The Nebraska Power Co.

National Labor Relations Board - Board Decisions

Jan 11, 1940

19 N.L.R.B. 357 (N.L.R.B. 1940)

In the Matter of THE NEBRASKA POWER COMPANY, OMAHA, NEBRASKA
and INTERNATIONAL BROTHERHOOD of ELECTRICAL WORKERS, LOCAL
No. 763, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR
Case No. C-1075.-Decided January 11, 1940
Electric Utility Industry-Iiiterference, Restraint, and Coercion.: remarks by
assistant plant superintendent to individual employees in derogation of union;
effect of remarks not overcome by respondent 's subsequent statement to union
representatives that employees were free to join union and warning to foremen
against repetition of such incidents in absence of direct communication to em-
ployees ; remedy , cease and desist and posting of notices containing statement
that employees are free to join any labor organization , including union-Com-
pany-Dominated Union: charges of , dismissed-Disciimination-: charges of,
dismissed.
Mr. Arthur R. Donovan, for the Board.
Kennedy, Rolland, DeLacy and Svoboda, by Messrs. Yale C. Hol-
land, Ralph E. Svoboda, and L. T. Tierney, Omaha, Neb., for the
respondent.
Mr. Ray McGrath, of Omaha, Neb., for the Independent.
Mr. James F. Sullivan and Mr. Robert K. Garrity, of Omaha, Neb.,
and Mr. James Preston, of Washington, D. C., for the I. B. E. W.
Mr. Walter T. Nolte, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
. Upon charges and amended charges duly filed by John W. Griffith
and Walter D. Dermyer, individuals, on their own behalf and by Inter-
national Brotherhood of Electrical Workers, Local No. 763, herein
called the I. B. E. W., the National Labor Relations Board, herein
called the Board, by the Regional Director for the Seventeenth Region
(Kansas City, Missouri ), issued its complaint dated May 19, 1938,
against the Nebraska Power Company, Omaha, Nebraska, herein
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning of Section 8 (1), (2), and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the
19 N. L . R. B., No. 41.
283030-41-vol. 19--24
357
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Act. Copies of the complaint and an accompanying notice of hearing
were duly served upon the respondent and the I. B. E. W. on May 19
and 20, 1938, respectively.
The complaint, with respect to the unfair labor practices, alleged
in substance that since May 1937 the respondent had dominated and
interfered with the formation and administration of . and given
financial and other support to the Independent Employees Association
of the Nebraska Power Company, herein called the Independent; that
on dates specifically alleged the respondent had discharged 3 named
employees and had transferred 7 other named employees to less desir-
able positions because such employees had joined or assisted the I. B.
E. W. and in order to discourage membership in the I. B. E. W.; that
the respondent had, since April 1937, through foremen and other em-
ployees acting in its behalf,, made and caused to be made. statements
derogatory to and discouranging membership in the I. B. E. W.,
questioned members about their affiliation with the I. B. E. W., col-
lected or caused to be collected information concerning the I. B. E. W.
and its members, and accused employees of being disloyal because of
their membership in the I. B. E. W.; and that by each of the afore-
mentioned acts and by other acts the respondent had interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On May 24, 1938, the respondent filed a motion for a more specific
statement in which more particularity was requested with respect to
all allegations of the complaint relating to unfair labor practices,
with the exception of those allegations relating to the discharge or
demotion of the 10 named employees.
In an answer filed on June 1, 1938, the respondent admitted certain
facts with respect to the nature and extent of its business but denied
that by reason of such business operations if was either engaged in or
materially affected interstate commerce. In its answer the respondent
further denied that it had engaged in the unfair labor practices as
alleged. Thereafter, the respondent filed a protest, dated June 13,
1938, against proceeding to a hearing without an affirmative ruling
on its motion for a more specific statement.
Pursuant to an order of postponement issued by the Regional
Director, copies of which were duly served upon the respondent and
the I. B. E. W., a hearing was held at Omaha, Nebraska, from June,
16 to July 1, 1938, before Joseph L. Maguire, the Trial Examiner duly
designated by the Board. The Board, the respondent, the I. B. E. W.,
and the Independent were represented by counsel and participated in
the hearing. Full opportunity to be heard, to examine and cross-ex-
amine witnesses, and to introduce evidence bearing upon the issues
was afforded all parties. .
THE • NEBRASKA. POWER CONIPANT 359
. At the commencement of the hearing the Trial Examiner denied
the respondent's motion for a more specific statement and granted a
motion for leave to intervene filed by the Independent. At the hear-
ing, the Trial Examiner ruled that the names of 8 of the 10 individuals
alleged to have been discriminated against, within the meaning of
Section 8 (3) of the Act, be withdrawn from the complaint on motion
of counsel for the Board and with the, consent of the individual em-
ployees involved and of the I. B. E. W. During the course of the hear-
ing the Trial Examiner made numerous other rulings on motions and
on objections to the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On or about July 7, 1938, the Independent filed a written argument
with the Trial Examiner, and on or about August 9, 1938, a supple-
mental written argument that the Board had failed to establish thel
allegations of the complaint to the effect that the Independent had
been dominated and interfered with by the respondent. On Novem-
ber 12, 1938, the respondent filed with the Board a brief and a supple-
mental brief in which it urged that the evidence in the record failed
to substantiate the material allegations of the complaint.
On November 29, 1938, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the parties. The Trial.
Examiner found that the respondent had engaged in -unfair labor
practices affecting commerce, within the meaning of Section 8 (1) and
(2) and Section 2 (6) and (7) of the Act. He also found that the two
remaining allegations of discrimination, within the meaning of Sec-
tion 8 (3) of the Act, involving employees John W. Griffith and
Walter D. Dermyer, were not substantiated by the evidence. He rec-
ommended that the respondent cease and desist from its unfair labor
practices and withdraw recognition from and disestablish the Inde-
pendent as a collective bargaining agency. He also recommended that
the allegations of the complaint with respect to discrimination by the
respondent against employees John W. Griffith and Walter D.
Dermyer be dismissed.
On January 3, 1939, the respondent and the Independent 'filed ex-
ceptions to the Intermediate Report and rulings of the Trial Examiner.
On or about January 3, 1939, the respondent and the Independent re-
quested art opportunity to file briefs and present oral argument before
the Board in support of their exceptions. Both thereafter filed
briefs. Pursuant to notice duly served upon all parties, a hearing
was held before the Board in Washington, D. C., on June 16, 1939,
for the purpose of oral argument. The respondent, the Independent,
and the I. B. E. W. were represented and participated in the argument.
The Board has considered the exceptions of the respondent and the
Independent and the briefs and arguments in support thereof and,
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
except in so far as they are inconsistent with the findings, conclusions,
and order set forth below, finds them meritorious.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Nebraska Power Company, a corporation organized pursuant to the
laws of the State of Maine and duly licensed to do business in the
States of Nebraska and-Iowa, maintains its,.principal,office in,the city
of Omaha, Nebraska. It engages as a public utility corporation in the
generation of electric energy in the State of Nebraska and in the dis-
tribution of such electric energy in the States of Nebraska and Iowa.
All of the respondent's outstanding common stock is owned by the
American Power and Light Company, a utility holding company,
within the meaning of the Federal Public Utility Holding Company
Act of 1935, 49 Stat. 803. Its preferred stock is held by the public.
The respondent is the sole public utility operating in an area en-
compassing 53 communities, including the city of Omaha, and covering
2,000 square miles inhabited by 290,000 people within the State of
Nebraska and encompassing 15 communities, including the city of
Council Bluffs, and covering an area of 500 square miles inhabited
by 61,000 people within the State of Iowa. To serve its customers in
the State of Iowa the respondent owns and operates an electric dis-
tribution line commencing at its generating plant in the State of Ne-
braska and crossing the Missouri River into Iowa and there connecting
with facilities owned and operated by the respondent for serving
communities and individual customers within the State of Iowa. In
addition to the electric energy which the respondent distributes to
its own customers within the States of Nebraska and Iowa, it delivers
energy at points within the State of Nebraska and within the State of
Iowa to the Iowa-Nebraska Light and Power Company, such energy
being subsequently sold and.delivered by the Iowa-Nebraska Light
and Power Company to its customers in the States 'of Iowa and Ne-
braska by means of facilities owned by it in and between the two
States. During the year 1937, the respondent's total output of electric
energy was 397,000,000 kilowatt hours of which 23,735,000 kilowatt
hours was delivered to the Iowa-Nebraska Light and Power Company.
Included among the respondent's customers are the following rail-
roads : the Union Pacific ; the Chicago, Burlington, and Quincy ; the'
Chicago, Rock Island and Pacific; the Illinois Central; the Chicago
and Northwestern; and the Chicago, St. Paul, Minneapolis, and
Omaha. In 1937 the energy supplied to these railroads. within Ne-
braska totaled 6,384,734 kilowatt hours, within Iowa 1,804,035 kilo-
THE NEBRASKA POWER COMPANY 361
watt hours. The Omaha and Council Bluffs Street Railway, operat-
ing in and between the cities of Omaha and Council Bluffs, is de-
pendent upon the respondent for its supply of electric energy. Also
numbered among the respondent's customers are numerous other, or-
ganizations engaged in interstate commerce including Western Union
Telegraph Company; Postal Telegraph and Cable Company; North-
western Bell Telephone Company; Omaha Municipal Airport, a
terminal for interstate airlines; Pacific Fruit and Express Company,
operator of refrigerated railway cars; the Omaha World Herald, a
daily newspaper with an interstate circulation ; the Omaha Grain Ex-
change, which renders grain exchange quotations available throughout
the country ; and several packing houses and grain elevators. The
respondent also supplies. electric energy to the Federal Government
for the operation of its post offices within the area served by the re-
spondent. Each of the customers named above uses the electric energy
supplied by the respondent for lighting and powering facilities oper=
ated in Nebraska and Iowa in connection with their interstate
activities.
As an adjunct to its business of distributing electric energy, the,
respondent engages in the sale of electric appliances at retail. Such
merchandise sales totaled $329,235 in 1937, $267,913 in Nebraska and
$61,322 in Iowa.
In 1937 the respondent purchased equipment and supplies, exclusive
of expenditures for additions to its generating equipment under
special construction contracts, valued at $1,545,000. Purchases made
outside of the State of Nebraska accounted for $680,000 of this amount.
Purchases made within the State of Nebraska totaled $447,000. The
remaining $418,000 was paid to dealers located within the State of
Nebraska for coal obtained by them for the respondent f. o. b. mines
located principally within the State of Kansas. Ninety per cent of all
supplies and equipment purchased by the respondent originate out-
side of the State of Nebraska, whether the purchase is made outside
of the State or through dealers located within the State. The re-
spondent was required to pay, in addition to the amount listed above
for purchase of supplies and equipment, $610,000 in freight charges
for the transportation of its coal supply. Such freight charges were
paid by the respondent directly to the following interstate railroads :
the Union Pacific; the Chicago, Burlington, and Quincy; the Chicago
and Great Western; the Wabash; and the Missouri Pacific, and accrued
by reason of the transportation of coal principally from Kansas.
Further evidence of the interstate nature of the respondent's opera-
tions is to be found in its handling of revenues. All such revenues,
from whatever source derived, are eventually accumulated in accounts
maintained by the respondent in Omaha, Nebraska.
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers, Local No. 763, is
a labor organization chartered by International Brotherhood of
Electrical Workers, affiliated with the American Federation of Labor,
admitting to its membership all employees of the respondent, excluding
administrative, clerical, and supervisory employees.
. Independent Employees Association of the Nebraska Power Com-
pany is an unaffiliated labor organization, admitting to its member-
ship all employees of the respondent, excluding officers and officials.
III.. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
On June 22, 1918, the I. B. E. W. was granted a charter conferring
upon it jurisdiction over linemen in the territory of the respondent.
In the period intervening between that date and the early months of
1937, the I. B. E. W. continuously maintained a membership among tho
respondent's employees.' Because of the limits of the I. B. E. W.'s
jurisdiction this membership was confined to employees of a single
department known as the distribution department. During the late
winter of 1937 the I. B. E. W. members decided that it would be to
their advantage to expand their membership into other departments
of the respondent's organization, and they accordingly sought from
their international organization an amendment to their charter; ex-
panding their jurisdiction. A grant of additional jurisdiction was
received ' in March of 1937 and the I. B. E. W. immediately began a
campaign of organization. Many non-member employees were so-
licited to attend an open meeting of the, I. B. E. W. at the Labor
Temple in Omaha on the night of Sunday, March 21, 1937. Several
new members were obtained at this meeting and as a result of con-
tinued campaigning through April and May the membership of the
I. B. E. W. was increased by approximately 100 members to a total
of approximately 170. Employees then eligible for membership in
the I. B. E. W. numbered 500 or 600.
Two men employed at the generating plant, Woods and Hurd, testi-
fied that within a week after they had attended the I. B. E. W. meet-
ing of March 21,1937, they were approached on the subject by Turner,
assistant superintendent of the generating plant. According to
Woods, Turner told him that it had been reported that he was talking
union. Turner then spoke disparagingly of the men who attended the
meeting at the Labor Temple and accused Woods of not having_ a
mind of his own. Woods quoted Turner as concluding the con-
versation by saying, "If you ain't satisfied, get out and get out
right now."
THE. NEBRASKA POWER C'O'MPANY 363
Hurd's account of his conversation with Turner is to the effect that
Turner asked him what he knew about the union, whether he had at-
tended the recent union meeting, and, upon receiving an affirmative
answer to the latter question, what reason he had for going up there.
Hurd said that Turner then accused him of being an "unloyal" em-
ployee and wanted to know what he "had up [his] craw." Turner
also remarked that he had heard that some of the boys were saying
that if they joined the union they would get $200 a month and con-
cluded by saying that if anyone thought he could get $200 a month
anywhere else he could have time off to do it.
Turner denied that the union had been mentioned in either of the,
conversations. He admitted, however, that he was excited during
these conversations, that during the conversation with Woods he was
in fact "hot under the collar," and that as a result he may have made
statements which he could not later recall. Turner and other wit-
nesses for the respondent testified that strike rumors had been cir-
culated in the plant for some time previous to the conversations, that
similar rumors had come to the attention of the management from out-
side sources, and that as a result Turner had been instructed to track
down the rumors inside the plant. According to Turner, both of thel
conversations were confined to the question of the strike rumors.
Turner testified that Woods flared up when asked what he knew about
the rumors that someone was going to pull the switches and that- in
the course of a heated exchange of words which followed Turner told
Woods that he did not know enough about the plant to pull the
switches and that he could be replaced by a farmer boy in 2 weeks.
With respect to his conversation with Hurd, Turner denied having
mentioned the union or having made any accusation of disloyalty but
admitted the substance of Hurd's testimony with respect to the $200
a month.
On April' 5, 1937, Mike Boyle, an international representative of
the I. B. E. W., came to Omaha at the request of the members of the
local and held a conference with Davidson, president of the respond-
ent. Boyle's visit was calculated to bolster the campaign of organi-
zation and to serve as an opening wedge in negotiations with the re-
spondent. During the course of his conference with Davidson, Boyle
presented several grievances arising out of recent discharges and
transfers of I. B. E. W. members, outlined the I. B. E. W.'s position
as contemplating an eventual closed shop, represented that there was
such unrest current among the respondent's employees as to give rise,
in his opinion, to the possibility of a strike, and stated that reports
from the I. B. E. W. membership indicated that statements derogatory
to the union and its members had very recently been made by a fore-
man in the respondent's employ. Boyle made one specific proposal,
namely that, in. order to overcome the effect of the derogatory remarks
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to which he had referred, the respondent should post notices through-
out its organization to the effect that it had no objection to its em-
ployees joining the I. B. E. W. Although the respondent refused to
accede to Boyle's proposal in so far as it involved the posting of
notices, he was told that the respondent had no objection to its em-
ployees joining the I. B. E. W. and was assured that, if any remarks
derogatory to the union or its members had been made, such remarks
did not reflect the policy of the respondent and that orders would
issue to supervisors and foremen to avoid such practices in the
future. Davidson stated to Boyle that the respondent had always
allowed its employees full freedom in joining labor organizations and
that they could be informed that like freedom would be accorded them
in the future. Boyle gave a full report of the conference to a sub-
sequent meeting of the members of the I. B. E. W., including the re-
spondent's statement that it had no objection to employees joining the
I. B. E. W. Shortly thereafter, Nelson, president of the Omaha Cen-
tral Labor Union, acting for Boyle, had a conference with Fay Smith,
vice president of the respondent, and renewed the request for the post-
ing of notices. He received a reply essentially the same as that given
to Boyle and he too reported to the members of the I. B. E. W.
In the meantime, the respondent cautioned its supervisors and fore-
men as it had promised Boyle it would do. Turner was told indi-
vidually that in the future he should studiously avoid making any re-
marks to employees concerning the I. B. E. W. and a similar admon-
ition was given to a group of supervisors and foremen called together
especially for that purpose. Turner testified that he was told that
Boyle had referred specifically to his conversation with Woods and
was warned against a repetition of that incident. With respect to
the meeting of supervisors and foremen, Turner testified as follows :
Mr. Ruf, Mr. Urquhart and myself were all called up to the
office to the directors' room where Mr. Smith had another meet-
ing. I took it that that meeting up there, from what was said,
was again for my benefit. There were about 15 men around the
table, I guess.
Turner's denial that the union was mentioned in his conversations
with Woods and Hurd and his assertion that both conversations were
limited to the subject of the strike rumors are unconvincing in view of
his admission that in excitement and in anger he may have made state-
ments which he could not later recall. Furthermore, it is highly im-
probable that strike rumors circulating during the course of a vigor-
ous campaign of organization by the I. B. E. W. would be so completely
dissociated from the I. B. E. W. and its activities as the testimony
of Turner would indicate. We accept, therefore, the testimony of
THE NEBRASKA POWER COMPANY 365
Woods and Hurd, indicating that Turner made statements to them
which were derogatory to the I. B. E. W. and its members.
We find that the respondent, through the remarks of Turner to the
employees Woods and Hurd in derogation of the I. B. E. W. and its
members, has interfered with, restrained, and coerced its 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 pur-
poses of collective bargaining and other mutual aid and protection,
within the meaning of Section 7 of the Act.
The respondent does not question its responsibility for Turner's
statements. It contends, however, that it has since overcome any in-
fluence that such statements might have had upon the employees by
admonishing Turner and other supervisors and foremen, against. any
recurrence of such incidents and by voicing to Boyle and Nelson its
policy of non-opposition to membership of employees in the I. B. E. W.,
a policy which it claims it has since practiced and reaffirmed on sev-
eral occasions, including the hearing in the instant proceeding. Never-
theless, we do not believe that the effect of the statements has been
sufficiently overcome. While we find no occasion for holding that
under the circumstances the respondent was under an obligation to
comply with the I. B. E. W.'s request that it post notices to the effect
that it had no objection to its employees joining .the I. B. E. W., we
are impressed by the fact that it never directly informed its employees
that Turner's statements were contrary to its policy. We are of .the
opinion that more remains to be done if the effect of the statements
is to be overcome.
B. The alleged domination of and interference with the formation
and administration of the Independent
The I. B. E. W.'s campaign of organization served to emphasize in
the minds of the respondent's employees the question of representation
and the problem of choosing a representative. Discussions on the
subject were widely held among them during March, April, and May
of 1937.
Early in May, two employees, Smith and Larsen, the former a chief
substation operator and the latter a clerical employee, met in the re-
spondent's general office building and fell into a conversation concern-
ing unions. Both men desired to prevent the I. B. E. W. from be-
coming the exclusive representative of the employees and held the
opinion that the formation of an independent organization with mem-
bership limited to employees of the respondent would be the most
effective means to that end. Accordingly, they decided to consult a
lawyer with respect to the formation of such an organization. For
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their counsel they chose Ray McGrath, a local attorney. known to them
by general reputation. He advised them that their plan was feasible
from a. legal standpoint but that no action should be taken until their
proposal had been considered by a representative group of employees.
It was agreed that Smith and Larsen should invite such a group to
meet in McGrath's office on May 11 at 4:30 p. in. In contacting em-
ployees for this meeting, Smith and Larsen made free use of company
telephones during working hours. This is, however, a fact without
particular significance, since the record establishes that the respondent
as a general practice allows its employees free use of telephones without
restriction or limitation.
A group of 26 employees assembled in McGrath's office between 4:30
and 5 p. in. on May 11? McGrath made a prefatory statement in
which he outlined the purposes of the meeting and the circumstances
under which it had been called. A general discussion followed, during
the course of which one of the men expressed himself as hesitant to
proceed in forming a union in the absence of knowledge of the re-
spondent's attitude. Thereupon, the group decided to call in a rep-
resentative of the respondent for a statement of its position. McGrath
telephoned Davidson and received an affirmative reply to his invita-
tion. Davidson appeared shortly, whereupon McGrath reviewed the
situation for him and cautioned him against any expression of ap-
proval. Davidson then made a brief statement in which he referred to
the pertinent provisions of the Act as he understood them and concluded
by indicating that the respondent could not and, in any event, would
not object. The statement was carefully worded and did not indicate,
a preference for the proposed organization over any other. Davidson
left the meeting immediately after the conclusion of his statement.
Thereafter, the group of employees decided to proceed with the forma-
tion of a labor organization and constituted themselves a committee
for that purpose. After completing certain preliminary steps, they
adjourned until May 14, to prepare for formal organization.
The employees who attended the meeting of May 14 were, with but
few exceptions, the same as those who had attended the meeting of
May 11. They approved and adopted a constitution and bylaws;
constituted themselves as the charter members of the Independent;
authorized its incorporation as a non-stock, non-profit corporation;
chose from among their number a board of directors of 11 members,
consisting of three representatives from the distribution department,
three from the office, and three from 'the plant department and one
each from the rural and Iowa divisions of the respondent's organ-
ization; and prepared to solicit members.
'Although several of the employees left their work early to attend the meeting, as was
customary , none of them informed their superiors of the purpose for which they were
leaving.
THE. _NEBRASKA POWER C02AIPANY 367
There is some indication in the record that certain of the individuals
who were active in the organization and administration of the Inde-
pendent held positions with the respondent above the rank of ordinary
employees; but in an absence of evidence as to the nature of their
duties we are unable to determine that they were supervisory em-
ployees. It appears that several employees within this category were
present at the organization of the Independent, served on the first
and second boards of directors, and solicited members and collected
clues for the Independent on the respondent's property during work-
ing hours. There is, however, no evidence that the membership solicit-
ing and dues collecting activities of any employees were observed by
their superiors, except that in two isolated instances the respondent
admitted that it had learned of activity on behalf of the Independent
during working hours. In each of these instances the employee{
involved was reprimanded for his activities.
The Independent more closely resembles a business corporation thani,
a• labor organization. The powers of management and policy deter-
mination are vested almost exclusively in the board of directors. The
only regular membership meeting provided for in the constitution
and bylaws is an annual meeting. This organizational structure has
had its effect upon the operations of the Independent. Membership
meetings have been rare and the board of directors has exercised
almost unlimited power in the conduct of the affairs of the organiza-
tion. The degree of control exercised by the board of directors is ex-
emplified in the procedure they adopted for the choice of their own
successors. The director or directors from each department or divi-
sion chose a nominating committee. The nominating committee then
chose two candidates for each directorship allotted to the department
or division. Ballots were prepared on the basis of such nominations
and elections were conducted without calling a meeting of the mem-
bers of the organization. The extent of their control is further ex-
emplified in the Independent's grievance procedure and collective
bargaining activities. Individual grievances are passed upon by the
board of directors and then referred to one member for informal
presentation to the respondent. Two proposals for collective bargain-
ing have been advanced, both of which emanated from the board of
directors without consideration by the membership. It is not surpris-
ing, therefore, that the record discloses that on a number of occasions
members voiced protests against being denied participation in the
affairs of the organization. .
The respondent has avoided entering into negotiations with the,
Independent concerning either of its collective bargaining proposals.
One, involving a request for.the adoption of a liberalized vacation
schedule, was apparently abandoned on May 19, 1938, when Davidson
wrote to the president of the Independent pointing out that business
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions prohibited compliance with the organization's request..
The second proposal contemplated exclusive recognition and negotia-
tion of a contract. In reply to this proposal Davidson stated that the '
opening of negotiations at the time was impracticable. He promised,
however, to reopen the matter at the earliest possible moment. The
officers of the Independent accepted this postponement and did not
later urge a reopening of the question. Testifying in this connection,
Smith, first president of the Independent, stated that the Independent
was not seriously interested in exclusive recognition or a contract with
the respondent, but merely wished to enter a claim in advance of any
other labor organization.
On the basis of the facts outlined above and on the entire record
we are of the opinion that the respondent did not dominate or inter-
fere with the formation or administration of the Independent. In
his appearance at the organization meeting and his statement to the
employees present on that occasion, Davidson did not violate the letter
of the Act. If he violated the.spirit of the Act, such violation is m l-
possible of ascertainment from this record. Although the record indi-
cates that certain of the employees who were active on behalf of the
Independent were above the rank of ordinary employees, it does not,
as we have said, contain sufficient evidence as to the nature of their
duties to permit of a determination that they were supervisory em-
ployees. While the facts with respect to the structure, administra-
tion, and bargaining activities of the Independent might suggest doubt
as to whether or not it is an entirely satisfactory representative from
the standpoint of the employees, they do not establish that the
respondent has dominated or interfered with its formation or
administration.
We find that the respondent has not dominated or interfered with
the formation or administration of the Independent and that it has
not contributed support to that organization, within the meaning
of Section 8 (2) of the Act. We will, accordingly, dismiss the
allegations of the complaint in this respect.
C. The alleged discriminatory discharges
John W. Griffith worked for the respondent as.a lineman for ap-
proximately 13 years prior to March 25, 1937. Griffith and most of his
fellow linemen had been members of the I. B. E. W. for several years.
By reason of the fact that Griffith is by nature a vociferous and an en-
thusiastic individual, his affiliation with and active support of the
union were undoubtedy widely known. The record does not establish,
however, that he was an outstanding protagonist of the union.
Furthermore, there is no indication that the respondent had ever
objected to Griffith's union membership or activity.
THE NEBRASKA POWER CIOMPAN'Y 369
The respondent conteiids'•-that.:.Griffith was discharged for violation
of rules relating to the use of rubber insulating devices by linemen.
In recent years the use of such equipment has become an accepted
practice in the utility industry and the respondent has engaged ac-
tively in safety campaigns which in part at least emphasized the use
of safety devices. The respondent's rules and regulations governing
employees, issued in printed booklet form, are detailed and specific
with respect to the use of rubber protective equipment and indicate
that discipline or discharge may result from failure to observe the
rules and regulations. There is, however, no indication from the
record that a discharge had ever resulted from the infringement of
these rules in any case prior to Griffith's discharge. Moreover, it ap-
pears affirmatively in the record that on occasions, during emergency
work or in the course of rush work during storms, the rules had been
winked at by foremen and even violated upon their instructions. Re-
laxing of the rules was an infrequent rather than a usual practice,
however.
The circumstances surrounding Griffith's discharge are as follows:
The morning of the day of the discharge was chilly and damp and
marked by intermittent flurries of snow and the crew to which he was
attached was assigned to work on lines leading to a hospital. In view
of this situation, the crew. foreman, on orders from the general fore-
man, warned the linemen as they left the truck to begin work to use
plenty of rubber protective equipment. In spite of this warning
Griffith used no insulation whatsoever on the first pole on which he
worked that day. This action on his part elicited a word of caution
from a fellow employee and a reprimand from the foreman. From
that time until approximately 4 o'clock in the afternoon Griffith used
the prescribed protective devices in his work. At that time, however,
he was observed by both, the general' foreman and the crew foreman
working on a pole with what they termed considerably less than the
required amount of protective equipment. Griffith did not himself
contend that on this occasion he was using all of the equipment re-
quired by the rules and regulations but he insisted that in his judgment
he was adequately protected. In any event, it appears that when a
fellow employee climbed the pole to assist Griffith he found the amount
of insulating rubber insufficient and, when more protective equipment
was sent up from the ground at his request, it was used by both men.
Griffith was not reprimanded on the spot for this failure but was
called before the general foreman and his crew foreman immediately
upon his return to the respondent's headquarters that evening, given
an opportunity to explain his conduct, and thereafter discharged,
effective at once.
Fellow employees and fellow union members testified that Griffith's
laxness with respect to insulating equipment had always been more
370 DECISIONS OF NATIONAL I:ABOR- REbATIONS BOARD
flagrant than that of other linemen. Their testimony shows that he
had often been reminded of the rules and regulations or reprimanded
for a failure to live up to them. In addition, fellow employees were
prompted in self-defense to caution him from time, to time.
We are of the opinion that the evidence supports the respondent's
contention that infringement of its safety rules and regulations was
the sole operative cause of Griffith's discharge. We find, therefore,
that the respondent has not discriminated against John W. Griffith
with respect to his hire and tenure of employment, thereby discourag-
ing membership in the I. B. E. W., and we will dismiss the allegations
of the complaint in this respect.
Walter D. Dermyer worked for the respondent as a wireman's helper
from July 7, 1930, to May 31, 1931, and as a wiremaai on maintenance
and construction - work in the substation department 'from June 25,
1935; to March 27; 1937. " He joined the I. B. E. W. on Sunday, March
21, 1937, and during the early part of that same week was notified. of
his discharge, effective Saturday, March 27.
Dermyer testified that in so far as he knew his membership in the
I. B. E. W. had not•come to the attention of the respondent prior to
the time when he was notified of his discharge. It is clear from the
record that Miller, the foreman who recommended Dermyer's dis-
charge, had no such knowledge. Shortly after he was notified of his
discharge, Dermyer met Miller in the course of his work and the two
discussed the matter of the discharge at Dermyer's request. On this
occasion Dermyer told Miller that he had joined the I. B. E. W. on
the previous Sunday and asked whether his membership had been
the cause of his discharge.. Miller replied that Dermyer's affiliation
with the I. B. E. W. had not entered into the matter and that he had
in fact not known of such.affiliation prior to Dermyer's own statement.
Dermyer also asked Miller why Keller, an employee who had been
hired 2 or 3 weeks after Dermyer in 1935, was being retained. Miller
replied that, in his opinion, Keller would be the best man to keep.
Miller testified that his judgment in this connection was based upon the
fact that Keller had had technical college training in electrical en-
gineering and upon his observations as to the relative abilities of the
two men.
The respondent also established that, at the time of Dermyer's dis-
charge, construction work, in which he had been chiefly engaged, was
at an end. Six employees were affected by this situation; three were
transferred to another department, two were transferred within the
substation department, and Dermyer alone was discharged. Follow-
ing this adjustment of personnel, however, there remained in the
department several members of the I. B. E. W.
On a number of occasions following his discharge, Dermyer ap-
plied to the respondent for further employment.. He was told on each
11
THE N EHR,ASKA POWER COMPANY 371
occasion that there was nothing available. In, the course of his testi-
mony Dermyer pointed to the fact that, although he was repeatedly
denied employment, two. new men, Griffen and Cowell, were put to
Work in the substation department within a few months after his dis-
charge as substation operators. The respondent admitted that Der-
myer could have filled the position filled by either one. of these men.
It established, however, that Griffen was a college graduate in electrical
engineering who was hired by the engineering department and then
placed on temporary assignments in various departments of the or-
ganization in order that he might have a broad experience. Cowell
was hired in May 1937 at $90.00 a month as a relief operator on a tem-
porary basis for the purpose of substituting for regular operators on
vacation. Dermyer was considered, according to the respondent, at
the time Cowell was hired but he was not offered the position because
of the low salary 2 and temporary nature of the work. Cowell was
still on the pay roll at the time of the hearing in this proceeding, more
than a year after his employment, and had received an increase in
salary of $10 a month. His* salary was, however,. still substantially
less than that paid to Dermyer and the respondent insisted that his
employment was still on a temporary basis. The circumstances sur-
rounding the employment of Griffen and Cowell, subsequent to the
discharge of Dermyer, afford no basis for a conclusion that the hiring
of either one or both of these men constituted a discrimination against
Dermyer influenced by his I. B. E. W. membership, even though it
appears that when Cowell was hired scant consideration was given
to Dermyer.
Upon all of the evidence, we are of the opinion that the allegations
of the complaint with respect to discrimination involved in the dis-
charge of Dermyer have not been sustained. We find, therefore, that
the respondent did not discriminate against Walter D. Dermyer in
regard to his hire and tenure of employment, thereby discouraging
membership in the I. B. E. W., and we will dismiss the allegations of
the complaint in this respect.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section III,
A, 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 to labor disputes burdening and obstructing commerce
and the free flow of commerce.
Derm3•er was receiving $140.00 a month when discharged
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the respondent, through the statements of its
assistant generating plant superintendent, Turner, in derogation of
the I. B. E. W. and its members, has interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act, we shall order the respondent to cease and desist from
such interference, restraint, and coercion.
Following our usual practice we shall also order the respondent to
post notices throughout its plant, stating that it will cease and desist
in the manner provided in the preceding paragraph. Since we have
found that the ameliorative measures taken by the respondent sub-
sequent to its discovery of the statements made by Turner, did not
adequately,overcome.the.effect.of those statements, we shall include in
our order requiring the posting of notices a requirement that such
notices contain a statement to the effect that, in so far as the respondent
is concerned, its employees are free to form, join, or assist any labor
organization, including the I. B. E. W., according to their own indi-
vidual preferences and to bargain collectively with the respondent
through representatives of their own choosing. Such a statement is
in accord with the avowed policy of the respondent. We are'of the
opinion that the purposes of the Act will best be effectuated if that
policy is communicated directly to the employees by means of an
official communication from the respondent.
Upon the basis of the foregoing findings of fact and upon the entire
record in the proceeding, the Board makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Local No. 763,
and Independent Employees Association of the Nebraska Power Com-
pany are labor organizations,, within the meaning of Section 2 (5)
of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the re-
spondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7)
of the Act.
4. The respondent has not dominated and interfered with the forma-
tion or administration of, or contributed financial or other support
to, Independent Employees Association of the Nebraska Power
Company, within the meaning of Section 8 (2) of the Act.
5. The respondent has not discriminated in regard to the hire or
tenure of employment or any term or condition of employment of Joloi
THE Iv RE-RAS'IZA POWER COMPANY 373
W. Griffith or Walter D. Dermyer in such manner as to encourage or
discourage membership in a labor organization, within the meaning of
Section 8 (3) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that Nebraska
Power Company, Omaha, Nebraska, and its officers, agents, successors,
and assigns, shall :
1. Cease and desist from in any manner interfering with, restraining;
or coercing its employees in the exercise of the right to self-organiza-
tion, to form, join, or. assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the; National
Labor Relations Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Immediately post notices to its employees in conspicuous places
throughout its offices , generating plants, substations , warehouses,
garages, or other buildings or places where employees work or- report
for work and maintain such notices fora period of at least sixty (60)
consecutive days from the date of posting , stating that it will cease;
.and desist as aforesaid and that, in so far as the respondent is con-
cerned , its employees are free to form, join, or assist any labor organi-
zation, including the I. B. E. W., according to their own individual
preferences and to bargain collectively with the respondent through
representatives of their own choosing;
(b) Notify the Regional Director for the Seventeenth Region
(Kansas City, Missouri ) in writing within ten (10) days from the
date of this Order what steps it has taken to comply therewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed in so far as it alleges that the respondent dominated or inter-
fered with the formation or administration of, or contributed financial
or other support to, Independent Employees Association of the Ne-
braska Power Company , within the meaning of Section 8 ( 2) of they
Act, and that the respondent discriminated in regard to the hire or
tenure of employment or any term or condition of employment of
John W. Griffith and Walter D. Dermyer in such manner as to en-
courage or discourage membership in a labor organization , within
the meaning of Section 8 (3) of the Act.
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