioned at the time of
the respondent's refusal to bargain, either by the employees or by the
respondent itself.9
8 See Matter of The Oliver Corporation , 74 N. L R B . 483 ; Matter of New Era Die
Company, 19 N. L It. B 227, enf 'd as modified , 118 F . ( 2d) 500 (C C A 3) , N. L R B v.
The Blanton Company , 121 F. (2d) 564, 571 (C C. A. 8) , Matter of The Hancock Brick h
Tile Company, 44 N. L. It. B 920 ; Matter of The Kansas Utilities Company, 35 N. L R B
936
6 Braswell testified that he regarded his relationship to the respondent as purely a busi-
ness one The respondent gave him no opportunity to demonstrate whether this was
the fact.
'It should be noted that , in the earlier unfair labor practice proceeding , the Board
merely found that Braswell had "overstated and exaggerated" the substance of certain
remarks made to him by an official of the respondent ( 28 N L . R B at 562). The Board
did not undertake to find whether Biaswell had told a deliberate lie or had simply been
mistaken in recollecting certain events. The Board found that Braswell had been dis-
criminatorily discharged and ordered his reinstatement
Matter of The Oliver Corporation , 74 N L R B 483
The respondent refers to the anti-Braswell petitions allegedly signed by a majority of
emplotiees in the Central and Western Divisions, as proof that the members of Local B-915
did not desire to be represented by Biaswell . However , these petitions were circulated
long after the refusal to deal with Braswell In addition , the value of these petitions as
evidence is dubious both because no proper foundation was laid for their admission and
because the respondent's super, isory employees apparently aided in their circulation.
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find, as did the Trial Examiner, that by refusing
to recognize and deal with Ira Braswell on and after July 24, 1945,
the respondent refused to bargain collectively with Local B-915 as the
exclusive bargaining representative of its employees in the Central
Division, and thereby interfered with, restrained, and coerced its em-
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
2. The respondent seeks to justify refusal to bargain with Local
B-816 for employees in the Western Division on the ground that Local
B-816 is not composed exclusively of employees of the respondent.
More specifically, it adverts to the fact that some of the members of
Local B-816 are employees of the Tennessee Valley Authority, the
organization which Braswell said he desired to see supplant the re-
spondent. Whether employees of a given employer shall be organ-
ized in a mixed local or in a separate local is an internal union matter
that concerns only the employees and their bargaining agent. An em-
ployer cannot lawfully refuse to bargain because he objects to the mode
of organization selected by his employees. The Circuit Court of Ap-
peals for the Tenth Circuit said, in rejecting as a defense to a refusal
to bargain the assertion that, because a majority of members of the
bargaining agent were employees of a rival industry, the agent might
force terms on it which were harmful to the respondent but advan-
tageous to its rival : "o
"An employer is bound to deal with any union which represents a
majority of its employees, regardless of whether it also represents
employees in a rival industry. The argument that such a union
may force bargaining terms on Petitioner [respondent] disadvan-
tageous to itself is untenable, because under the Act an employer
is not obligated to agree to any terms proposed by the bargaining
agency disadvantageous to itself. Y. L. B. B. v. Jones c6 Laughlin
Steel Corp. supra."
Accordingly, we find, as did the Trial Examiner, that by refusing on
and after February 28, 1946, to bargain with Local B-816, which had
been designated by the certified bargaining representative, I. B. E. W.,
to act for the employees in the Western Division, the respondent re-
fused to bargain collectively with I. B. E. W. as the exclusive repre-
sentative of its employees in the Western Division, and thereby inter-
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed in Section 7 of the Act n
"Pueblo Gas & Fuel Company v N. L R B, 118 F ( 2d) 304 , 308 (C C A. 10)
11 In making this finding, we do not imply , any more than did the Trial Examiner, that
the respondent unlawfully refused to bargain with the I B. E. W . during the time that the
latter was endeavoring to negotiate a joint -contract covering the employees in both the-
Central and western Divisions.
THE KENTUCKY UTILITIES COMPANY 849
3. On or about July 1, 1946, by means of Policy Letter No. 3, the
respondent unilaterally established new wage and working conditions
for the employees in all its divisions, including the Central and West-
ern Divisions. By this conduct, we find that the respondent violated
Section 8 (1) and (5) of the Act .12
4. We agree with the Trial Examiner that, by the activities of
supervisors Thurman and Dempsey in connection with the circulation
of the anti-Braswell petitions, the respondent violated Section 8 (1)
of the Act.
5. We also agree with the Trial Examiner that, if Local B-915
has lost its majority among the employees in the Central Division, a
fact which has not been established, the loss may be attributed to
the respondent's unfair labor practices, and that effectuation of the
policies of the Act requires that the respondent be ordered to bargain
with Local B-915 for employees in the Central Division.-
THE REMEDY
The unfair labor practices found to have been committed by the
respondent in this proceeding, when considered in connection with
the unfair labor practices which the respondent previously com-
mitted,14 indicate an attitude of hostility on the part of the respondent
to the purposes of the Act and the likelihood of the commission of
other unfair labor practices in the future. Accordingly, in addition
to ordering the respondent to cease and desist from the specific unfair
labor practices which we have herein found that the respondent has
committed, we shall order the respondent to cease and desist from in
any manner infringing upon the rights of employees guaranteed in
Section 7 of the Act.
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondent, The Kentucky
Utilities Company, Lexington, Kentucky, and its officers, agents, suc-
cessors, and assigns, shall :
12 May Dep't Stores V . N L R B , 326 U S. 376 ; Allis-Chalmers Mfg Co. v. N. L. R B ,
162 F ( 2d) 435, 440 (C C A. 7) ; N. L. R B. v. Winona Textile Mills , Inc., 160 F. (2d)
201, 209 (C C. A. 8).
13 Franks Bros Co. v. N. L R. B., 321 U . S 702; N. L. R. B . v. Swift & Co ., 162 F. (2d)
575 (C C A. 3), cert . denied, 20 L. R R. hI 2677.
14 Matter of Kentucky Utilities Company, 58 N L. R B 335 ; Matter of The Middle West
Corporation and Kentucky Utilities Company, 28 N. L R B. 540
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Refusing to bargain collectively with Local Union B-915, In-
ternational Brotherhood of Electrical Workers, A. F. of L., as the
exclusive representative of all production, maintenance, and construc-
tion employees of the respondent in its Central Division, including the
chief operator at Dix Dam, but excluding the division manager, the
district managers, the local managers who do not spend substantial
time on service work, office employees, technical engineers, the super-
intendent of construction, the salesmen, the janitors and janitresses,
the foreman of the maintenance crew at Danville, the division crew
foreman at Danville, the service-man manager at Eminence, the serv-
ice-man manager at Leitchfield, the ice-production superintendent at
Glasgow, the service man at Upton, the superintendent and assistant
superintendent at Dix Dam, the foreman of the division line-crew at
Shelbyville, the military guards at Dix Dam, the gas production fore-
man at Danville, the ice- and water-plant manager at Stanford, the
ice-production engineer at Lebanon, the chief operator-ice and elec-
tricity at Franklin, the gas- and water-production superintendent at
Shelbyville, the service-man managers at Hodgenville and Wilmore,
and all supervisors and guards as defined in the amended Act; 1'S
(b) Refusing to bargain collectively with International Brother-
hood of Electrical Workers, A. F. of L., as the exclusive representative
of all production, maintenance, and distribution employees of the
respondent in its Western Division, including turbine room operators,
boiler operatives, and service foremen at Barlow, Fulton, Earlington,
and Greenville, but excluding chief operators at ice plants, district
engineers, assistant division engineers, district, division, and local
managers, power plant superintendent, assistant power plant super-
intendents, meter superintendents, gas plant superintendents, crew
foreman, commercial managers, superintendents of construction, sub-
station superintendents, commercial service engineers, clerical em-
ployees, office employees, service advisors, janitors and janitresses,
temporary employees, seasonal employees, and all supervisors and
guards as defined in the amended Act; 16
11 This is the same unit previously found appropriate by the Board except that the words
"and all supervisors and guards as defined in the amended Act " have been added to conform
with the changes made by the Labor Management Relations Act, 1947 The respondent has
excepted to the inclusion in the unit of the chief operator at Dix Dam. We find that this
individual is not a supervisor within the meaning of the definition contained in the amended
Act, and is propeily included in the unit.
16 This is the same unit previously found appropriate by the Board on stipulation of the
parties, except that the closing phiase has been added to conform with the amended Act
In Its exceptions , the respondent objects to the inclusion of service foremen in the unit.
There is no evidence either in the present record or in the representation case record as to
the duties of these employees. As previously stated, the respondent stipulated that they
be included in the unit in the representation case . Under these circumstances, we will not
disturb our pievious unit finding.
THE KENTUCKY UTILITIES COMPANY 851
(c) In any other manner interfering with, restraining , or coercing
its employees in the exercise of the right to self -organization , to form
labor organizations , to join or assist International Brotherhood of
Electrical Workers, A. F. of L., or any other labor organization , to bar-
gain collectively through representatives of their own choosing, and to
engage in concerted activities for the purposes of collective bargaining
or other mutual aid or protection, as guaranteed in Section 7 of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
'(a) Upon request, bargain collectively with Local Union B-915, In-
ternational Brotherhood of Electrical Workers, A . F. of L., through its
accredited representatives , including Ira Braswell , as the exclusive
representative of all employees in the Central Division unit, described
above, with respect to grievances, labor disputes, wages, rates of pay,
hours of employment, and other conditions of employment, and, if an
understanding is reached , embody such understanding in a signed
agreement ;
(b) Upon request, bargain collectively with International Brother-
hood of Electrical Workers, A. F. L., as the exclusive representative of
all employees in the Western Division unit, described above, with re-
spect to grievances, labor disputes, wages, rates of pay, hours of em-
ployment, and other conditions of employment, and, if an understand-
ing is reached, embody such understanding in a signed agreement;
(c) Post at each of its properties within the Central and Western
Divisions copies of the notice attached hereto and marked "Appendix
A." 17 Copies of such notice, to be furnished by the Regional Director
for the Ninth Region,1' shall, after being duly signed by the respond-
ent's representative, be posted by the respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days
thereafter , in conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall be taken by
the respondent to insure that such notices are not altered, defaced, or
covered by any other material;
(d) Notify the Regional Director for the Ninth Region (Cincinnati,
Ohio), in writing, within ten (10) days from the date of this Order,
what steps the respondent has taken to comply herewith.
11 In the event that this Order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted before the words " A Decision and Order " the words "Dec] ee of the United
States Cucuit Court of Appeals Enforcing"
18 The respondent s Central and Western Divisions are now located within the Board's
Ninth Region
781002-48-vol 70-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purposes of collective bargaining or
other mutual aid or protection.
WE WILL BARGAIN collectively upon request with LOCAL UNION
B-915, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
A. F. OF L., through its accredited representatives, including Ira
Braswell, as the exclusive representative of all employees in the
Central Division unit described herein, and with INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, A. F. OF L., as the ex-
clusive representative of all employees in the Western Division
unit described herein, with respect to grievances, labor disputes,
wages, rates of pay, hours of employment, or other conditions
of employment, and,.if an understanding is reached, embody
such understanding in a signed agreement . The bargaining units
are:
(a) All production, maintenance, and construction employees
of the respondent in its Central Division, including the chief
operator at Dix Dam, but excluding the division manager, the
district managers, the local managers who do not spend substan-
tial time on service work, office employees, technical engineers,
the superintendent of construction, the salesmen, the janitors and
janitresses , the foreman of the maintenance crew at Danville, the
division crew foreman at Danville, the service-man manager at
Eminence, the service-man manager at Leitchfield, the ice-pro-
duction superintendent at Glasgow, the service Iran at Upton, the
superintendent and assistant superintendent at Dix Dam, the
foreman of the division line-crew at Shelbyville, the military
guards at Dix Dam, the gas production foreman at Danville,
ice- and water-plant manager at Stanford, the ice-production
engineer at Lebanon, the chief operator-ice and electricity at
Franklin, the gas- and water-production superintendent at
Shelbyville, the service-man managers at Hodgenville and Wil-
more, and all supervisors and guards as defined in the amended
Act;
THE KENTUCKY UTILITIES COMPANY 853
(b) All production , maintenance and distribution employees
of the respondent in its Western Division, including turbine room
operators , boiler operatives , service foremen at Barlow, Fulton,
Earlington , and Greenville , but excluding chief operators at ice
plants, district engineers , assistant division engineers , district,
division , and local managers , power plant superintendent , assist-
ant power plant superintendents , meter superintendents , gas plant
superintendents , crew foreman, commercial managers, superin-
tendents of construction , substation superintendents , commercial
service engineers , clerical employees , office employees , service ad-
visors, janitors and janitresses , temporary employees, seasonal
employees , and all supervisors and guards as defined in the
amended Act.
------------------------------
( Employer)
By------------------------------
(Representative ) (Title)
Dated------------------------
This notice must remain posted for sixty (60) days from the date
hereof, and must not be altered, defaced, or covered by any other
material.
INTERMEDIATE REPORT
Mr. Arthur R. Donovan, for the Board.
Messrs. William H. Townsend and John L. Davis, of Lexington, Ky., for the
respondent.
Mr. Gordon M. Freeman, of Chattanooga, Tenn., Mr. Ira Braswell, of Win-
chester, Ky., and Mr. T. P. Loftss, of Nashville, Tenn., for the Unions.
STATEMENT OF THE CASE
Upon amended and separate charges duly filed on August 26, 1946, by Local
Union #B-915, International Brotherhood of Electrical Workers, A. F. of L., in
Case No. 11-C-1336, herein called Local B-915, and by International Brotherhood
of Electrical Workers, A. F'. of L., in Case No. 11-0-1268, herein called I. B. E. W.,
the National Labor Relations Board, herein called the Board, by its Regional
Director for the Eleventh Region (Indianapolis, Indiana), issued its complaint
dated September 6, 1946, against The Kentucky Utilities Company, Lexington,
Kentucky, herein called the respondent, alleging that the respondent had engaged
in and was engaging in unfair labor practices 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, charges, and notice of
hearing were duly served upon the respondent, I. B. E. W. and Local B-915,
I. B. E. W.
Concerning the unfair labor practices, the complaint alleged in substance that
the respondent: (1) on or about July 24, 1945, and at all times thereafter, refused
to bargain collectively with Local Union #B-915, the certified exclusive represen-
tative of the respondent's Central Division employees in an appropriate unit, by
refusing to bargain with Ira Braswell, a designated agent of Local B-915; (2)
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on or about February 10, 1946, and at all times thereafter, refused to bargain
collectively with I. B. E. W., the certified exclusive representative for the re-
spondent's Western Division employees in an appropriate unit; and (3) by
reason of the above acts and conduct interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of the Act.
The respondent duly filed an answer failing to deny the jurisdictional allegations
of the complaint but denying the commission of the unfair labor practices alleged.
In addition, the answer affirmatively avers in effect: Braswell is an unfit person
to represent respondent's employees because of his openly expressed hostile
attitude toward therespondent and its officers ; that I. B. E. W. had agreed with
the respondent to exclude Braswell from bargaining negotiations with the re-
spondent; that I. B. E. W. never has been the duly selected majority representa-
tive of the employees in the respondent's Western Division ; and that because
Local B-816, a local union established by I. B. E. W. in the territory covered by
the Western Division, is not composed solely of employees of the respondent, it
is incapable of properly representing such employees as a bargaining agent act-
ing on behalf of I. B. E. W
Pursuant to notice, a hearing was held at Louisville, Kentucky, on October
29 and 30, 1946, before the undersigned, Henry J. Kent, the Trial Examiner duly
designated by the Chief Trial Examiner The Board and the respondent were
represented by counsel , I. B. E. W. and Local B-915 by representatives, and all
participated in the hearing. Full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues was afforded
all parties. At the conclusion of the hearing, motions by counsel for the Board
and for the respondent to conform the pleadings to the proof in respect to formal
matters were graiited Brief oral argument was presented by counsel for the
Board, and at that time the respondent was granted leave to file a brief, which
brief has been received by the undersigned.
Upon the entire record in the case and from his observation of witnesses, the
undersigned makes the following :
FINDINGS Or FACT
I THE BUSINESS OF THE RESPONDENT
The Kentucky Utilities Company, a Kentucky corporation, is engaged in the
production, transmission, and distribution of electrical energy, the production and
distribution of gas and ice, and in the pumping, purification, and distribution of
water. Its distribution lines connect with the distribution lines of the South
Fulton Power and Light Company and Dixie Power and Light Company, both of
which are located in the State of Tennessee The company's operations cover
the entire State of Kentucky. It sells electricity to and purchases electricity
from the Tennessee Valley Authority, and exchanges electricity in emergencies
with the Central Illinois Public Service Company.
The company divides its operations and facilities into four operating divisions.
This proceeding is concerned only with its Central and Western Divisions. The
purchases of the respondent during a calendar year in these two divisions consist
principally of coal, operating and construction materials, and electrical energy,
which are valued in excess of $1,000,000, of which more than 25 percent originated
from outside the State of Kentucky.
The respondent supplies electrical enei gy to interstate railroads, telegraph com-
panies, radio stations, and numerous large corporations engaged in interstate
commerce. The respondent's sales for the two divisions in 1945 exceeded in value
$2,000,000.
THE KENTUCKY UTILITIES COMPANY 855
The respondent concedes that it is engaged in commerce within the meaning of
the Act,
II THE ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers and Local Union B-915, Inter.
national Brotherhood of Electrical Workers, affiliated with the American Feder-
ation of Labor, are labor organizations admitting to membership employees of the
respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background of unfair labor practices and brief factual synopsis
In 1937 I. B. E. W. commenced an organizational campaign in the four operating
divisions of the respondent's system. In connection with the campaign, I. B.
E. W. filed a petition for investigation and certification of representatives. Fol-
lowing a hearing duly held upon the said petition, the Board on December 13,
1938, issued its direction of election,' ordering that an election be held in a unit
substantially composed of all production and maintenance employees in the re'
spondent's four divisions. I. B. E. W. lost the election and on February 10, 1939,
the Board dismissed the said petition.2
I. B. E. W. thereafter duly filed charges alleging that respondent had engaged
in and was engaging in unfair labor practices within the meaning of Section
8 (1) and (3) of the Act. Following the issuance of a complaint dated March
26, 1940, by the Regional Director for the Board's Ninth Region (Cincinnati,
Ohio), a hearing was duly held before a Trial Examiner of the Board. On De-
cember 13, 1940, following the issuance of an Intermediate Report by the Trial
Examiner, and exceptions taken thereto by the respondent, the Board after con-
sidering the entire record issued its decision and order in the cause.' It found
therein that the respondent had interfered with the self-organizational rights
of its employees and that it had discriminatorily discharged four employees, one
of whorn was Ira Braswell. The respondent was ordered to reinstate the said
four employees. Braswell refused to accept reinstatement but instead took a
position with the I. B. E. W. and has been for several years last past an inter-
national representative for this organization. In this decision the Board dis-
credited certain testimony given at the hearing by Braswell.'
I. B. E. W. thereafter continued its efforts to organize the respondent's em-
ployees, confining its later efforts insofar as this record shows, to the organization
of employees in the Central and the Western Divisions.'
' Matter of Middle West Corporation, Kentucky Utilities Company, et al., 10 N. L. R. B.
618.
2 Matter of Kentucky Utilities, et al., 11 N. L. R. B. 165
i See Middle West Corporation, Kentucky Utilities Company, et al, 28 N. L. R. B. 540.
4 The following appears in the said decision (28 N. L. R. B 540, 562) : "Braswell [testi-
fied that he] saw Watt [the respondent's president] for a second time in the latter part of
June, [1938] and testified that on that occasion Watt made disparaging remarks concerning
the Board and the Union and asked him to cooperate with the respondent by furnishing
the names of active members in their employ. Watt denied Braswell's version of this con-
versation and testified that he merely told Braswell that he would approve any arrangement
for reemployment that Braswell could work out with W D Hackett, district manager at
Winchester. We are in agreement with the conclusion of the Tual Examiner that Braswell
overstated and exaggerated the substance of Watt's remarks to him and find that Watt did
not make the statements attributed to him by Braswell."
6 The other two divisions, not involved in the instant case, are known as the Mountain
and Blue Grass Divisions. The Mountain Division has been organized by another labor
organization not named in the record and a written contract is currently in force covering
employees of that division.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On May 19, 1943, I. B. E. W. was certified by the Board as the statutory rep-
resentative of the employees in the Central Division. At or about the time of said
certification, the geographical limits and the employee personnel in the division
was altered to some extent by adding thereto property acquired from another
utility company and by selling and exchanging certain properties within the
Central Division. The respondent claimed that the changes effected a change
in the bargaining unit and refused to bargain upon request with Local B-915, a
newly established local set up by I. B. E. W. for the employees of respondent
working in its Central Division. Charges were filed with the Board's Regional
Director of the Ninth Region by Local B-915 alleging a refusal to bargain and
interference with the organizational rights of employees in its Central Division.
Thereafter, following the issuance of complaint and a hearing held thereon
by a Board's Trial Examiner and upon consideration of the entire record,
including exceptions filed by the respondent to the Trial Examiner's Interme-
diate Report, the Board on September 19, 1944, issued its order and decision.
The decision in effect ratified and confirmed the Board's prior unit finding and
ordered the respondent to bargain with Local B-915 and to cease interfering
with the self-organizationad rights of its employees.°
In October 1944, a bargaining committee for Local B-915, comprised of Inter-
national Vice-President Freeman of I B. E W., three of the officers of Local
B-915 and International Representative Ira Braswell of I. B E. W., the latter
being the only international representative of I. B. E. W. who resided in the
State of Kentucky, met with representathes of the respondent to negotiate a
contract for the employees at the Central Division At the first meeting, the
respondent objected to the participation of Braswell in the negotiations, claim-
ing that he had previously expressed hostility toward the respondent and its
officials. Local B-915 was a newly established local led by officers inexperienced
and lacking skill in bargaining procedures, and although Braswell would be the
representative of I. B. E. W. selected to adhise and assist the local in its prob-
lems, Freeman consented to exclude Braswell from these contract negotiations
in order to avoid further delay in the contract negotiations. The negotiations,
after a delay of about 9 months occasioned by proceedings taken before the Na-
tional War Labor Board to iron out disputed terms of the proposed contract,'
finally resulted in the signing of a contract with Local B-915 for a term of 1
year commencing on July 1, 1945, with an automatic renewal clause providing
for yearly extensions thereafter, absent the service of a 30-day notice of can-
cellation prior to any anniversary date. After this contract was signed the
grievance committee of Local B-915 attempted unsuccessfully to settle a number
of pending grievances with management. The matter was reported to Braswell
in his capacity as the I. B. E. W. international representative in the area. On
or about July 24, 1945, Braswell. accompanied by the grievance committee of
the local, called upon C. B. Hanna, the manager of respondent's Central Division,
to request that a procedure for handling grievances be negotiated and adopted.
Hanna refused to meet with the group unless Braswell withdrew, and sent out
word that he would only talk with the employee members of the committee.
On July 28, 1945, Braswell filed a charge with the Board alleging that this
conduct of the respondent constituted a refusal to bargain. The respondent
0 See Kentucky Utsiities Company , et al , 58 N. L R. B. 335
' One of the disputed issues concerned a provision desired by the respondent which pro-
vided that Braswell should be excluded from all bargaining negotiations with the respond-
ent. As more particularly discussed below, this issue was withdrawn as a disputed issue
before the War Labor Board and it was not included in the contract signed by the parties.
THE KENTUCKY UTILITIES COMPANY 857
admits that it has at all times since refused to carry on any negotiations with
Braswell, as an agent of Local B-915 or I. B E. W.
On February 4, 1946, the Board, following an election held among the em-
ployees in an appropriate unit at the Western Division, certified I. B. E. W. as
the exclusive representative of the said employees in that division. In view
of the respondent's earlier refusal to discuss matters of union concern with
Braswell, Vice-President Freeman of I. B. E. W. assigned International Repre-
sentative Loftis, of Nashville, Tennessee, to assist Local B-816 of Paducah,
Kentucky, in conducting bargaining negotiations on behalf of the employees in the
Western Division. On February 28, 1946, Loftis called upon the respondent and
requested recognition for I. B. E. W. as the exclusive representative of the
Western Division employees. He was then informed that the respondent had
not yet decided whether or not it would recognize the Board's certification.
Subsequently, by letters dated March 4 and 18, 1946, Loftis requested the re-
spondent to recognize and bargain with Local B-816 on behalf of the Western
Division employees. Both of these requests were ignored by the respondent.
On May 16, 1946, Loftis by letter requested the respondent to meet with a joint
committee appointed by Locals B-915 and B-816 for the purpose of negotiating
a joint contract covering the employees in the certified bargaining units in both
the Central and Western Divisions! This letter requested an answer by May
25. No reply was received until June 5, 1946, at which time the respond-
ent stated that it would not bargain with Local B-816 for the Western
Division employees because the local was not composed solely of employees
of the respondent. On May 29, Local B-915 by letter notified the respondent
that the existing contract covering the employees in the Central Division would
be terminated as of June 30, 1946, the end of the first yearly term. On or about
the same date strike notices were duly served by I. B. E. W.,. in conformance
with the War Labor Disputes Act, stating that a strike would be called on
July 1, 1946, in the respondent's Central and Western Divisions. Fruitless con-
ciliation meetings were held on June 17, 29 and July 5, 1946, in an effort to
avert the strike. On July 8, 1946, many of the employees in the two divisions
went out on strike. The strike was unsuccessful, however, and substantially
all of those out on strike returned to work by July 22, 1946. Shortly there-
after, Local ,B-915 and Local B-816 by letters requested the respondent to bar-
gain separately with them on behalf of the Central and Western Division em-
ployees, respectively. Both of the requests were denied and bargaining nego-
tiations have not been resumed since that time.
B. The refusal to bargain ; interference, restraint , and coercion
1. Events preceding I. B E. W.'s demand to negotiate a contract in the
Central Division
On January 6, 1943, the Board ordered an election be held among the respond-
ent's employees in its Central Division.' The Board found therein that the
appropriate unit consisted of the following :
8It will be noted that I. B. E. W . did not seek to bargain jointly for the two certified
bargaining units until the respondent had refused to recognize and deal with Local B-816
as a bargaining agent for the certified representative of the Western Division employees.
The reasons advanced by the respondent for refusing to bargain with agents designated
by the employees in each of the divisions are substantially similar , namely, that the
respondent objected to the agents selected by the statutory representative to conduct bar-
gaining negotiations for the employees.
9 Matter of Kentucky Utilities Company, et al., 46 N. L R B. 818.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All production, maintenance, and construction employees of the Central
Division of the Company, including the chief operator at Dix Dam but
excluding the division manager, the district managers, the local managers
who do not spend substantial time on service work, office employees, techni-
cal engineers, the superintendent of construction, the salesmen, the janitors
and janitresses, the foreman of the maintenance crew at Danville, the divi-
sion crew foreman at Danville, the service manager at Eminence, the service-
man manager at Leitchfield, the ice-production superintendent at Glasgow,
the service man at Upton, the superintendent and assistant superintendent
at Dix Dam, the foreman of the division line crew at Shelbyville, the military
guards at Dix Dam, the gas-production foreman at Danville, the ice- and
water-plant manager at Stanford, the ice-production engineer at Lebanon,
the chief operator-ice and electricity at Franklin, the gas- and water-produc-
tion superintendent at Shelbyville, and the serviceman managers at Hodgen-
ville and Wilmore.
Thereafter, I. B. E. W., the only labor organization appearing on the ballot,
won the election 10 On May 19, 1943, the Board certified I B. E. W. as exclusive
representative of all the respondent's employees in its Central Division, within
the above-described unit, for the purposes of collective bargaining with respect
to rates of pay, wages, hours of employment and other conditions of employment.
On July 2 and July 10, 1943, the I B E W. requested respondent to bargain.
On July 15, 1943, the respondent refused to bargain with I B. E. W. for the
alleged reason, among others, that geographic and personnel changes wrought
in the division, subsequent to the certification, had resulted in a loss of majority
representation by the Union in the said unit and that the unit heretofore found
appropriate by the Board no longer exists. On July 17, 1943, Local B-915
filed with the Regional Director of the Ninth Region a charge alleging inter alie
that the respondent refused to bargain Subsequent to the filing of the said
charge the respondent issued certain letters and statements to its employees
indicating that it preferred to bargain with them individually. A complaint
was issued by the Board's Regional Director in the Ninth Region and a hearing
was duly held thereon before a Trial Examiner of the Board in Lexington,
Kentucky, on March 13, 1944. Thereafter, the Trial Examiner issued his Inter-
mediate Report finding that the respondent had engaged in and was engaging
in unfair labor practices within the meaning of Section 8 (1) and (5) of the
Act. Exceptions were taken to the Intermediate Report and upon consideration
of the entire record, the Board on September 19, 1944, issued its Decision and
Order. This decision, in effect, ratified and confirmed the previous unit finding
and the earlier certification of I B. E. W. as statutory representative for the
employees in the Central Division ; found that the respondent had refused to
bargain on July 15, 1943, and thereafter ; ordered the respondent to bargain with
Local B-915 of I. B. E. W. upon request ; and to cease and desist from interfering
with the self-organizational rights of its employees.11
2. The July 1, 1945, contract with Local B-915 in the Central Division; respond-
ent's refusal to recognize and deal with International Representative Braswell
The complaint in the instant case, in substance, alleges that Ira Braswell,
as the duly designated representative of Local Union B-915 (I B. E. W ),
requested the respondent to bargain with it on or about July 24, 1945, and that
10 The election was conducted on February 3, 4, and 5, 1943
11 Matter of Kentucky Utilities Company, et al , 58 N. L R B 335.
THE KENTUCKY UTILITIES COMPANY 859
the respondent at all times thereafter has failed and refused to bargain with
Braswell as said designated agent. The respondent admits that it refused to
recognize and deal with Braswell, but contends that by reason of the hostility
shown by Braswell to respondent and its officers, and for the additional reason
that I. B. E. W. had entered into an agreement with the respondent provid-
ing that Braswell would be excluded from bargaining negotiations with the
respondent.
The record shows that shortly after the issuance of the Board's decision on
September 19, 1944 (58 N. L. R. B. 335), confirming I. B. E. W's certification,
arrangements were made for a meeting to be held on some date in October 1944,
not stated in the record, at the office of the respondent in Lexington, Kentucky,
for the purpose of entering into contract negotiations with the respondent for
its employees in the Central Division. Vice-President E W. Brown, C. B. Hanna,
the manager of the Central Division, and William Townsend, respondent's coun-
sel, attended the meeting as representatives for the respondent. International
Vice-President Freeman of I. B E W., E. H Thacker, Lewis Robinson and
Gordon Turpin, the latter named three persons being respectively, the president,
financial secretary, and secretary of Local B-915, were present there as rep-
resentatives of the Union. International Representative Ira Braswell12 had
accompanied the above-named I. B. E. W. representatives to this meeting with
the purpose of participating in the negotiations. Before the meeting formally
opened, Townsend called Freeman into a private office and in a conversation
with Freeman objected to Braswell's participation in the negotiations because
of alleged personal antipathy existing between Braswell and the respondent's
officials 13 Following this conversation Freeman acceded to Townsend's request
that Braswell be excluded from the negotiations concerning this contract.
Freeman then requested Braswell to withdraw from the meeting and told him to
wait for Freeman at their hotel. At this conference, an agreement was reached
regarding substantially all the provisions of a proposed contract. The parties,
however, were unable to agree upon five or six of the terms desired by one of
the other of the parties'} A dispute case was thereafter certified to the War
12 Braswell was the only international representative of I. B. E W. who resided in the
State of Kentucky and for that reason I. B E. W. desired to use his services in matters
concerning the organization in Kentucky.
13 Brown testified "The Company has declined to negotiate with the Union through Mr.
Braswell due to his personal antagonism to the Company which he's expressed many times;
and we do not believe that a man-in fact, we are firmly in the opinion that anyone who
has a personal grievance against the Company is not a fit person to represent grievances,
and present grievances and settle them, of other employees , nor is he capable of negotiating
an agreement for them "
Brown's above testimony was of a conclusionary nature and was obviously based upon
reports lie had received from others regarding remarks allegedly made by Braswell To
support Brown's claim, employees Lienville, Lawrence, Newby, Johnson and Ballard were
called to give testimony, by the respondent They testified, in substance, without substan-
tial contradiction • they had attended one or more I. B E. W. organizational meetings
conducted by Braswell from 1942 to 1944 ; that at some of these meetings they heard
Braswell state, he had a score to settle with the respondent; that he would not care if the
Company went broke financially because the T. V A would take over the business and all
of the employees would be retained , and that President Watt and Vice-President Reed
were liars and did not care a damn about the welfare of. the employees. In addition,
Lawrence testified that on one occasion when Braswell stated that Watt and Reed did not
care a damn about the employees, one of the company's employees present arose and angrily
asserted, "Now, you've said just about all you're going to" whereupon Braswell "sort of
apologized" and started to talk about other matters concerning the employees.
"Among the issues in controversy was a provision desired by the respondent that it
should not be required to negotiate with any former discharged employee ( obviously refer-
ring to Braswell).
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Labor Board and on February 6, 1945, the parties participated at a panel hear-
ing with agents of that Board at Louisville, Kentucky.
During the hearing before the War Labor Board panel on the morning of
February 6, 1945, Squire Ogden, an attorney representing the respondent at the
panel hearing, proposed to International Representative Wilson present there as
the representative of I. B E W, that the contract provision aimed at Braswell
could be eliminated if I. B. E. W. would agree to exclude Braswell from all
further negotiations with respondent. According to Ogden's uncontroverted
testimony:'" Wilson told Ogden that he would discuss Ogden's proposal with the
officers of Local B-915 present at the hearing during the noon recess ; that after
the recess Wilson told him the officers of the Local expressed no objections to
excluding Braswell from future negotiations; 36 and that pursuant to this conver-
sation, Ogden and Wilson entered into a written stipulation providing in effect
that the said provision affecting Braswell was withdrawn from consideration
by the panel with a reservation, however, that either party might resubmit the
said matter to the National War Labor Board in Washington, D C., by way of
briefs, if desired This stipulation was filed with the panel Thereafter, on
February 28, 1945, Ogden by letter informed Wilson that Ogden had received
information that the hearing panel was about to forward its report to the National
War Labor Board in Washington. In the letter Ogden also stated that while he
did not question the good faith of Wilson and the local union regarding their
willingness to exclude Braswell from negotiations, the Respondent insisted upon
a definite understanding with I. B. E. W. regarding it, and suggested that at the
time a final agreement was executed, the I B. E W , by letter, should agree not
to designate Braswell to represent it in any future negotiation with respondent or,
in the alternative, that the company should write a letter to I. B E. W. of similar
tenor for an endorsement thereon by the Union "agreed to." Wilson by letter
dated March 6, 1945, replied that the assignment of representatives rests with
an International Vice President of I. B E W. who would endeavor to designate
representatives "best able to serve locals" ; that it is the policy of the Union and
its responsibility to serve local unions in a manner that would tend to create and
establish harmonious and cooperative relations between an employer and
I. B. E W.; that I. B. E W. is opposed to entering into commitments regarding
who it might designate to represent it in negotiation conferences, but that Wilson
was sure that International Vice-President Freeman would do everything possible
to create a better relationship between the Kentucky Utilities Company and
I. B. E. W. Ogden further testified that he forwarded copies of the above corre-
spondence to Townsend on March 8, 1945. The provision in question was never
presented to the National War Labor Board for consideration and ruling.
On some day in May 1945, on a date not stated in the record, the War Labor
Board issued its Directive Order in the afore-mentioned matter. On June 6,
1945, Wilson requested a conference with the respondent to consummate the pro-
posed contract. The day of June 19, 1945, was mutually agreed upon for the
meeting. Wilson headed up the I. B. E. W. negotiating committee which was
composed of Wilson, Thacker, Robinson, and Turpin, the latter three being officers
11 Counsel for the Board stated on the record that Wilson was confined to his home with
an acute attack of appendicitis and for that reason was unavailable to appear and give
testimony at the instant hearing
1G In view of the statements made in letters exchanged between Ogden and Wilson sub-
sequent to this time, as discussed below, it appears that Wilson had informed Ogden that
only an International Vice-President of I. B. E W bad authority to delegate or exclude
international representatives regarding their participation at bargaining conferences with
employers.
THE KENTUCKY UTILITIES COMPANY 861
of Local B-915. Vice-President Brown and Townsend were present there as
representatives of the respondent. According to the testimony of Brown and
Townsend , Townsend opened the meeting by asking Wilson if I. B. E. W. would
abide by Wilson 's alleged agreement with Ogden regarding the exclusion of
Braswell from bargaining negotiations with the respondent, and that Wilson
replied the Union was willing to do so." The parties then proceeded to complete
the negotiations and an agreement was reached and reduced to final form on
this day. It was signed by Vice-President Brown on behalf of the respondent
and by President Thacker on behalf of Local B-915. The agreement was for
a term of 1 year beginning July 1, 1945, with the proviso that it be automatically
extended thereafter from year to year until terminated by the service of a 30-day
notice given prior to any anniversary date. It also contained a maintenance of
membership clause, an outline of the machinery for settling grievances, and a
provision to arbitrate disputes that might arise in connection with the con-
struction of or performance of the agreement.
On or about July 24, 1945, or about 1 month after the contract was signed,
Braswell, according to his credible and uncontroverted testimony, called upon
C B. Hanna, the manager of respondent's Central Divisiop, together with the
members of Local B-915's grievance committee to discuss a procedure for
handling pending grievances. Hanna refused to meet with Braswell but sent
out word that he would meet with the other members of the committee present'8
Braswell, further credibly testified that he then went to Townsend's office to
request Townsend to make arrangements with the respondent for setting up
a joint grievance committee to be composed of representatives of the respondent
headed up by Townsend and representatives of Local B-915 to be headed up
by Braswell. because the grievance committee of the local was composed of
inexperienced negotiators who had been unable to satisfactorily settle several
employee grievances , and that Townsend told Braswell that in view of the per-
sonal antipathy which seemingly existed between Braswell and some of the
officers of the respondent , Townsend was unwilling to submit Braswell ' s proposal
to the respondent's
3. The certification of I. B. E. W. as the statutory representative of the respondent's
employees in the Western Division
About 5 months prior to the expiration of the first yearly term of Local B-915's
contract in the Central Division, I. B. E. W. was also certified by the Board as
the statutory representative for the employees in the respondent's Western
Division.
"As noted above Wilson was unavailable as a witness. In view of the fact that this
matter was asserted to be of major importance to the respondent , who was represented at
all times by able and resourceful counsel, and who previously had been informed that only
an International Vice-President of I. B E W. could make such a commitment, it seems
unreasonable to the undersigned that respondent ' s counsel , Townsend , would be satisfied
with a mere oral commitment from a minor official of I B. E W to exclude Braswell from
bargaining negotiations in the face of the plain statement made by Wilson in his March 6,
1945, letter that only an International Vice-President of I. B E W could make such an
agreement.
11 It is noted that Braswell was the only international representative of I. B. E W. who
resided in the State of Kentucky, hence was the most readily available official representa-
tive to assist and advise Local B-915, a newly established local with inexperienced officers.
19 On July 28, 1945, ]Braswell , as International Representative of I. B. E. W., signed a
charge alleging a refusal to bargain by the respondent and filed it with the Board's Regional
Director for the Ninth Region. Since this time the respondent has continued to refuse to
deal with Braswell as an agent for either I. B E. W. or Local B-915.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On October 12, 1945, the Board ordered that an election be held among the
respondent's employees in its Western Division 20 The Board found that the
appropriate unit consisted of the following :
.. . All production employees of Kentucky Utilities Company in its Western
Division, including turbine room operators, boiler operators, service fore-
men at Barlow, Fulton, Earlington, and Greensville, but excluding chief
operators at ice plants, district engineers, assistant division engineers,
district, division, and local managers, power plant superintendents, assist-
ant power plant superintendents, meter superintendents, gas plant super-
intendents, crew foremen, commercial managers, superintendents of con-
struction, substation superintendents, commercial service engineers, clerical
employees, office employees, service advisors, janitors and janitresses, tem-
porary employees and seasonal employees, and any supervisory employees
with authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees or effectively recommend such action.
Thereafter I. B. E. W., the only labor organization appearing on the ballot,
won the election conducted by the Board21 On February 4, 1946, the Board
certified I. B. E. W. as the exclusive representative of all the respondent's
employees within the above-described unit for the purposes of collective bar-
gaining with respect to rates of pay, hours of employment, and other conditions
of employment.
4. I. B. E. W.'s attempt and the respondent's refusal to negotiate a contract in the
Western Division
Following the refusal of the respondent to deal with Braswell concerning
I. B. E. W. matters, International Vice-President Freeman assigned International
Representative T. P. Loftis, who resided in Nashville, Tennessee, to assist Local
B-9155 of Danville, Kentucky, in the Central Division, and Local B-816, of
Paducah, Kentucky, in the Western Division concerning all matters of joint con-
cern to the respondent and I. B. E. W.
On February 28, 1946, Loftis, according to his credible and uncontroverted testi-
mony, called upon the respondent's Vice-President E. W. Brown at the latter's
office in Lexington, Kentucky : he told Brown that there were a number of employee
grievances pending in the Western Division that should be settled ; he then re-
quested Brown to recognize I. B E. W. as the statutory representative of
the employees in the Western Division and said that Brown told him the re-
spondent had not yet decided whether or not it desired to further contest the
validity of the Board's certification of I. B. E. W. as majority representative in
the Western Division ; and that Brown then requested him to submit a request
for recognition in writing. On March 4, 1946, Loftis by letter addressed to Brown
formally requested recognition of I. B. E. W. as majority representative of the
employees in the Western Division, requested the respondent to recognize and
bargain with Local B-816, as I. B. E. W. 's agent in the Western Division and to
negotiate grievances with H. V. Allen, the business manager of the said local, and
two employees of the respondent who with Allen would constitute a grievance
committee. Receiving no reply to the letter, Loftis again wrote to Brown on
'March 18, calling attention to the requests previously made in his March 4 letter
and requesting an acknowledgement and reply. Both letters were disregarded
20 Matter of Kentucky Utilities Company, et al., 64 N. L. R. B 120
11 The election was held on December 4 and 5, 1945
THE KENTUCKY UTILITIES COMPANY ' 863
except for a letter of acknowledgement dated March 21, 1946, signed by Brown's
secretary , stating that the March 18 letter from Loftis would be called to Brown's
attention upon his return to Lexington in the next few days. Thereafter Brown
made no reply . On May 16, 1946 , Loftis mailed another letter addressed ton. M.
Watt, the respondent 's president . This letter stated that I. B. E. W . has been duly
certified by the National Labor Relations Board as exclusive bargaining agent for
the respondent 's employees in the Western Division ; that it currently has a con-
tract covering the employees in the Central Division ; that I. B. E. W. now re-
quests the respondent to meet with a joint negotiating committee composed of
delegates from Local Union B-915 of the Central Division and Local B-816 of
the Western Division for the purpose of negotiating a joint contract covering
the employees in both divisions, and to advise Loftis by May 25, 1946, regarding
the above proposal. By letter dated May 23, 1946, Townsend, the respondent's
counsel, informed Loftis that a charge concerning alleged violations of the Act by
respondent in the Western Division , had been filed with the Regional Director in
the Board 's Eleventh Region, I. B. E. W. ( Case No. 11-C-1268, one of the cases
herein), and that an earlier reply to Loftis had been delayed because the re-
spondent had been waiting to discuss the charges with a Board 's Field Examiner
assigned to investigate the charges and also because Watt had been absent from
his office in Lexington.
On May 29, 1946 , Loftis drafted a letter signed by employee Thacker, president
of Local B-915, and mailed on the same day, stating that Local B-915 was termi-
nating the contract covering the employees in the Central Division, as of June
30, 1946. On this same day Braswell , in his capacity as international representa-
tive of I. B. E. W., signed strike notices in compliance with the War Labor Dis-
putes Act and mailed copies to the Secretary of Labor for the United States, the
National War Labor Board, the National Labor Relations Board and the re-
spondent stating that "a strike will become effective at 12: 01 A. M. on July 1,
1946" in the respondent 's Central and Western Divisions.
On June 5, 1Q46, Watt by letter to Loftis stated that Townsend had advised
the respondent not to enter into a contract with Local B-816 for the Western
Division employees , because the membership of that local was not composed
solely of employees of the respondent.
Commissioners of Conciliation of the United States Department of Labor
offered their services in an effort to avert the threatened strike. They arranged
for two meetings to be held with representatives of the I. B. E . W. and of the
respondent, one on June 17, 1946, and the other July 5, 1946 ' All of these meet-
ings were ineffective insofar as bringing the parties together in an agreement to
settle their differences.
The first meeting , arranged by Commissioner of Conciliation McNamara of
the United States Department of Labor, was scheduled for June 17, 1946, between
Townsend, representing the company, and Loftis, representing I. B. E. W., at
Townsend's office in Lexington, Kentucky. When McNamara and Loftis arrived
there, they were informed by Townsend's law partner, John Davis, that Townsend
was confined to his home on that day because of a digestive upset but had left
word with Davis that Townsend would be able to meet with them at his home.
According to the credible and uncontroverted testimony of Davis, Loftis was un-
willing to go to Townsend 's home and requested Davis to arrange for a meeting
on that same day with Watt or Hanna ; Davis told Loftis that Watt and Hanna
21 Another conciliation meeting was held on or about June 29, 1946, under the auspices
of an agent acting for the Commissioner of Labor for the State of Kentucky at Frankfort,
Kentucky
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were both out of the city He then called Townsend on the telephone and follow-
ing a conversation with Townsend reported back to Loftis that the respondent had
Lot receded from its former position, namely, that it would not deal with Local
B-816, because it admitted employees of competitors to membership and for that
reason the respondent would not enter into a joint contract covering both divisions
but that he, Davis, would arrange for a meeting to renegotiate a new contract for
the Central Division if such was agreeable to Loftis ; and that Loftis after
expressing disagreement with this suggestion then left the office with McNamara.
The position taken by the respondent at the other two conciliation meetings
which were held on June 29 and July 5, 1946, is reflected in the following letter
dated July 6,1946, signed by R. W. Watt, the respondent's president, and addressed
to D. D. Thacker, president of Local B-915:
You have requested that I write you confirming my expressed position, on
the existing controversy, at the meeting at the LaFayette Hotel yesterday
afternoon, so that you may convey it accurately to the members of your
organization . This I am glad to do, and would like to state that my position
as expressed yesterday was the same as expressed by me at the meeting in
Frankfort, Friday a week ago, and which position is the result of much
deliberation and thought in an effort to arrive at the best answer for all
concerned.
1. I can not agree to attempt negotiations leading to a joint agreement
between the Central and Western Divisions and the company. Some of my
reasons for this position are
a. The employees of the Western Division are associated with chapters
made up largely of non-employee members who naturally do not have an inter-
est in our company and have no interest common to our employees [Italics
supplied. ]
b. The management of the two divisions are separate and distinct having
no jurisdiction one over the other
c. There is no physical connection between the two divisions and therefore
no inter-division operating relationship
2. I am not agreeable to opening negotiations or any kind with employees
of these Divisions as long as there remains a threat on the part of these
employees to strike if their demands are not complied with. [Italics sup-
plied.] Some of my reasons for this position are
a. It would be unfair to all parties concerned to arrive at a workable
agreement when a handicap of threat and intimidation is prevalent.
b. I am not disposed to interfere with the judgment of our employees on
the question of striking, therefore I can not determine my position as to enter-
ing into any agreement until that question is disposed of. [Italics supplied.]
c. The employees of the Central and Western Divisions have not expressed
a desire for separate negotiations. The Central Division employees notified
me by letter that it was the wish of their Union to cancel the contract then
in existence. No request as yet has been made by that Union for negotia-
tions leading to a new contract. The employees of the Western Division have
not, to my knoiwledge, created any organization made up solely or Western
Division employees. [Italics supplied ]
It is my thought that if the employees of the Central Division desire to
negotiate a new contract for themselves embracing wages and working con-
ditions then the proper procedure, as it is customary, would be to submit a
proposal to company officials for consideration, containing simply stated
THE KENTUCKY UTILITIES COMPANY 865
potnts, desired by the employees [Italics supplied.] I shall see to it that
such proposal is given prompt and careful attention. If in the end all efforts
to consider a satisfactory and workable agreement should prove fruitless
then and not until then should any thought be given to forcing the issue by a
work stoppage or strike.
5. Executive Policy Letter No. 3
On July 1, 1946, or within a few days thereafter, the respondent issued its
Executive Policy Letter No. 3. This so-called letter outlined in detail all policies
and working conditions affecting its employees throughout its system. The record
does not disclose the means taken to distribute this letter to the employees, but
a letter in ei idence dated July 8, 1946, signed by C. B. Hanna, the manager of the
Central Division, reads as follows :
Policy Letter No. 3 containing the new schedule of wages and rates made
effective to employees of the Kentucky Utilities Company July 1, 1946, which
was proffered to the employees of this division, become effective July 1, and
will be applicable on the July 15th payroll. It will, therefore, be well that
you secure a copy of this policy letter so that you may become familiar with
its contents.
For your further information the employees of all other divisions have
expressed their acceptance and favorable approval of this new schedule.
In view of statements made in Hanna's above letter, copies of the policy letter
were apparently made available to the employees at the usual places where em-
ployees customarily receive communications from the respondent. It also appears
from this letter, that such copies had been made available to employees in the
Western and other Divisions on some date prior to July 8.
Policy Letter No. 3, in summary, provides substantial hourly wage increases
of about 20 percent over the rates effective prior to July 1, 1946, which are set
forth in the I. B. B. W. contract covering the employees in the Central Division,
and which contract the Union terminated on June 30, 1946; gives the employees
one extra holiday with pay each year, namely, V-J day; vests absolute discretion
in the respondent in respect to lay-offs or discharges of employees; and further
provides that any grievances or disputes concerning an employee, which are not
settled by agreement between the employee and a representative of management
at one of the local divisions, shall be mediated with the respondent's "president."
6 The July 8, 1946 strike
As appears above, Watt, in stating the respondent's position, at the last
conciliation meeting held on July 5, 1946, in an effort to avert a strike, plainly
indicated that the respondent refused to negotiate a joint contract with I. B E. W.
covering the Central and Western Divisions ; " that it would not negotiate a
contract with I. B. E. W. or its Local B-816 for employees in the Western Divi-
sion because Local B-816 was not composed solely of employees of the respond-
ent ; and that it would not negotiate a new contract with Local B-915 for
employees in the Central Division until all threats to strike made by I B. E. W.
were withdrawn and a bargaining committee composed solely of employees was
appointed to represent them. On July 8, 1946, I. B. E. W. called a strike in both
23 By this finding the undersigned is not implying that the respondent was undei any
duty to negotiate a joint contract
866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
divisions. The strike was unsuccessful24 Some of the employees who went
out on strike returned to work in about 1 week and substantially all of the
others returned by July 22. There is no evidence in the record tending to show
what efforts were made in the Western Division to settle or call off the strike.
The record shows, however, that Watt was invited to attend a meeting of Local
B-915 during the strike by Vice-President Hamon of the local after Watt had
previously indicated to Hamon that he would be willing to meet with the mem-
bers of that local if no international representative of I. B. E. W. were present
On or about July 15, 1946, President Watt, accompanied by Hanna, the manager
of the Central Division, met with about 40 or 50 members of Local B-915 at
a meeting held by the local in Danville, Kentucky. Lienville, Turpin, the secre-
tary of Local B-915, and Hanna all testified in substance that after a general
conversation pertaining to the strike, Watt stated that the respondent would
not negotiate another contract with Local B-915 for the employees in the Central
Division until the local submitted proof to the respondent that it presently rep-
resented a majority of the employees in the division and also called off the
current strike. Shortly after this meeting the strike was abandoned in the
Central Division and the strikers still out on strike returned to work. A few
weeks after the strike was terminated, Local B-915 circulated a petition among
the employees hi the Central Division. This petition stated that the signers
thereon desired to be represented by Local B-915 for collective bargaining pur-
poses. Sixty-four of one hundred and twenty-one employees in the unit as
presently constituted purportedly signed it, but no proof was offered to show
that the signatures thereon are the bona-fide signatures of the persons signing
it and it was not submitted to the respondent prior to the hearing. The Board
makes no contention that it constitutes present proof of majority representa-
tion by Local B-915 in the said unit.
7 The respondent's refusal to bargain with Local B-915 and B-816 following
the strike
On August 25, 1046, Local B-915, by letter, requested the respondent to meet
with Braswell and officers of Local B-915 for the purpose of negotiating another
contract covering the employees in the Central Division. On August 28, the
respondent by letter refused to resume bargaining negotiations with Local
B-915 unless and until the latter presented proof that it still continued to be
the majority representative of the employees in the Central Division Bargain-
ing negotiations have not been resumed since this time.
On August 27, 1946, H. V. Allen, the business manager of Local B-816, who
was not an employee of the company, by letter requested the respondent to nego-
tiate a contract covering the employees in the Western Division with Local B-816.
This letter reads as follows :
In conformity with the certification in the Western Division by the Na-
tional Labor Relations Board, we are requesting that representatives of
your company meet with delegates of the employees in the Western 'Divi-
sion and officers of Local Union B-816, and International Officers of Brother-
hood of Electrical Workers, [Italics supplied] for the purpose of negotiating
24 According to the credible and uncontroverted testimony of L. B. Hite, the manager of
the western Division, only 49 of 194 employees in the bargaining unit of that division
went out on strike
25 This finding is based upon the credible testimony of employee Louis Lienville, a member
of Local B-915, who was called as a witness by the respondent.
THE KENTUCKY UTILITIES COMPANY 867
the contract covering, and including wages, hours of work, and other condi-
tions of employment for the employees of the Western Division.
On September 3, 1946, respondent replied as follows :
Your letter of the 27th does not list the names of any of owur employees
members of Local B-816 who would constitute a committee in the event of
the negotiations referred to in your letter. [Italics supplied.]
I believe it would be desirable for you to indicate just what procedure
you have in mind in connection with your proposed negotiations
By fair implication, the respondent is again asserting that it would only enter
into contract negotiations with a committee consisting of its own employees and
not with a committee selected by Local B-816 to conduct negotiations for the
employees in the bargaining unit.
8. The circulations of the so-called pro-Watt and anti-Braswell petitions
a. The pro-Watt petition
A few weeks prior to the hearing herein, a petition was circulated among
the employees in the Western Division reading as follows :
DEAR MR. WATT: The following signed employees of the Western Division
are well satisfied with our present working conditions. We have the ut-
most confidence in your leadership, knowing that you have our interest at
heart at all times. We respectfully request that you represent us at any
and all conferences where our welfare is concerned.
The record fails to show who prepared the above petition or the means taken
to circulate it among the employees. However, L. B. Hite, the respondent's
manager in its Central Division, gave the following testimony : the above
petition was purportedly signed by 144 of the 194 employees constituting the
bargaining unit in the Western Division ; that Watt sent it to him by mail ;
that he was without knowledge regarding who prepared or circulated it; and
that he was not familiar enough with the purported signatures appended to
it to state whether or not a substantial number of the said signatures thereon
were, in fact, the bona fide signatures of the persons who allegedly signed
it. The undersigned reserved ruling at the hearing regarding its admission
in evidence and now rules it may be received.
b. The anti-Braswell petition
At or about the same time that the above-mentioned petition was circulated
in the Western Division, other petitions were also being circulated in each of
the two divisions involved in the instant case. They read as follows :
Because of Mr. Braswell's dismissal from the Kentucky Utilities Company
we feel that he has a personal grievance against the company and we
employees of the Central [Western] Division do not desire that Mr. Braswell
represent the Central [Western] Division employees in any negotiations
with the Kentucky Utilities Company, including grievances that may arise
from time to time.
Gordon Turpin, the secretary of Local B-915, testified credibly and without
contradiction that Assistant Division Manager Thurman of the respondent's
Central Division, came to his home after work a few days prior to the hearing
and requested Turpin to sign the above petition, and that Turpin refused to
781902-48-vol 76-56
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
do so. Manager Hanna, of the same division, testified that the signed petition
was sent to his office by mail; that it bore the names of 71 out of 121 employees
in the bargaining unit; that he did not know how and by whom it had been
prepared or circulated, and that he was unable to testify whether or not the
signatures thereon were the bona fide signatures of the persons whose names
appeared thereon. It was offered in evidence by the respondent over objections
of counsel for the Board, and the undersigned reserved ruling on it at the
hearing. He now rules that it may be received in evidence.
Employee Ezra Scott testified without contradiction that, about 1 week prior
to this hearing, Dempsey, one of his supervisors,26 left instructions for him to
leave his work at Graham, Kentucky, and to meet Dempsey at Nortonville,
Kentucky, that when he arrived there Dempsey handed him a copy of the said
petition and requested Scott to circulate it among the operators working at
Graham' Hite, the Western Division manager, testified that one of his em-
ployees obtained permission from Hite to have the caption appearing on the
petition typed out on two additional blank sheets of paper by one of the typists
in Hite's office. Hite further testified that the completed petition contained the
names of 147 out of 194 employees in the bargaining unit for his division, and
that he had not checked the signatures appearing thereon to ascertain whether
or not they were bona fide signatures of employees who purportedly signed the
petition. Following the offer of the said petition in evidence by the respondent,
the undersigned reserved his ruling. He now rules that it may be received"
C. Conclusions
1. The Board's certifications
The foregoing facts show that the Board on May 19, 1943, certified I. B. E W.
as the statutory representative of the respondent's employees in its Central
Division in the appropriate unit described above in Section III, B, 1 of this re-
port, that thereafter on September 19, 1944, the Board issued its decision, fol-
lowing a hearing on a complaint alleging a refusal to bargain with Local B-915
of I. B. E. W., finding that the respondent unlawfully refused to bargain col-
lectively with Local B-915 for the employees in the aforesaid unit. Subsequently
on February 4, 1946, I. B. E. W was also certified as the exclusive representative
of the respondent's employees in its Western Division in the appropriate unit
described above in Section III, B, 3 of this report. The respondent offered
no additional evidence at the instant hearing tending to show the inappropriate-
ness of the units or in respect to the majority representation of Local B-915
or I. B. E. W. not heretofore presented to the Board prior to the respective
certifications. The undersigned therefore finds that the aforesaid units con-
stitute appropriate bargaining units for the respondent's employees in its Central
and Western Divisions, respectively, pursuant to Section 9 (b) of the Act. He
further finds that at all times since September 19, 1945, Local B-915 has been
the exclusive representative of all of the respondent's employees in the aforesaid
unit at its Central Division, and that at all times since February 4, 1946, I. B.
28 Western Division Manager Hite identified Dempsey as being the supervisor in charge
of all power plants in the Wl"estei n Division.
27 According to Scott, Dempsey also told him at this time that because Braswell had been
a former employee of the respondent and entertained harsh feelings against the respondent,
the respondent objected to engaging in collective bargaining negotiations with Braswell
28 A copy of this document without signatures thereon had been previously admitted
without objection on motion of the Board 's counsel.
THE KENTUCKY UTILITIES COMPANY 869
E W. has been the exclusive representative of all of the respondent's employees
within the above-described unit in the respondent ' s Western Division, pursuant
to Section 9 (a) of the Act.
2. The issues
The principal issues raised by the pleadings and the foregoing facts, in effect
are: (a ) whether the respondent 's refusal to recognize and deal with Interna-
tional Representative Braswell as an agent of Local B-915 in the Central Divi-
sion constituted a refusal to bargain with Local B-915; (b) whether the refusal
to bargain with Local B-816 as a designated agent of I. B. E W. in the Western
Division constituted a refusal to bargain with I. B. E. W.; and (c) whether
the issuance of Policy Letter No. 3 by the respondent and the solicitation of
employees by management representatives to sign the so-called anti -Braswell
petitions constitute interference with the self -organizational rights of employees.
a. The refusal to bargain with Braswell
In respect to this issue the respondent admits that it refused to bargain with
Braswell from on and after July 24, 1945, and contends : ( 1) that because of
the hostility openly expressed by Braswell toward the respondent and its of8-
cials, he was disqualified to act as a bargaining agent; and (2) that because
Local B-915 orally agreed to exclude 'Braswell from all future negotiations with
the respondent just before the July 1, 1945, contract was signed in the Central
Division, the refusal to recognize and deal with Braswell did not constitute a
refusal to bargain with Local B-915
The foregoing facts show that at some of the organizational meetings con-
ducted in the Central Division for I B E W. by Braswell prior to 1944, Bras-
well made certain statements to employees present at such meetings. He told
them that he had a grudge to settle with the respondent, that some of the
respondent's officials were liars, that the respondent did not give a dam for the
welfare of its employees and that lie hoped the respondent might go broke, finan-
cially, thus forcing it to sell out to the Tennessee Valley Authority 25 Although
it may be true that Braswell had slight grounds to support some of the above
and similar statements made by him at union organizational meetings, they
are the type of exaggerated claims and pretentions sometimes indulged in by
union organizers during organizational campaigns Such statements are gen-
erally recognized by ordinarily intelligent employees as propaganda. As noted
above, at least one of the respondent's employ ees present at a meeting when such
statements were made criticized Braswell for making them, whereupon the
latter modified his later remarks The Board is not empowered or charged with
a duty to police or enjoin agents of a labor organization in connection with their
29 As an additional reason , the respondent also urged , but less emphatically, that because
the Board had discredited certain testimony given by Braswell and contradicted by Watt
(the respondent ' s president ) at a Boaid ' s healing held about 8 years ago involving
I B E W and the respondent (28 N L R B 540), the respondent should not presently
be compelled to deal with Braswell as a designated agent of I B E W In this same deci-
sion , the Boaid also found that the respondent had discriminatorily discharged Braswell
and ordered the respondent to reinstate him with back pay As previously noted , Braswell
refused reinstatement but, instead, accepted a position with I. 13 E W Brown, the re-
spondent's vice president, in stating the reasons why the respondent objected to dealing
with Braswell made no mention of the Board's finding respecting Braswell in the decision
above referred to Obviously in view of the Board's findings in that case, the respondent,
as well as BiasweIl, was guilty of repieliensible conduct Consequently, it would seem to
be a situation where the pot is calling the kettle black
870 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organizational activities. This does not mean, however, that the undersigned
or the Board favors or condones loose statements made by union organizers ao-
A consideration of this entire record convinces the undersigned that the re-
spondent's objection to negotiating with Braswell was primarily motivated by a
purpose to impede and slow up the collective bargaining processes rather than
because of a sincere conviction that Braswell was an unfit person to bargain for
respondent's employees. The record shows that Braswell was the only inter-
national representative of I. B. E. W. who resided in the State of Kentucky,
and that consequently he would be the agent of I. B. E. W. most available and
likely to be assigned by it to advise the respondent's employees and the inex-
perienced officers of a newly established local regarding the settlement of any
grievances or other disputes which might arise during the course of their em-
ployment. Consequently, he finds this defense to be without substantial merit.
In respect to the respondent's contention that Local B-915 had agreed to ex-
clude Braswell from bargaining negotiations, the record shows and the under-
signed finds that the respondent was at all times represented by able and
resourceful counsel who were present at all negotiating conferences, leading to
the consummation of the July 1, 1945, contract. It is true that at the first meeting
held to negotiate this contract Braswell was excluded from participating in
negotiations by Vice-President Freeman of I. B. E. W. following objections made
to his presence there by Townsend, counsel for the respondent, and that he did
not appear to participate in any subsequent negotiation meetings up to the date
of signing it. Although the respondent asserts that the exclusion of Braswell
from all bargaining negotiations was a matter of major concern to it, the
respondent did not press for a settlement of the question as a disputed issue
before the War Labor Board, but withdrew the question from consideration by
that forum. Thereafter, it failed to insist that such a provision be included in
the July 1, 1945, contract entered into with I. B. E. W., nor did it insist at the
time the agreement was signed that a supplemental written memorandum con-
cerning Braswell's exclusion from all future negotiations be signed by I. B. E. W.
as proposed by Attorney Ogden, the lawyer who represented respondent before
the War Labor Board Panel, notwithstanding the fact that the respondent was
informed by statements made by International Representative Wilson in his
March 6, 1945, letter to Ogden, which letter was thereafter forwarded to Town-
send, that only an international vice president of I. B. E. W. could make binding
commitments regarding the designation of agents selected to represent I. B. E. W.
in its dealings with employers. By urging this defense, the respondent is now
seeking to vary the terms of a written instrument. In view of the foregoing, the
undersigned concludes and finds that neither Local B-915 or I. B. E. W. entered
into a binding agreement with the respondent to exclude Braswell from acting
as its agent in future bargaining negotiations with the respondent. An employer
has no right to dictate, or disapprove, the selection of an agent designated by a
statutory representative to conduct bargaining negotiations with an employer "
Accordingly, the undersigned concludes and finds that by refusing to recognize
and deal with Ira Braswell, on or about July 24, 1945, and at all times material
thereafter, the respondent has failed and refused to bargain collectively with
Local B-915 as the duly designated representative of its employees in the
afore-mentioned appropriate unit, thereby interfering with, restraining, and
ao Cf. Matter of Corn Products Refining Company, 58 N. L. R. B. 1441.
81 See Pueblo Gas and Fuel Company v. N. L. R. B., 118 F. (2d) 304, 308 (C. C. A. 10)
Kansas Utilities Company, 35 N. L. R. B. 936; American Foundry, et al., 43 N. L. R. D.
1277.
THE KENTUCKY UTILITIES COMPANY 871
-coercing its employees in the exercise of their rights guaranteed in Section 7
of the Act.
An additional defense is urged by the respondent, namely, that by reason of
the long period of time that has elapsed since May 19, 1943, the date of the original
certification of I. B. E. W. as the statutory representative of the employees in the
Central Division, it should not be presently ordered to bargain with Local B-915
until another election is held to determine the present desires of the employees
regarding a bargaining representative. This contention is clearly without merit,
for as found above, the refusal to recognize and deal with Braswell as an agent of
Local B-915 relates back to July 24, 1945, when no question could have been
raised regarding Local B-915's status as exclusive representative. It is a con-
tinuing violation of the respondent's duty to bargain with Local B-915 that may
only be remedied by the resumption of bargaining relations between the respond-
ent and such duly designated agents of Local B-915 as may be delegated to conduct
bargaining negotiations 82 The so-called anti-Braswell petition, sponsored as it
was by the respondent, is clearly no defense for the respondent's refusal to bargain
with Braswell as an agent of Local B-915 33
b. The refusal to bargain in the Western Division
With respect to this issue, the respondent contends in effect: (1) that Local
B-816 of Paducah, Kentucky, could not properly represent respondent's em-
ployees as an agent of I. B E. W. in the Western Division because the said
Local was not composed solely of the respondent's employees but also admitted
to membership employees of competing concerns; and (2) that the respondent
has not failed or refused to bargain with I. B E W.
The foregoing findings of fact clearly show that on February 28, 1946, Inter-
national Representative Loftis requested the respondent to recognize and bargain
with I. B. E. W. as the statutory representative of its employees in its Western
Division, and that the respondent, on that occasion, asserted that it bad not
decided whether or not it would recognize the Board's previous certification. Sub-
sequently, on March 4 and 18, 1946, Loftis requested the respondent by letter to
recognize and bargain with Local B-816 (I B. E W. of Paducah, Kentucky.)
Both letters were ignored and the respondent has offered no satisfactory reasons
for its failure to make reply. Such disregard of requests to bargain constitutes a
refusal by an employer to bargain in good faith. Thereafter when I. B. E. W.,
on May 16, 1946, by letter to the respondent, requested the respondent to meet
with a joint committee composed of delegates from Local B-915 and Local B-816
to negotiate a joint contract covering the employees in both divisions, and re-
questing a reply by May 25, the respondent failed to make a definite reply to this
request until June 5, 1946, when Watt by letter stated :
I understand from the opinion which has been rendered to us by our coun-
sel that it is not legally advisable for the company to confer with a local
union or its representatives, which union is not composed entirely of the em-
ployees of Kentucky Utilities Company. It is my further understanding that
the Union at Paducah is composed of many members who have no connection
with our company, therefore no employer and employee relationship exists
between us and them. This being so it' is necessary for the company to
decline to confer with a joint committee such as you suggest.
si See Franks Brothers Co. v. N L. R. B, 321 U S. 702
a3 Cf. N. L. R. B. v. Appalachian Power Company, 140 F. (2d) 217 (C. C. A. 4).
872 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clearly, the respondent thus asserted, in effect, that it is only obligated to
bargain with representatives of a local union composed of its own employees
The respondent evidently objected to the possible designation to a bargaining
committee of non-employee members of the local. This position was thereafter
asserted by the respondent at all conciliation meetings held in an attempt to
avert the strike which began on July 8, 1946 At all times since, respondent
has refused to recede from this position and has continued to refuse to bargain
with Local B-816 concerning a contract covering the employees in the Westeia
Division.
The selection of employees or other members designated by a statutory rep-
resentative to serve on bargaining committees is a matter that does not concern an
employer. He has no right to dictate who shall serve on such committees or to
refuse to bargain with the members of such committees duly designated by a
statutory representative.' The past background of unfair labor practices com-
mitted by this respondent, its policy of stalling, and evading meetings with prop-
erly designated agents of the statutory collective bargaining representatives of
its employees over a period of many years, as shown by this record, leads the
undersigned to conclude that the respondent at all tunes, and by various captious
pretexts, sought to evade collective bargaining within the meaning of the Act a
On the basis of the foregoing findings of fact and the entire record, the under-
signed concludes and finds that the respondent on February 28, 1946, and at
substantially all times material thereafter," has refused to bargain collectively
with I . B. E. W. as the exclusive representative of its employees in an appro-
priate unit in its Western Division, thereby interfering with, restraining, and
coercing its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
c. Respondent's Policy Letter No 3: the anti-Braswell petitions
The Board claims that by granting unilateral wage increases to its employees
in Policy Letter No. 3 dated July 1, 1946, the respondent interfered with the
self-organizational rights of employees The respondent contends that because
Local B-915 terminated the contract in the Central Division on June 30, 1946, the
respondent was privileged to unilaterally effect changes in the working conditions
of employees. There is no merit in the respondent's contention for, as found
above, the respondent had at all times refused to bargain in good faith with
I. B. E W since February 28, 1946, in the Western Division. Consequently
34 See Pueblo Gas & Fuel Co. v N. L R. B , 118 F. (2d) 304, 307 (C. C. A. 10) , Kansas
Utilities Company, 35 N L R. B 936; American Foundry, et al , 43 N. L . R B 1277
as The undersigned has not overlooked the fact that the respondent signed a contract
with Local B-915 in the Central Division dated July 1, 1945, but in connection therewith
he deems it significant that before the respondent negotiated the contract, it had been
ordered to do so by the Board, following a hearing in a complaint case (58 N. L It. B 335).
He deems it further significant that within 1 month after this contiact was signed it refused
to iecognize and bargain with International Representative Braswell regarding the settle-
ment of pending grievances , the latter circumstance constituting one of the reasons for the
issuance of the present complaint
3c The undeisigned by this finding does not imply that the respondent was wrongfully
refusing to bargain with I. B It . W or its duly designated agents from May 16 to July 5,
1946, the period during which I. B E. W. was endeavoring to negotiate a joint contract
coveiing the employees in both the Central and Western Divisions . In view of the fact
that the Board had issued separate certifications for units in each of the divisions, the
Union was not privileged to insist that the separate units be merged into a single unit,
despite the fact that the respondent had previously refused to bargain collectively with
the designated agents of I. B. B. W. regarding the employees in each of the said units.
THE KENTUCKY UTILITIES COMPANY 873
the respondent was not free to unilaterally grant substantial wage increases to
the Western Division employees without negotiating such changes with their
statutory collective bargaining representative
The activities of Assistant Division Manager Thurman in the Central Division
and of Dempsey, the supervisor of power plants in the Western Division, in
connection with the circulation of the so-called anti-Braswell petition among
the respondent's employees for the obvious purpose and with the intent of
prejudicing employees against a union representative, also constituted inter-
ference with the self-organizational rights of employees.
The undersigned finds that by granting unilateral wage increases to the
Western Division employees on July 1, 1946, and by thereafter soliciting its
employees to sign the so-called anti-Braswell petitions, the respondent has
interfered with, restrained, 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 TIPON 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, traffic, and commerce
among the several States, and tend to lead and have led to labor disputes burden
ing and obstructing commerce and the free flow thereof
V THE REMEDY
Having found that the respondent has engaged in certain unfair labor practices
affecting commerce, it will be recommended that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act
The respondent's illegal conduct discloses a purpose to defeat self-organiza-
tion among its employees. For example, following the certification of I B. E. W.
in its Central Division it refused to recognize and bargain with one Ira Bras-
well, the only international representative of the organization residing in the
State of Kentucky, Thereafter, following the certification of I. B E. W. as the
statutory representative of the respondent's employees in its Western Division
it refused to bargain with Local B-816 of Paducah, Kentucky, a local established
by I. B. E. W. in the territory embracing the Western Division, for the claimed and
invalid reason that the membership in said local was not confined solely to em-
ployees of the respondent. During that period when it was refusing to bargain
with Braswell in its Central Division and with Local B-816, in its Western Divi-
sion, it unilaterally granted to all of its employees substantial wage increases.
Unquestionably, the granting of such wage increases under the above circum-
stances would tend to discourage employees from maintaining their membership
in I. B. E. W. In addition, major supervisors on the respondent's staff circulated
petitions among the employees in the said Central and Western Divisions which
petitions stated that the signers thereof objected to Braswell's participation in any
bargaining conference as a representative of the employees. Since the respond-
ent's conduct in these respects interfered with, restrained, and coerced its em-
ployees in the exercise of their rights to self-organization, to form, join, or assist
labor organizations, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purposes of collective bar-
gaining or other mutual aid or protection, this conduct violated Section 8 (1) of
the Act quite apart from the respondent's refusal to bargain with I. B. E. W.
3r See Consolidated Aircraft Corn. v N. L. R B.- 141 F. (2d) 785
874 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Having also found that the respondent has refused to bargain collectively with
Local B-915 and I. B. E. W. as the certified exclusive representatives of all em-
ployees constituting appropriate bargaining units in the respondent's Central and
Western Divisions, respectively, the undersigned will recommend that the re-
spondent, upon request, bargain collectively with Local B-915 and I. B. E. W, as
the exclusive representative of the employees in the said Central and Western
Divisions of the respondent.
Upon the basis of the foregoing findings and upon the entire record in the case,
the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers and Local Union B-915,
International Brotherhood of Electrical Workers, affiliated with the American
Federation of Labor, are labor organizations, within the meaning of Section 2 (5)
of the Act.
2. All production, maintenance and construction employees of Kentucky Utili-
ties Company in its Central Division, including the chief operator at Dix Dam,
but excluding the division manager, the district managers, the local managers
who do not spend substantial time on service work, office employees, technical
engineers, the superintendent of construction, the salesmen, the janitor and
janitress, the foreman of the maintenance crew at Danville, the service-man
manager at Eminence, the service-man manager at Leitchfield, the ice-production
superintendent at Glasgow, the service-man at Upton, the superintendent and as-
sistant superintendent at Dix Dam, the foreman of the division line-crew at
Shelbyville, the military guards at Dix Dam, the gas-production foreman at
Danville, the ice- and water-plant manager at Stanford, the ice-production engi-
neer at Lebanon, the chief operator-ice and electricity at Franklin, the gas- and
water-production superintendent at Shelbyville, and the serviceman managers at
Hodgenville and Wilmore, constitute a unit appropriate for the purposes of col-
lective bargaining, within the meaning of Section 9 (b) of the Act.
3 International Brotherhood of Electrical Workers, Local B-915, A. F. of L.,
was on September 19, 1944, and at all times thereafter has been, the exclusive
representative of all the employees in the immediately above-described unit for
the purposes of collective bargaining within the meaning of Section 9 (a) of
the Act `
4. By refusing on July 24, 1945, and at all times thereafter to bargain col-
lectively with Local B-915, International Brotherhood of Electrical Workers,
A. F. of L., as the exclusive representative of all of its employees in the afore-
said appropriate unit in respondent's Central Division, the respondent has
engaged in and is engaging in unfair labor practices within the meaning of
Section 3 (5) of the Act.
5. All production, maintenance and distribution employees of Kentucky Utilities
Company in its Western Division, including Turbine room. operators, boiler oper-
ators, service-foremen at Barlow, Fulton, Earlington, and Greenville, but exclud-
ing chief operators at ice plants, district engineers, assistant division engineers,
district, division, and local managers, power plant superintendents, assistant
power plant superintendents, meter superintendents, gas plant superintendents,
crew foremen, commercial managers, superintendents of construction, substation
superintendents, commercial service engineers, clerical employees, office employees,
service-advisors, janitors and janitresses, temporary employees and seasonal
employees, and any supervisory employees with authority to hire, promote, dis-
THE KENTUCKY UTILITIES COMPANY 875
charge, discipline, or otherwise effect changes in the status of employees, or
effectively recommend such action, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 (b) of the Act.
6. International Brotherhood of Electrical Workers, A. F. of L., was on Febru-
ary 4, 1946, and all times thereafter has been, the exclusive representative of all
the employees in the immediately above-described unit for the purposes of col-
lective bargaining within the meaning of Section 9 (a) of the Act
7. By refusing on February 28, 1946, and at all times thereafter, to bargain
collectively with International Brotherhood of Electrical Workers, A. F. of L.,
as the exclusive representative of all its employees in the aforesaid appropriate
unit in respondent's Western Division, the respondent has engaged in and
is engaging in unfair labor practices within the meaning of Section 8 (5) of
the Act.
8. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices, within the meaning of Section 8 (1)
of the Act.
9. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed hereby recommends that the respondent, The Kentucky Utilities Company,
Lexington, Kentucky, and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with International Brotherhood of Elec-
trical Workers, Local B-915, A. F. of L, as the exclusive representative of all
its employees in the above-described unit in its Central Division ;
(b) Refusing to bargain collectively with International Brotherhood of Elec-
trical Workers, A. F. L., as the exclusive representative of all its employees
in the above-described unit in its Western Division ;
(c) In any other manner interfering with, restraining, or coercing its employees
in the exercise of their rights to self-organization, to form, join, or assist Inter-
national Brotherhood of Electrical Workers, A. F. of L., or any other labor organ-
ization, to bargain collectively through representatives of their own choosing, and
to engage in concerted activities for the purposes of collective bargaining and
other mutual aid and protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will effec-
tuate the policies of the Act :
(a) Upon request bargain collectively with Local Union B-915, International
Brotherhood of Electrical Workers, A F. of L, as the exclusive representative
of all its employees in the above-described unit in its Central Division, and if
an understanding is reached, embody such understanding in- a signed agreement ;
(b) Upon request bargain collectively with International Brotherhood of Elec-
trical Workers, A. F. of L., as the exclusive representative of all its employees in
the above-described unit in its Western Division, and if an understanding is
reached, embody such understanding in a signed agreement ;
(c) Post immediately in conspicuous places at each of its properties within its
Central and Western Divisions copies of the notice attached hereto marked "Ap-
pendix A." Copies of said notice, to be furnished by the Regional Director for
876 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Eleventh Region, shall, after being duly signed by the respondent's representa-
tive, be posted by the respondent immediately upon receipt thereof, and main-
tained by it for a period of sixty (60) consecutive days thereafter in conspicuous
places, including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the respondent to insure that the said notices
are not altered, defaced, or covered by any other material ;
(d) File with the Regional Director for the Eleventh Region on or before ten
(10) clays from the receipt of this Intermediate Report a report in writing setting
forth in detail the manner and form in which the respondent has complied with
the foregoing recommendations.
It is further recommended that unless on or before ten ('10) days from the
receipt of this Intermediate Report the respondent notifies the said Regional
Director in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 203 39 of the Rules and Regulations of the National Labor
Relations Board, Series 4, effective September 11, 1946, any party or counsel for
the Board may, within fifteen (15) days from the date of service of the order
transferring the case to the Board, pursuant to Section 203 38 of said Rules and
Regulations, file with the Board, Rochambeau Building, Washington 25, D. C.,
an original and four copies of a statement in writing, setting forth such excep-
tions to the Intermediate Report or to any other part of the record or proceeding
(including rulings upon all motions or objections) as he relies upon, together with
the original and four copies of a brief in support thereof ; and any party or coun-
sel for the Board may, within the same period, file an original and four copies
of a brief in support of the Intermediate Report. Immediately upon the filing of
such statement of exceptions and/or briefs, the party or counsel for the Board
filing the same shall serve a copy thereof upon each of the other parties and
shall file a copy with the Regional Director. Proof of service on the other parties
of all papers filed with the Board shall be promptly made as required by Section
203.65. As further provided in said Section 203.39, should any party desire per-
mission to argue orally before the Board, request therefor must be made in writ-
ing to the Board within ten (10) days from the date of service of the order trans-
ferring the case to the Board.
Dated March 27, 1947. HENRY J. KENT,
Trial Examiner.
APPENDIX A
NOTICE TOE ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations 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 B-915,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. OF L., as the
exclusive representative of the employees in the unit described immediately
below :
All production, maintenance, and construction employees of the Central
Division of the Company, including the chief operator at Dix Dam but
THE KENTUCKY UTILITIES COMPANY 877
excluding the division manager, the district managers, the local managers
who do not spend substantial time on service work, office employees, tech-
nical engineers, the superintendent of construction, the salesmen, the jani-
tors and janitresses, the foreman of the maintenance crew at Danville, the
division crew foreman at Danville, the service-man manager at Eminence,
the service-man manager at Leitchfield, the ice-production superintendent
at Glasgow, the service-man at Upton, the superintendent and assistant
superintendent at Dix Dam, the foreman of the division line-crew at Shelby-
ville, the military guards at Dix Dam, the gas-production foreman at Dan-
ville, the ice- and water-plant manager at Stanford, the ice-production en-
gineer at Lebanon, the chief operator-ice and electricity at Franklin, the
gas- and water-production superintendent at Shelbyville, and the service-
man managers at Hodgenville and Wilmore.
WE WILL NOT refuse to bargain collectively with the INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, A. F. OF L., as the exclusive repre-
sentative of the employees in the unit described immediately below:
All production, maintenance, and distribution employees of the Company
in its Western Division, including turbine room operators, boiler operators,
service foremen at Barlow, Fulton, Earlington, and Greenville, but exclud-
ing chief operators at ice plants, district engineers, assistant division engi-
neers, district, division, and local managers, power plant superintendents,
assistant power plant superintendents, meter superintendents, gas plant
superintendents, crew foremen, commercial managers, superintendents of
construction, substation superintendents, commercial service engineers,
clerical employees, office employees, service advisors, janitors and janitresses,
temporary employees and seasonal employees, and any supervisory em-
ployees with authority to hire, promote, discharge, discipline, or otherwise
effect changes in the status of employees, or effectively recommend such
action.
WE WILL NOT unilaterally make any changes with respect to rates of pay,
wages, hours of work, and/or all other terms or conditions of employment in
our Central and Western Divisions.
WE WILL BARGAIN collectively upon request with LOCAL UNION B-9155,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. OF L., as the
exclusive representative of our employees in the bargaining unit described
above in our Central Division, and if an understanding is reached, embody
such understanding in a signed agreement.
WE WILL BARGAIN collectively upon request with INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS, A. F. or L., as the exclusive representative of
our employees in the bargaining unit described above in our Western Divi-
sion, and if an understanding is reached, we will embody such understanding
in a signed agreement.
WE WILL NOT in any manner interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-organization, to form labor
organizations, to join or assist INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, affiliated with the AMERICAN FEDERATION OF LABOR, or any other
labor organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection.
878 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
All our employees are free to become or remain members of the above-
named union or any of its locals.
KENTUCKY UTILITIES COMPANY,
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.