The Ohio Power Company

National Labor Relations Board - Board Decisions

Apr 3, 1939

12 N.L.R.B. 6 (N.L.R.B. 1939)

In the Matter of THE OHIO POWER COMPANY and UNITED ELECTRICAL,
RADIO & MACHINE WORKERS OF AMERICA, LOCAL No. 729
Case No. "24.-Decided April 3, 1939
Electrw Utility Industry-Interference , Restraint , and Coercion : anti-union
statements ; use of labor spy ; threats of blacklisting and discrimination because
of membership and activities in union-Company-Dominated Union: domination
of and interference with formation and administration ; support ; use of com-
pany cars , time, and other facilities ; furnishing of employee as organizer; con-
trast between hostility to union and open favoritism toward company -dominated
organization ; disestablished as agency for collective bargaining-Employee
Status: supervisory ; domination of duties in a particular group without right
to hire and discharge , as-Espionage : use of labor spy ; ordered, to cease and
desist such practices.
Mr. Harry L. Lodish and Mr.'Max W. Johnstone, for the Board.
Lynch, Day, Pontius d Lynch, by Mr. M. C. Pontius, of Canton.
Ohio, and Mr. J. G. Ketterer, of Canton, Ohio, for the respondent.
Mr. Stanley Denlinger, of Akron, Ohio, for the United.
Mr. Joseph A. Padway, of Milwaukee , Wis., and Mr. W. H. Wilson,
of Akron, Ohio, for the Brotherhood.
Mr. Paul J. Gnau, of Canton , Ohio, for Topco.
Mr. Richard Salant, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by United Electrical
Radio & Machine Workers of America, Local 729, herein called the
United, the National Labor Relations Board, by the Regional Direc-
tor for the Eighth Region (Cleveland, Ohio), issued its complaint
and notice of hearing dated November 29, 1937, against The Ohio
Power Company, Newark, Ohio, 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),and (2) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act.
In respect to the unfair labor practices the complaint alleged in
substance (1) that on and after January 1, 1937, the respondent inter-
12 N. L. R. B., No. 3.
6
OHIO POWER COMPANY
fered with, restrained, and coerced its employees in the exercise of the
rights guaranteed them by Section 7 of the Act by means of various
specified acts and conduct; and (2) that in June 1937, and thereafter,
the respondent fostered, dominated, and interfered with the formation
and administration of a labor organization known as Topco Employees
Association, Chapters I to IX, herein called Topco, and contributed
financial and other support to it. Copies of the complaint and notice
of hearing were duly served upon the respondent, the United, Topco,
and International Brotherhood of Electrical Workers.
On December 3, 1937, the respondent filed an answer to the com-
plaint denying that it had engaged in or was engaging in the alleged
unfair labor practices. Accompanying the answer was a motion tc
dismiss on jurisdictional and constitutional grounds.,,
On or about December 3, 1937, the respondent made application
to the Regional Director for an order continuing the hearing. This
motion was granted. On December 10, 1937, the hearing was again
postponed. On or about December 20, 1937, the respondent filed with
the Regional Director a motion for an order requiring the charge and
the complaint based thereon to be made more definite and certain.
On December 23, 1937, Local B-759 and Local B-981, International
Brotherhood of Electrical Workers, herein called the Brotherhood,
filed with the Regional Director a motion to intervene. On Decem-
ber 27, 1937, this motion was granted.
Pursuant to notice, a hearing was held in Canton, Ohio, from
December 28, 1937, to January 22, 1938, before Charles E. Persons,
the Trial Examiner duly designated by the Board. At the opening
of the hearing, the respondent renewed its motion to make the allega-
tions of the charge and of the complaint more definite and certain.
The Trial Examiner took the motion under advisement. The
respondent thereupon objected to proceeding further until the Trial
Examiner ruled upon the motion. At the same time, the respondent
renewed its motion to dismiss on the grounds set forth in its answer.
This motion was denied. After the noon recess at the hearing on
the first day, the Trial Examiner granted the motion to make more
definite and certain in so far as it related to matters in the com-
plaint, except as to setting forth "derogatory statements" alleged
to have been made by the respondent. The motion was denied in so
1 As stated below, the Trial Examiner subsequently denied this motion, and the Board
affirms his ruling. The respondent 's jurisdictional contention has now been settled
against it. Consolidated Edison Company of New York , Inc., et at. v . National Labor
Relations Board, 59 Sup. Ct. 206 (1938) ; Appalachian Electric Power Company v.
National Labor Relations Board, 93 F. (2d ) 985 (C. C. A. 4th 1938). Constitutional
objections similar to the respondent 's have been similarly rejected. National Labor
Relations Board v. Jones ci Laughlin Steel Corp, 301 U. S. 1; see also Matter of
National Electric Products Corporation and United Electrical and Radio Workers of
America, Local No. 609, 8 N. 4 $. B. 475, 504-505.
8 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
far as it related to matters in the charge. Thereupon, counsel for
the Board made the complaint more definite and certain in com-
pliance with the ruling. The respondent, however, objected to the
Trial Examiner's rulings concerning the "derogatory statements."
The respondent also objected to the fact that the hearing had pro-
ceeded for a half day without a ruling on the motion to make more
definite and certain. These objections were overruled. During the
hearing, the Trial Examiner granted a motion by Topco to intervene.
These rulings are hereby affirmed.
The Board, the respondent, the United, the Brotherhood, and
Topco were represented by counsel and participated in the hearing.2
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 close of the hearing, the Trial Examiner ruled that
the record be held open for the purpose of permitting the respondent
to take a deposition of Charles Bivenour, one of the respondent's
meter superintendents. The deposition was taken on February 5,
1938, in Coshocton, Ohio. The Board and the respondent were rep-
resented by counsel at the taking of the deposition.
During the course of the hearing, the Trial Examiner made vari-
ous rulings on motions, other than those specifically mentioned above,
and on objections to the admission of evidence. The Board has
reviewed the Trial Examiner's rulings and finds that no prejudicial
errors were committed.
On May 10, 1938, the Trial Examiner filed his Intermediate Report,
copies of which were duly served upon the parties, in which he
found that the respondent had engaged in and was engaging in the
unfair labor practices alleged in the complaint, and recommended
that the respondent cease and desist therefrom and, affirmatively, dis-
establish Topco as a bargaining representative of its employees. He
also overruled certain motions to dismiss the complaint made at the
close of the hearing, on which he had reserved decision. The Trial
Examiner, in his Intermediate Report, notified the parties that they
were entitled to request oral argument before the Board within 10
days of the receipt of the Report.
Thereafter, the respondent and Topco filed exceptions to the Inter-
mediate Report. On August 31, 1938, the Board notified the parties
that they were permitted to file briefs with the Board upon applica-
tion within 10 days. None of the parties requested oral argument
before the Board or filed briefs. The Board has reviewed all the
exceptions to the Intermediate Report, and except in so far as they
2 During the last week of the trial, counsel for the Brotherhood and counsel for
United were not present at the trial . During this period , the Brotherhood was repre.
sented by W. H. Wilson, International representative. The United was not represented.
OHIO POWER COMPANY 9
are consistent with the findings, conclusions, and order set forth below
finds them to be without merit.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent was organized and incorporated under the laws of
the State of Ohio in 1907 as The Canton Electrical Company. Its
name was changed to The Ohio Power Company by amendment to its
articles of incorporation in 1919. The respondent is a part of the
integrated system of the American Gas and Electric Corporation,
which by contract 3 with the respondent provides management, ad-
visory, engineering, and similar services to the respondent. The re-
spondent owns one-half of the capital stock of the Beech Bottom
Power Corporation, a corporation whose sole function is the opera-
tion of the Windsor generating plant at Power, West Virginia. The
respondent also owns one-half the capital stock of the Windsor Power
Coal Company, which supplies the Windsor generating plant with
its coal requirements .4
The respondent's principal place of business is at Newark, Ohio.
It is engaged in the generation, transmission, distribution, and sale of
electrical energy and electrical appliances. Its electrical energy is
generated at two plants, one in Power, West Virginia, and one at
Philo, Ohio.
The respondent's distribution departments are separated into nine
divisions, with headquarters at Canton, Lima, Tiffin, Newark, East
Liverpool, Steubenville, Bellaire, Portsmouth, and Coshocton, respec-
tively, all in Ohio.
The total sales of energy by the respondent for the year ending
December 1, 1936, amounted in value to $20,702,182. Approximately
2.7 per cent of the respondent's total sales of electrical energy and
materials during the same period represented sales of electrical ap-
pliances. The net amount of electrical energy generated at the Philo
plant in 1936 was 1,654,442,190 kilowatt hours. The total number of
the respondent's employees as of November 30, 1937, was 2,966.
Purchases and sales of electrical energy in interstate commerce
The complaint alleged that "the entire connected system of the
Respondent is a part of the interconnected system of the American
9 Until January 1, 1938, the contract was with the American Gas and Electric Company,
which is apparently the predecessor of American Gas and Electric Corporation.
1 All such coal is mined in west Virginia.
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Gas and Electric Company, furnishing electrical energy to communi-
ties and other users in the States of Kentucky, Virginia, West Vir-
ginia and Ohio ... A large proportion of the electrical energy gen-
erated, transmitted, and distributed by the Respondent is distributed
to users without the State of Ohio." The respondent admitted these
allegations in its answer. Approximately 26.76 per cent of the elec-
trical energy generated and purchased by the respondent is sold and
distributed to points outside the State of Ohio.
As stated above, one of the two main generating plants for the
respondent's system is located at Power, West Virginia. The net
amount of electrical energy generated at Power in 1936 and trans-
mitted into Ohio totaled 514,900,000 kilowatt hours.
The respondent has interchange contracts for the transmission of
electrical energy with Appalachian Electric Power Company, of
West Virginia, and Indiana-Michigan Electric Company, of Indiana.5
During 1936, pursuant to these interchange contracts, the respondent
delivered to Appalachian Electric Power Company 205,362,000 kilo-
watt hours, and received from that company 169,554,900 kilowatt
hours. In the same year, the respondent delivered to Indiana and
Michigan Electric Company 429,507,693 kilowatt hours, and received
from that company 1,901,000 kilowatt hours. In these interchanges,
each company owns the transmission lines to the State line and the
exchange is effected at the Ohio-Indiana line in the case of Indiana
and Michigan Electric Company, and at the Ohio-West Virginia line
in the case of Appalachian Electric Power Company.
Purchases of materials in irnterstate coimmerce
The respondent in the operations of its business purchases coal,
cables, copper, insulators, aluminum, poles, steel structures for trans-
mission lines and substation equipment, electrical appliances, and
other miscellaneous equipment. In 1936 the total value of such pur-
chases was $6,500,000. Forty per cent of these purchases were from
points outside the State of Ohio.
Types of consumers dependent ;on electrical energy supplied by the
respondent
The complaint alleged that the respondent, from its Philo plant,
furnishes electrical energy for approximately 466 cities and towns in
the State of Ohio and assists in supplying approximately 700 com-
munities in adjoining States. It further alleged that "a large part
5 The respondent also has an interchange contract with Wheeling Electric Company of
West Virginia. Electrical energy is supplied to this company by the respondent' s plant
at Power, West Virginia.
OHIO POWER COMPANY 11
of the electrical energy generated, transmitted, and distributed by the
Respondent in the State of Ohio is used by railroads, telephone com-
panies, and other instrumentalities of interstate commerce, by manu-
facturers of goods in interstate commerce 6 and by other groups and
individuals engaged in interstate commerce or using instrumental-
ities of interstate commerce." These allegations were admitted by
the respondent in its answer.7
Conclusions concerning thei respondent's relation to commerce
It is clear from the findings above (1) that the respondent main-
tains facilities in West Virginia as well as in Ohio for the generation
and distribution of electrical energy; (2) that large amounts of
electrical energy generated by the respondent are transmitted across
State lines; (3) that the respondent purchases large quantities of
electrical energy which are transmitted to it across State lines;
(4) that the respondent receives large quantities of coal and other
commodities in interstate commerce; and (5) that instrumentalities
of interstate commerce such as railroads, post offices , and telegraph
companies, as well as manufacturers who purchase and sell in inter-
state commerce, use electrical energy supplied by the respondent.
A cessation of the respondent's business, such as would tend to accom-
pany labor disputes between the respondent and its employees, (a)
would affect the flow of large quantities of electrical energy and
other commodities received or distributed by the respondent in inter-
state commerce; and (b) would tend to burden and obstruct not only
the operations of various instrumentalities of interstate transportation
and communication but also the operation of the businesses served by
the respondent with power, which receive and ship commodities in
interstate commerce."
IL THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America, Local
No. 729, is a labor organization affiliated with the Committee for
"For example , the evidence shows that respondent supplies electrical energy to Republic
Steel Corporation 's Canton plant. In a prior case the Board has found that in 1936
the latter plant shipped products to points outside Ohio aggregating in value $19,717,-
266.36. Matter of Republic Steel Corporation and Steel Workers Organizing Committee,
9 N. L. R. B. 219.
" In its stipulation concerning commerce , the respondent stated : "Respondent has no
means of knowing the extent of the dependence of all of its customers upon respondent's
service."
8Consolidated Edison Company of New York, Inc, et al. v. National Labor Relations
Board, 59 Sup. Ct. 206 (1938) ; Appalachian Electric Power Company v. National Labor
Relations Board, 93 F . ( 2d) 985 (C. C A. 4th, 1938 ) ; Matter of Pacific Gas and Electric
Company and United Electrical & Radio Workers of America, 3 N. L. R . B. 835 Matter
of Consumers' Power Company, a eorporataon and Local No. 71,0, United Eleotrical, Radio
d Machine Workers of America, 9 N. L. R . B. 701.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industrial Organization. Its headquarters are in Newcomerstown,
Ohio. Local No. 729 was chartered June 4, 1937.9 It admits to
membership employees of the respondent; at the time of the hearing
its. membership appeared to have been confined largely to employees
in the respondent's service division, the headquarters of which are
at Coshocton, Ohio.
International Brotherhood of Electrical Workers, Locals B-759
and B-981, are labor organizations affiliated with the American Fed-
eration of Labor. Local B-759, with headquarters at Upper Sandusky,
Ohio, admits to membership all employees of the respondent in the
northern division, except supervisors, bookkeepers, and stenographers.
Local B-981 has headquarters in Newark, Ohio. Its membership
covers the respondent's southern division, but the exact limits of its
jurisdiction do not appear in the record.
Topco Employees Association, Chapters I-IX, is an unaffiliated
labor organization, admitting to its membership all employees of the
respondent except supervisors. Topco is composed of nine chapters
corresponding to the nine distribution divisions of the respondent.
Each chapter has its own constitution and bylaws.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
Except for a short-lived union of firemen in 1920, there was no union
organizing among the respondent's employees until early in 1937. In
January 1937 some employees joined the United local at Dover, Ohio,
but it was not until March that the United began a concerted organiz-
ing campaign. Its activities were confined to the service division cen-
tering around Newcomerstown, Ohio, and it was successful in organ-
izing a substantial number of employees in the district 10
Many witnesses testified to the immediate opposition to the United
evinced by various supervisory officials of the respondent in the service
division. The activities and conduct of such officials are best consid-
ered individually :
J. J. Dolan is the general manager of the service division. He is the
chief official, and has charge of the employment, in this division. Coin-
cident with the United's organizing drive of which he was aware,
Dolan became actively interested in union affairs. Late in March, he
called a meeting in the afternoon of all employees working in the
Dennison, Ohio, area. At this meeting, J. W. Rennacker, the super-
intendent of the Dennison area, stated that he had learned that there
6 Prior to June 4, employees of the respondent were admitted to Local No. 708 of the
United, with headquarters at Dover, Ohio.
10 The activities of the Brotherhood did not begin until June or July 1937.
OHIO POWER COMPANY 13
was a C. I. O. organization in the district, and then asked the employees
whether they had any grievances. At a second meeting held in the
evening of the same day, Dolan repeated this inquiry. That he was
aware not only of the United's activities but also of the employees who
were participating therein is shown by his specific questioning of
Thomas Maitland, a United member, concerning any grievances Mait-
land might have. Dolan then turned the meeting over to one Fauver,
a C. I. O. organizer, who told the employees "to take things easy, not to
go ahead and jump into anything blindfolded."
At about the same time, Dolan invited George Kym, a lineman in
the division, to his home after learning that Kym was a representative
of the United. Dolan knew that Kym had had considerable experience
in unionism," and he pointed out to Kym that the employees were
"new and inexperienced." He asked Kym "not to run away and not
to get wild and cause any strikes." On March 27, at a meeting of all
the superintendents and department heads, Dolan discussed the activi-
ties of the United, and told them to be sure to keep in close contact
with the employees and find out what grievances they had.
Dolan, however, insisted that, although he spoke to many employees
individually, and to the department heads, he had always made it
clear that the employees could join any union they wished, and that
he had expressly warned the superintendents "to be very careful
about creating any trouble," and instructed them "that they could not
tell our employees not to become affiliated with any union." Dolan
attributed his activities to the fact that "I realized that these boys
never had experience with unionism, and my department heads never
had any experience in dealing with unions and I did not want those
boys to cause strikes and get in trouble, interrupt service, cast a black
eye on the service division."
Although Dolan freely testified at the hearing that he was not
wholly in sympathy with the labor movement because of its "great
dangers on account of lack of independent leadership" and because it
is "at the mercy of ignorances," the record is devoid of any evidence
that Dolan directly stated to any employees that they were not
free to join any union they wished. However, particularly in view of
Dolan's criticism of outside organizations at the hearing, we do not
believe that his conversations with and instructions to the superin-
tendents and other supervisors were so judiciously worded as his
statements on the witness stand. Although Dolan may not have
expressly instructed the superintendents and supervisors to engage in
n In 1936, E it. Strohm, distribution superintendent in the service division , visited
Kym at his home and expressed his concern about union activities in the neighboring
plant of the American Art Works . Strohm was fearful of the organization's spreading
to the respondent 's employees , and so requested Kym to report to him if any union
activities began in Coshocton.
14 DECISIONS Ot NATIONAL LABOR RELATIONS BOARD
anti-union conduct, we nevertheless believe that their activities, dis-
cussed below, sprang in part from Dolan's own attitude toward out-
side unions, which he revealed to them, and that it is in the Lght
of these facts that the conduct of the other officials in the service
division must be considered. In any event even if the conduct and
statements of these officials, set forth below, were not in any part
the result of Dolan's conversations with and instructions to them,
their conduct and statements are nevertheless attributable to the
respondent, which is responsible for,the activities of its officials and
supervisors.
E. R. Strohm is distribution superintendent in the service division.
He is in charge of the line crews and other work involved in the
maintenance of the respondent's lines. George Kym, a lineman, testi-
fied that shortly after he was elected to the United grievance com-
inittee, Strohm and Arnold Babcock, a foreman, visited Kym at his
home.' Strohm told Kym that "If you come into the office with the
committee, you will have no job or any other place in the Ohio Power
Company, or anywhere else you may go, and you will be listed as an
agitator."
Similarly, Peter Gross, an employee, testified that Strohm called
him into his office, in the presence of Babcock, and said, "If anything
happened, he would blackball me from the whole division," that
Gross was an "agitator" and should have seen his foreman before
joining the United. J. G. Poling, another employee, testified that
Babcock, his foreman, summoned him to his office, called him an
agitator, and said, "If I didn't stop union activities I would leave
the job with a bad name and be black-listed from the system." Each
of these incidents occurred shortly after, Kym, Gross, and Poling had
joined the United.
Neither Strohm nor Babcock were called by the respondent to deny
having made these statements, and no showing of their unavailability
was attempted. We find that these incidents occurred as testified to.
W. T. Robertson, a member of the floating crew, testified that on
or about April 2, 1937, Strohm called each member of the crew to
an automobile in which Dave Hine, the crew foreman was sitting.
Robertson was told by Strohm that he had been promoted to a field
clerk, at an hourly wage increase of 15 cents, and that he should
"drop your union activity, don't attend any meetings and don't pay
any dues, don't talk about it, just don't have anything to do about
it," and that "we wouldn't fire a man for belonging to a union; we
are too smart for that, but we could find a number of other reasons
12 On this occasion , Strohm reprimanded Rym for not having kept his promise, made
in 1936, to inform Strohm of the beginning of any union activities in the area. See
footnote 11 above.
OHIO POWER COMPANY 15
to let you go. We have never been dictated to by the employees ...
and we are not going to start now."
Hoy Cross, another member of this crew, had signed an affidavit
stating that, on the same occasion, Strohm made similar statements
to him. At the hearing, however, Cross insisted that he had not
meant to sign this part of the affidavit and that Strohm had only
asked him whether he was satisfied with his wage increase .13 Frank
Caddes, a third member of the crew, testified his conversation with
Strohm was limited to a discussion of the wage increase. Baker, the
fourth member, did not testify.
As pointed out above, Strohm was not called by the respondent.
Hine, the foreman of the crew, who was sitting in the car through-
out this incident, denied that anything was said about union activ-
ities, and stated that the men were asked if they had any grievances.
He testified that Strohm had requested Hine to drive him over to
the crew so that he could tell them about the wage increases. Hine
stated that it was common practice to tell the employees about the
wage increases individually since they did not always get identical
or simultaneous raises.
Nine's denial that Strohm discussed union activities is not, how-
ever, consistent with Dolan's testimony. Dolan testified that he
had directed Strohm to hold these individual conferences with the
members of this crew "and assure them that they were going to
be treated right and point out that we did not want any trouble or
strikes . . ." In brief, it is apparent from Dolan's statements that
the primary purpose of the conferences vas to discuss at least some
phases of union activities. Nor, as pointed out above, is Cross'
denial convincing in the light of his previous affidavit. Finally,
Strohm himself, the principal actor in this incident, was not called
to testify.
Under all the circumstances, we find that this incident occurred
substantially as testified to by Robertson.
F. E. Redman, is the respondent's superintendent in general charge
of the area around Newcomerstown. He is one of the officials under;
Dolan. E. C. Randles, an employee in the maintenance department,
and secretary of the United, testified that on April 23, 1937, about
which time he had been actively soliciting membership for the
13 The circumstances surrounding the prior discharge and reinstatement of Cross throw
considerable doubt on Cross ' denial and repudiation of his affidavit . In April 1937 Cross
had been injured while working . When Cross , who at that time was a member of the
United, applied for reinstatement on August 10, 1937, he was refused because, according
to Dolan, Cross had "stomach trouble and was unfit for our organization ." On August
21, 1937, Lolan reversed his decision and Cross was reinstated shortly thereafter. Dolan
explained that he had reversed himself because he had hoped Cross would accept the
dismissal without any complaint and "go back to the farm ." The affidavit which Cross
subsequently repudiated was dated August 18 and was sworn to before the notary on
August 23 , apparently the same day Cross returned to work.
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United, Redman, his superior, said to him, "I don't know what in
hell you are going to do next. Why are you causing us a hell of a
lot of trouble. It is getting down now to where it is damn serious.
You have contacted the men in the Northern Division to organize
them into the United . . ." Randles was not cross-examined by
the respondent and Redman was not called to testify, nor was any
showing of his unavailability made. We find that Redman made the
above statements to Randles.
Charles Bivenour is the meter superintendent in the service di-
vision. Several witnesses testified to various incidents relating to
Bivenour's hostility to the United. Thus John Crater stated that
Bivenour told him he should not have joined the United without first
consulting Bivenour; R. D. Stocker testified that Bivenour asked
him whether he had joined the United, and on obtaining an affirma-
tive answer, Bivenour suggested that Stocker give it "good consid-
eration. You know this is an appropriation job isa and can be stopped
at any time"; Bevan Pracht testified that after he had joined the
United, Bivenour questioned him, and said "I think that is a fine
way to treat your division manager by going and joining a union
after he has given you a position here"; Bivenour further repri-
manded Pracht for not having first consulted Bivenour, and he sug-
gested that if Pracht "dropped the union and went along with him,
Bivenour would do things" for him. W. H. Babcock, an employee,
testified that Bivenour came to his house on March 28, 1937, asked
him whether he had joined United, and said that he "didn't think
we was giving Mr. Dolan 14 a square deal and that he didn't think
that the Company could do anything for me if I couldn't go along
with them." Taylor Van Vleck similarly testified that Bivenour had
reprimanded him for joining United before consulting with him,
and that Bivenour said "if you will do that way, I am finished with
you, I cannot do anything for you."
Bivenour denied having made these statements. He admitted he
went to Pracht's house, but said the visit concerned giving Pracht a
permanent job; he admitted the conversation with Van Vleck, but
said it concerned business; he also admitted having visited Babcock.
In view of the consistency of the testimony given by these em-
ployees, however, we are not convinced by Bivenour's denials. Each
of these employees testified to a similar approach and method by
181 An "appropriation job" was a temporary or emergency job for which special funds
were from time to time allocated . By failing to renew the appropriation the crew could
be abandoned at any time.
is The frequency with which, during these activities of the various supervisors , Dolan's
name appears , confirms our conclusion, as set out above, that his conferences with the
supervisors and his attitude toward "outside" organizations were in part responsible for
the incidents here described.
OHIO POWER COMPANY 17
Bivenour : in each case, he inquired about membership in United,
complained of not being consulted first and then threatened demo-
tion or discharge. We find that these incidents occurred as testified
to by the various employees.
Respondent's treatment of United's demands: Late in March, the
United formed a grievance committee, but it was apparently not
until May that it requested conference with the respondent. On May
7, Dolan granted the request. He summoned all the superintendents
and department heads to the conference "so that if anything came up,
we could discuss it." Dolan described the meeting at the hearing :
"the boys came in and they were evidently surprised to find all the
superintendents and department heads there. I think they expressed
themselves as such. I got the impression that they expected to meet
me alone." The committee discussed planned overtime and the rule
requiring linemen to wear rubber gloves. "I asked those boys re-
peatedly if they had anything else to complain about. I thought
probably they had 2 or 3 other things in the back of their heads and
they didn't. They were slow and hesitant." We do not find it sur-
prising that the members of the United committee should have been
somewhat abashed at being faced with so formidable an array of
their superiors; the presence of all these supervisors was not likely to
be conducive to a full and free discussion on the part of the em-
ployees. Nevertheless, in the absence of any definite proof that Dolan
arranged the meeting in this fashion in order to intimidate the
committee, we shall make no finding that the respondent, by the
conduct of its agents at this meeting, violated Section 8 (1) of
the Act.""
On June 7, 1937, Strohm, the distribution superintendent whose
other activities have been discussed above, announced to a line crew
of which Kym was a member that "It's no use for the [United] com-
mittee to get together and draw up a contract, that the Ohio Power
Company would have nothing to do with it." Nevertheless, on or
about July 6, 1937, the United submitted a contract to Dolan. On
July 20, at a conference between Dolan and a United organizer, the
latter withdrew the contract since it had not been submitted to the
C. I. O. home office for approval. The United did not subsequently
submit a contract.
Several employees, however, who were members of one of the line
crews and of the United, testified that on or about August 16, 1937,
T. N. Bushnell the superintendent of the New Philadelphia area
and their superior, visited this crew and announced that the respond-
15 No such large gathering of the respondent 's officials was summoned to meet the
grievance committees of Topco as discussed below.
18 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ent would not sign a contract with the United.16 Bushnell testified
that he made this announcement after Dolan had informed him that
a contract had been received from the United and after Dolan had
instructed Bushnell to tell the members of the crew that the contract
would not be signed.
No explanation is made by the respondent, however, for the 4
weeks' delay between the withdrawal of the contract by the United
and Bushnell's announcements We cannot, therefore, believe that
the purpose of the announcement was simply to give information to
the crew. Further, no reason is assigned by the respondent for its
departure from the ordinary method of dealing through duly con-
stituted union representatives rather than singling out individuals of
a particular crew.
Under all the circumstances, we believe that Bushnell's conduct
was intended to forestall and discourage the activities of the United's
committees. IT
We find that by the acts described above, except the respondent's
treatment of the United's grievance committee on May 7, 1937, the re-
spondent interfered with, restrained, and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.1'
In its effort to keep itself apprised of the United's activities and to
prevent labor organization, the respondent also employed the services
of Dale Stickrath. The respondent and Stickrath deny that he acted
as a labor spy; we find, however, that the evidence establishes that
he did act as a spy.
Stickrath had been employed by the Burns Detective Agency from
1929 to 1936 and acted as general manager of its Pittsburgh office for
3 years . In February 1936 he interviewed Bivenour and Dolan in
an effort to obtain employment with the respondent. He filled out
an application for employment stating that he desired to transfer
"for betterment." Although Stickrath testified that he did not know
16 The testimony of the employees in this crew concerning Bushnell 's exact words Is
conflicting. Young testified that Bushnell said that the respondent would not recognize
any union. Although Korns, in an affidavit , corroborated Young, at the hearing Korns
testified Bushnell had said that the respondent "wouldn't sign a contract of no union."
John Davis , the foreman of this crew , testified that Bushnell had said that respondent
would not sign "the contract." We do not believe it necessary to resolve this conflict
since, accepting any of the versions , Bushnell 's conduct constituted an unfair labor
practice.
17 The respondent , however, met and discussed grievances with committees of the
United after August 16, 1937.
19 That the respondent was successful , at least to some extent, in causing its employees
to fear reprisals for their participation in the United 's activities Is indicated by the
testimony of W. P . Phelps, a former member of the United who later became president
of Topeo, Chapter IX. While Phelps was still a member of the United , he was ap-
proached by William Steadman , whose activities on behalf of Topco are discussed below,
and who was anxious to enlist Phelps' aid for Topco . Phelps testified that he was very
cautious since he "thought maybe he [Steadman ] was down there to find out what my
activities was in the C. I. O. or get some Information "
OHIO POWER COMPANY 19
whether Bivenour and Dolan were aware of his prior connection
with the Burns Agency, and although Dolan denied all knowledge
of it, Stickrath's application stated that such was his prior employ-
ment. Bivenour admitted that he had known that Stickrath had
formerly been a private detective with the Burns Agency.
Following these interviews with Bivenour and Dolan, Stickrath
was hired by the respondent to work in the service division under
Bivenour. Stickrath was hired in March 1936. This was at about
the time that Strohm had expressed anxiety that labor activities at
other neighboring plants might spread to the respondent's employees
and had visited Kym and requested Kym to inform him if any such
activities spread to the respondent's workers.
Stickrath was on the pay roll of the Burns Agency at the time
he was hired by the respondent, but he testified that this was only
because he wanted to be available for work for the Agency in case
he failed to obtain a job with the respondent. Stickrath testified
that as soon as the respondent hired him, he returned to Pittsburgh
to tell the Agency to remove his name from its pay roll.
Shortly after being hired Stickrath was assigned to the meter-
installation crew. Crater, Stocker, and Pracht, all active in the
United, were members of the crew. This was the crew which Bivenour
had warned about United activities,, and which he threatened, as
described above, to disband. When the United became active in
the service division, Stickrath joined United and was elected chair-
man of its ways and means committee. His activities in the United,
however, were largely confined to criticism; he stated at one of the
United meetings that "I don't see where the Union has done us any
good and our meetings seem to run in a circle." Subsequently,
Stickrath joined Topco. Stickrath testified that he had joined
United "to find what kind of a union it was. I figured if I didn't
like the kind of union it was I could get out."
Late in June 1937, Stickrath was transferred from the meter-in-
stallation crew to the laboratory in the Hydro plant in Coshocton,
where he "tested rubber gloves." Not long after he was thus trans-
ferred, the meter-installation crew was disbanded and Blum, Crater,
and Stocker were laid off, although at least Blum and Stocker had
seniority over Stickrath.
Stickrath's interest in labor activities was not confined to joining
the United. He admitted that in March or April 1937, he had
discussed the United with Bivenour. Although he did not know
until several days after the hearing had begun that he would be
called as a witness, and although until called he had no ostensible
reason for being present at the hearings, Stickrath attended the
hearings. While so attending them, he was still an employee of the
169134-39-vol. 12-3
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
respondent and thus presumably supposed to be working.19 He also
transported several Board witnesses to the hearings. One of these
witnesses was C. D. Reiss, who proved a reluctant witness and until
faced with an affidavit which he had signed to the contrary, insisted
at the hearing that Bivenour had never talked to him about Topco.
Stickrath further admitted that, although he claimed to have severed
connections with the Burns Agency in March 1936, he had visited
its Pittsburgh office a week before the hearing, and had there dis-
cussed with the Burns manager the respondent's labor situation.
Stickrath proved himself to be an evasive witness, unwilling to
testify frankly concerning his connection with the Burns Agency.
Although he gave a detailed description of the United's activities
and certain other events, he could not remember the name of the
manager of the Burns Agency with whom he had talked for "fifteen
minutes" a week before. Stickrath at first denied that while work-
ing for the Burns Agency he had ever been connected with under-
cover labor work; after lengthy examination, however, he disclosed
intimate knowledge of this type of work. When asked whether "an
inside missionary in respect to other relations with the working men
do any different work than that done in respect to communism" he
testified that "It has not been any different than that done under
me," and, when confronted with a report of the Senate Committee
on Education and Labor investigating interference with the right
of labor to organize and bargain collectively, admitted that in 1935
he had written a letter to the New York office of the Burns Detective
Agency giving an account of his visit to the Copper Coal Company
concerning that company's under-cover work. The clearness of the
impression created by Stickrath's demeanor and general bearing on
the stand that he acted as a labor spy for the respondent is indicated
by Topco's counsel's questioning of Stickrath as to whether Stickrath
had been instigated by the Board's attorney so to conduct himself
on the stand as to "create the impression that he was an undercover
man for the Company."
Nor are we satisfied with Stickrath's explanation for his having
transferred from the Detective Agency to the respondent. In the
course of his testimony Stickrath gave several reasons : he stated
that his health was bad, that he was disgusted with the detective
business, that his wife had to take a rest in Atlantic City and his
salary with the Agency was insufficient. In making out his applica-
tion, however, Stickrath affirmed that his health was good. At
another point in his testimony,. he stated that his wife's vacation
was at the expense of her parents. Nor are his protests of disgust
"As stated above his place of employment was in Coshocton while the hearings were
held at Canton, a distance of approximately 62 miles.
OHIO POWER COMPANY 21
convincing in view of his subsequent visits to the Agency or of his
explanation, as described above, of why he had left his name on the
Burns pay roll until hired by the respondent.
The respondent apparently attaches some significance to the fact
that Stickrath's native city was Coshocton and that he had in 1923
been employed by the respondent. It introduced evidence to show
that Stickrath was simply returning to his native city and that it
was generally known that Stickrath had been employed by the
Burns Agency and was called "G-man" by the respondent's employees.
We do not believe that these facts negate the evidence described
above. That the employees knew Stickrath had been a detective is
not evidence of the fact that they were aware of the type of detective
work in which he had been engaged, especially in view of his re-
luctance, displayed at the hearing, to admit that such work included
labor espionage. Nor does the fact that Stickrath had formerly lived
in Coshocton and worked for the respondent carry the necessary in-
ference that lie was simply returning home. On the contrary, it is
reasonable to infer that Stickrath's familiarity with the employees
and the work of the respondent, as well as his association with
Coshocton, in the minds of others, were factors taken into considera-
tion as making him a peculiarly well suited person to engage in
espionage without suspicion falling either on him or on the
respondent.
Stickrath's history of employment with the respondent follows
the general pattern of that of a labor spy. His former connection
with the Burns Agency, the coincidence of dates between his being
hired by the respondent and Strohm's attempt to enlist Kym's aid in
obtaining information concerning labor activities among the respond-
ent's employees, his subsequent association with a crew comprised
of active United members, his temporary membership and success
in, and his destructive criticism of, the United, his transfer from this
crew shortly before it was disbanded and his continuing interest in
the labor relations of the respondent, indicated by his attendance at
the hearings and his visit to the Burns Agency, all point to the nature
of his work. Further, his unsatisfactory testimony strengthens the'
belief that he acted as a labor spy.
Taking into consideration all the evidence, as well as the respond-
ent's hostility to, and desire for information concerning United
activities in the service division as described above, we find that the
respondent employed Dale Stickrath for purposes of industrial espi-
onage, and that the respondent thereby interfered with, restrained,
and coerced its employees in the exercise of the rights guaranteed
in Section 7 of the Act.
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Formation of, interference with, and support of Topco
1. The organization of Topco
Late in May or early in June 1937, the idea of forming an inde-
pendent union among respondent's employees was first broached in
Canton.20 The record is silent concerning the identity of the par-
ticular employees who suggested such an organization, but it appears
that these employees soon brought the idea to Norman McGregor, a
collector in the credit department of the respondent's Canton office.
McGregor attributed his having been chosen to take steps to carry out
the idea to the fact that he was the president of an employees' social
club and active in employee affairs. On June 7, 1937, McGregor called
on a local attorney who, because of his activities in forming "employees'
leagues" in neighboring plants, McGregor thought was "familiar with
the nature of the work we wanted." The attorney outlined to Mc-
Gregor the steps that should be taken, and furnished McGregor with
a statement concerning the Wagner Act and with model application
cards.
Thereafter, Topco Employees Association, an unaffiliated labor or-
ganization, was created with remarkable speed. McGregor's confer-
ence with the attorney lasted from 2: 30 p. in. to 4 p. in., June 7, 1937.
This conference was claimed to be the first occasion at which a concrete
plan for an independent union was formulated. Yet that very evening
the first meeting of Topco, Chapter I, was held, with approximately
125 employees in attendance. At this meeting McGregor explained
the purposes of the organization and asked for a show of hands on
whether the plan was to be adopted. The plan was almost unani-
mously approved; temporary officers were chosen; and about 100
printed membership application cards were signed. In short, between
4 p. m. and 7:30 p. in., when the meeting was begun, the testimony
shows that a meeting hall was secured, at least 125 employees were
notified and application cards were printed. This considerable task
was accomplished on a Monday, when presumably the employees were
engaged in the business of the respondent. It was purportedly ac-
complished, moreover, by McGregor, who in his testimony showed
ignorance concerning the constitution, procedure, and structure of
Topco.
By Thursday, June 10, Topco Chapter I's claim to membership had
risen to 250 out of a total of 400 eligible employees. In the evening
of June 10, a second meeting was held, the constitution and bylaws
° Several witnesses attributed the idea of an unaffiliated union and their membership
therein to their desire to avoid the "unpleasantness " attendant upon the strikes then in
progress at the nearby Republic Steel Corporation 's plant and other plants.
OHIO POWER COMPAXY 23
prepared by the attorney were presented and adopted, and permanent
officers were elected. It was at this meeting that William Steadman,
a relay tester attached to the Canton office, who had not been present
at either of these first two meetings, was elected as representative of
the eight "migratory laboratory" crews which worked out of the
general office in Canton and traveled throughout Ohio. It was sug-
gested at this meeting that Topco be organized in the respondent's
other divisions "because if we have got an organization . . . it won't
be so easy to penetrate and it won't be so easy to stop our activities." 21
The following day, McGregor told Steadman of the proposal and the
latter enthusiastically agreed. Together they visited the attorney,
who outlined the procedure to be followed.
On or about June 14, 1937, Steadman left Canton and traveled
throughout the various divisions in Ohio. In each division he made
contacts with employees, meetings were called, and chapters were set
up. On July 9, Steadman announced to the chapter presidents, "I have
done all I can for you boys, it's up to you now, you are on your own."
Steadman had left in his wake eight Topco chapters. On July 9,
Topco claimed approximately 1,475 members, with each of eight chap-
ters claiming a majority in its division. Only Chapter IX, the service
division where United had been active, did not claim a majority at
that time.
2. Topco's administration and activities
Each of the nine chapters has its own constitution and bylaws which,
however, are virtually identical. Each chapter has its own officers
and committees. Each constitution provides that only those employees
who have worked for the respondent for a year, are over 21 years
of age and are American citizens, may be officers of Topco or mem-
bers of the executive committee. There is some doubt whether Topco
is permitted to strike. An opinion prepared by Topco's attorney
states that the appeal had to be to "reason and common sense." The
general understanding, however, was that Topco could strike, but in
case of a strike in any division, the other eight chapters will not be
implicated in any manner and "each chapter will have to stand on its
own feet."
After its completion, Topco chapter committees held conferences
with the management and settled some grievances. Two chapters,
however, had no grievance committees because, according to their
z< Several of the leaders and members of Topco ascribed the inception of Topco and
their participation the,ein to their hostility to "outside " organization . Thus McGregor,
in a letter addressed to the other Topco Chapter presidents, wrote : "We originally set up
this Association in Canton for the purpose of protecting our jobs and also to eliminate
the possibility of any national or international association entering into our Company."
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presidents, they had no grievances. In the middle of July each of
the nine Topco chapters requested of the respondent exclusive bargain-
ing rights for the employees in its division. The respondent, by
identical letters to the nine chapter presidents who made the request,
agreed to recognize Topco for its members only 22 Topco made no
demands for a contract. Its attorney stated that respondent was not
obligated to sign a contract and that Topco was not ready to demand
one. At least one employee, at a chapter meeting, suggested that
Topco ask for a contract, but the chapter president opposed the
suggestion.
After its first rapid organization, interest in Topco dwindled. At
least one chapter held no meeting for the members between July 15,
1937, and the time of the hearing. In general, Topco had considerable
difficulty in collecting dues, and, as one president observed, "We charge
dues but we don't get them." Several Topco members expressed dis-
satisfaction with its procedure and felt that the organization was not
to establish "any real good definite purpose for the activities." The
evidence shows that, as a result of such dissatisfaction, there were
during the summer substantial defections by Topco members to the
Brotherhood and the United. The weakness of Topco, its policy to-
ward striking, and its hostility to outside unions as expressed by its
leaders coincides with the respondent's expressed desires as found in
Section III-A above.
3. Contribution of support to Topco; use of the respondent's facilities
The record shows that the rapid growth of Topco was not accom-
plished without the aid of the respondent's equipment, facilities, and
time. Certain items are admitted. Thus it appears that 30 gallons of
gasoline were supplied to employees who transported 4 or 5 fellow
employees to the first meeting of Topco, Chapter III. A company
truck and trailer were used by employees, during working hours and
with the approval of the foreman, to haul chairs for at least one meet-
ing of Chapter III. Widespread solicitation and collection of dues oc-
curred on company time and property, often in the presence of and
without objection by foremen. Topco leaders admitted that they
solicited membership and collected dues "just whenever I run into one
of them." Company cars were frequently used for Topco business :
Stewart, a chapter president, admitted having driven a company car
130 miles in one evening to attend a meeting. Merlo, an active Topco
member, also used a company car to attend meetings and collect dues;
McGregor, who was employed at Canton, not only used a company car
22 Thereafter, each of the nine chapters filed petitions for investigation and certifica-
tion with the Eighth Regional office.
OHIO POWER COMPANY 25
to attend at least three Topco presidents' meetings 23 in Columbus, and
several branch meetings 24 elsewhere, but was driven to these meetings
by one Gallagher, a clerk in the Canton office. Although McGregor
testified that Gallagher had company business to transact in Columbus
on the first occasion, the record shows that Gallagher, who was not
an officer of Topco and had no ostensible reason for so doing, attended
the Topco presidents' meeting and waited the entire day to drive
McGregor back to Canton. No explanation is made for Gallagher's
subsequent journeys to Columbus.
Further, miscellaneous use of other company equipment is undenied;
McGregor on one occasion used the respondent's transmission system
to make a long-distance telephone call to another Topco president;
George Flint, president of Chapter II, admitted he used a company
mimeographing machine to prepare Topco statements; an office ste-
nographer typed Topco letters on a company typewriter. Finally,
it is admitted that except in the case of the trip of John Burns, the
president of Chapter VI, the respondent permitted the presidents and
officers of Topco to abandon their work for each one of the five Topco
presidents' meetings held during the summer and fall of 1937 in
Canton and Columbus. Although these Topco officers often were
absent from their work for a full day to engage in Topco affairs,
the respondent neither objected nor made deductions in their pay
for time so lost.
The respondent has various explanations for these occurrences.
It explains the use of the gasoline on the ground that its custom is
to furnish gasoline to employees who use their own private cars
to transport other employees to safety, promotional, and social meet-
ings. It claims that Gilbert Tallman, the assistant storeroom clerk
who supplied the gasoline to employees who attended the Topco meet-
ing, did so without authorization and because he thought that the re-
spondent's usual custom was applicable. Tallman, however, dis-
tributed at least some of the gasoline the day after the Topco meet-
ing. Even after he attended the meeting, therefore, Tallman was
still under the impression that it was a company meeting and that
employees were entitled to gasoline for transportation to it. Simi-
larly, the respondent explains the hauling of chairs as a customary
favor to employees when they hold fish frys or conventions; that
it was the respondent's custom to permit employees who are on call
2 Immediately after the various chapters of Topco were created, Topco leaders decided
to hold occasional meetings for the presidents and other officers of each chapter , in order
that they might discuss their common problems and exchange ideas.
4 Since each Topco chapter covered a large area , so that general meetings for all
members of the chapter were difficult, smaller groups in each chapter occasionally held
meetings in the particular area in which they worked.
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
24 hours a day to take occasional days off; that if in the performance
of ordinary company business those employees who are on call for
24 hours are given the use of a car, such employees, because of the
difficulty of checking whether the cars are used for company business
only, are permitted to use the car for private purposes. Moreover, it
is claimed that the respondent was equally generous in its permitting
the United and the Brotherhood to solicit on company time and
property, and that the use of the mimeograph machine, the transmis-
sion system, and the stenographer was a matter which it could not
prevent.
The peculiar nature of the respondent's organization, entailing as
it does a certain amount of unsupervised freedom of the actions of
its employees, would lead us to give weight to these contentions if
the cumulative effect of this generosity were not so great. When
taken together, the respondent's net contribution to Topco was con-
siderable and the total aid rendered to it cannot lightly be dismissed 25
Thus, for example, the Topco presidents' meetings were ordinarily
attended by the president of each chapter as well as by another
officer . Eighteen employees, therefore attended five meetings, each
of which apparently took the employee away from his work for
a full day. A rough approximation of the time spent by these
employees on this particular phase of Topco business would barely
fall short of 90 working days.26
Nor are other of the respondent's explanations borne out by the
record. McGregor, who was allowed such free use of company cars,
did not, as discussed above, use his own company car but was sup-
plied with the car of Gallagher, who acted as chauffeur for Mc-
Gregor. Further, it does not appear that all of the 9 Topco presi-
dents who were permitted leaves fall within the category of em-
ployees who are on 24 hours call daily. McGregor was a collector
in the credit department. Flint, president of Topco Chapter II,
was engaged in "contacting commercial customers in the commercial
and industrial departments." J. E. Sherwood, president of Chap-
ter V, is a substation operator. John Burns, president of Chapter
VI, is a store clerk. The respondent did not attempt to show that
these employees, or any of the other Topco officers who accompanied
them to the Topco presidents' meetings, belonged to the group whose
2'Topco and the respondent , however, submitted in evidence many receipts showing
Topco's payment for ordinary expenditures such as postage , printing, meeting halls, etc.
No charge was made for meeting places either for the five Topco presidents' meetings or
for the Chapter I meetings . The various owners, according to Topco , contributed these
free.
20 The wages of one Topco chapter president were deducted by the respondent for one
meeting he attended.
01110 POWER COMPANY 27
work entitled them to occasional leaves for a full day without deduc-
tion in pay.
Finally, the respondent's claim that it accorded to the United
and the Brotherhood equally generous treatment is scarcely sup-
ported by the record. There is no evidence that the United or the
Brotherhood were allowed to share the respondent's facilities equally
with Topco.27 Moreover, the respondent's cordial treatment of Topco
is in sharp contrast to the hostility described in Section III-A which
it showed against the United's activities in the service division, the
only division in which the United was active.
Nor were the respondent's supervisory officials wholly inactive in
assisting Topco's rapid growth. Ralph Hiester, chief clerk at the
respondent 's office in Dennison, informed Byron Jones and one Boyd,
employees of the respondent, of a Topco meeting and requested them
to attend. Hiester stated that it was "not company orders" that they
go, whereupon Baldwin, the assistant chief clerk, who was present,
remarked "Well, you can read between the lines." Hiester offered
Jones transportation to the meeting and stated "If you boys are
smart, you'll be there." Baldwin denied that either he or Hiester
made these remarks, but admitted that he had said that these em-
ployees' "presence was required at that meeting the same as everybody
in the district to understand what was going on." Baldwin further
admitted that Hiester had informed several employees of the Topco
meeting. Hiester, the principal actor, was not called upon to deny
having made the statements attributed to him by Jones. We find
that the incident occurred as testified to by Jones. Similarly Edith
Hollingshead, chief clerk at the Fostoria office, was active in Topco
affairs , soliciting membership and collecting dues. Although the re-
spondent denies that either Hollingshead or Hiester are supervisors,
the evidence shows that each is in charge of a staff of 4 to 6 clerks.
They have, it is true, no power to hire or discharge . Hiester 's assist-
ant, however, admitted that the staff under Hiester reports to and
takes orders from Hiester "as routine work." E. D. Chapman,
division manager, further admitted that Hollingshead "does dominate
the duties in that particular group" and "in a sense" supervises the
clerks. We find that Ralph Hiester and Edith Hollingshead are
supervisory employees of the respondent and that they encouraged
membership in Topco.
21 The evidence does show, however, that there was some solicitation on company time
and property by both the United and the Brotherhood , that the United held a meeting
in a park owned by the respondent but devoted to public use, that Dolan "told Wilson
[the Brotherhood representative ] to go out and talk with" the employees , and that Dolan
permitted Fauver , a C. I. 0 . organizer, to address a meeting of the employees as
described above.
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The evidence shows that the respondent's generous treatment of
Topco, and the activities of supervisory officials 28 had their effect
in impressing the employees with respondent's close relationship to
Topco. The belief was common that Topco meetings were company
meetings. Thus, several employees testified that they attended the
first Topco meetings because they understood "everybody was sup-
posed'.' to go; Baldwin stated that he told the employees that their
"presence was required the same as everybody else in the district to
understand what was going on." When asked at the hearing why he
had not attended the first Topco meeting, Pollack, an employee, re-
plied, "Well, it was my duty to work; it was my trick, so I thought
that the man that was on duty was excused from any meetings."
How widespread was the belief, engendered by these activities
described above, that Topco was a company creature, even after it
had been in existence for some time is illustrated by the description,
given by Dolan, general manager of the service division, of a visit
paid him by Topco representatives to request Dolan's aid. Dolan
testified that when he refused his aid and told them he must remain
impartial, "Those fellows looked at me in amazement . They sat there
dumfounded. They were positive, I suppose, that I was back of the
thing. Those boys walked out with heads down because they were
sure that I was going to make it easy for them."
Thus aware of the common belief that the respondent was sup-
porting Topco, the respondent not only took no steps to disaffirm such
a relationship but, as described above, was most generous in lending
color to the belief. We cannot believe, under such circumstances,
that membership in Topco was entirely the result of the free choice
of respondent's employees.
4. William Steadman
As stated above, William Steadman was the key figure in the
organization of Chapters II-IX of Topco. The complaint alleges
that he was an organizer furnished by the respondent. The specific
persons whom Topco and the respondent claim to have been responsi-
ble for Steadman's initial participation in Topco's organization are
not identified by the evidence. As noted above, he was elected as
"general representative" at the second meeting of Chapter I, although
28 The record also shows that it was a common practice for various supervisors to
discuss Topco affairs with the respondent 's employees . Thus, Doughty, the general
manager of the respondent 's Valley Division , was admitted to have discussed Topco with
J. R. Thomas , president of Chapter VIII, several times, asking him "how Topco was
getting along " Thus, too, Steadman testified that he "may have had occasion to be
working with a foreman or superintendent , or talking , and he would say, 'How is Topco
coming along ?' I would say, '0 . K., as far as I know, fine.' 'I am glad of It.'"
OHIO POWER COMPANY 29
he was not present and not yet a member of Topco. McGregor
attributed the idea of expanding Topco to the respondent's other
divisions, and enlisting Steadman's aid in this project, to "a group
of these fellows from the general office" who congregated after the
second meeting and made the suggestion. McGregor saw Steadman
the next day and outlined the plan; Steadman told McGregor that
he "was certainly willing to put in what extra time I possibly could
in order to convey to these employees in the other divisions anything
that was in my power." On June 14, Steadman ]eft Canton and
by July 14, Topco organization was virtually completed.
Steadman's ordinary work is to check automatic equipment through-
out the respondent's State-wide properties. He checks not only indi-
vidual current transformers but also the equipment at the "eight or
nine hundred" substations scattered through the State. This general
type of work not infrequently requires his taking trips for from 2 to
4 weeks in a car supplied by the respondent. He carries his equip-
ment with him, but tools are not always required for his work. In
addition to these ordinary duties, Steadman, during the period in
question, also checked name-plate data. As a result of modernization
of equipment in various parts of the State, the respondent's records
of equipment had not been brought up to date. Early in April, it
was decided by Daniel Morgan, Steadman's superior, that either
Steadman or one of the other employees under Morgan should col-
lect all the name-plate data as soon as opportunity presented itself.
The record amply demonstrates Steadman's extraordinary activity
between June 14 and July 14, 1937. In each division at which he
arrived, he made contact with several employees, explained the idea
and purposes of Topco-often during the day when the employees
were working-and had meetings called. He attended the initial
meeting of each chapter, conducted the meeting, made speeches, and
distributed cards. If, as occurred on at least two occasions, the first
meeting did not result in a Topco chapter, Steadman returned for
further meetings.
It is insisted by the respondent that during this period, Steadman
performed his full quota or ordinary work. Steadman stated that
he performed his 8 hours' daily work "and what I do after my eight
hours' work is up to me." Morgan, Steadman's superior, while
admitting that he had known of Steadman's activities on behalf of
Topco, testified that Steadman's production of work during this
period was "the same as always." Steadman further testified that he
did not segregate expenses incurred in connection with Topco. He
said, "I cannot believe that any of my expenses were increased in any
way whatsoever."
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
These contentions should, however, be viewed in the light of Stead-
man's itinerary, compiled from undenied testimony,29 for the period
in question :
June 14: Canton June 29: Newark ; Canton
June 15: Lima June 30: Zanesville
June 16-19: Tiffin July 4-5: Cambridge ; Coshocton ;
June 21: Newark Newcomerstown
June 22: Steubenville July 6: Cambridge; Dennison;
June 23: East Liverpool New Philadelphia; Newcomers-
June 24: East Liverpool; Wheel- town; Coshocton
ing, W. Va.; Bellaire July 7: Newcomerstown
June 25: East Liverpool; Steuben- July 8: Zanesville, Newark;
ville Columbus
June 26-29: Portsmouth July 9: Columbus
The deviousness of this route and the distances between the various
places he visited become apparent when his itinerary is traced on a
map of this territory. Steadman's itinerary was wholly lacking in
any logical pattern which might seem to be called for if he were
intent on doing his ordinary work for respondent. The route is
replete with revisits and retracking. When asked at the hearing
whether he ever went "to any division expressly for the purposes of
organizing," Steadman replied, "Well, that is a little of a hard
question to answer. I was very much enthused about getting this
organization started ... I could be in any part of the division that
I so desired to go at that time."
In all these places , Steadman was reported to have been engaged
in some activities on behalf of Topco. Throughout the entire journey,
he used a company car. Although a work report and expense ac-
count are filed with the accounting department the respondent did
not offer in evidence such documents pertaining to Steadman. Depite
the fact that a great many witnesses testified to having seen and
talked to Steadman during the days of this period, the record, except
for one or two isolated instances , is devoid of evidence that any
employees actually saw Steadman engaged in his ordinary work.
Moreover, the itinerary shows that Steadman spent at least a night
and a full day in Columbus, although respondent has no equipment
there with which Steadman could be concerned.30
19A few of the dates testified to are approximate ; it is clear , however , that this
itinerary is substantially accurate.
° Morgan attempted to explain Steadman's presence in Columbus on the ground that
Columbus was a normal stopping -over place on the long drive from Portsmouth to Canton.
Steadman, however , came to Columbus from Zanesville and Newark , which are east of
Columbus while Portsmouth is south. Nor does Morgan's explanation account for
Steadman 's remaining in Columbus the day of July 9.
OHIO POWER COMPANY 31
Under all the circumstances, and in view of his circuitous route
and his constant absorption in Topco affairs and in view of the re-
spondent's knowledge thereof, we cannot believe that Steadman's
activities in behalf of Topco were accomplished without the
respondent's authority.
Conclusions concerning the respondent's relationship to Topco
The foregoing findings impel us to the conclusion that the respond-
ent assisted and dominated Topco. Through its various supervisors,
the respondent was active in its hostility to the United's organiza-
tional efforts. In this setting of the United's organizational cam-
paign and the respondent's opposition thereto, Topco was created
with the active encouragement of some of the respondent's super-
visors and with the passive encouragement of many more. In the
face of the general belief among the employees that Topco was
company dominated, Topco's organization was aided by its use of
the respondent's cars, time, and other facilities, and by the unre-
strained activities of Steadman. Topco's weak structure, its lack of
aggressiveness, its admitted hostility to "outside" labor unions all
indicate that it was an organization which sprang up in response to
the respondent's expressed desires.
We find that the evidence introduced by the respondent and Topco
does not refute the conclusion, impelled by the above affirmative
evidence of company assistance, that Topco is the respondent's
creature. Although they claim that certain employees in Canton
were responsible for the original idea of forming an unaffiliated or-
ganization, neither Topco nor the respondent have identified or
produced those employees.31 Nor has the respondent satisfactorily
accounted for the widespread use of company cars, or McGregor's
use of Gallagher as his chauffeur, or the freedom with which Topco
officers were permitted to abandon their work without deduction in
pay in order to engage in Topco business.
Finally, Topco and the respondent have failed satisfactorily to ac-
count for Steadman's participation in Topco. Although he was the
key figure in Topco's organization, they have not identified or pro-
duced the employees who are claimed to have suggested that Stead-
man expand Topco to the remaining divisions of the respondent.
And, despite the grave suspicions concerning Steadman's status,
arising from the evidence of Steadman's journeys and constant Topco
activities, and from the absence of evidence that he did his ordinary
8 'The remarkable speed with which Topco, Chapter I, was created and supplied with
membership cards, etc ., in Canton during the late afternoon of June 7, 1937, has been
described above.
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work, the respondent did not produce his work record or expense
account during this period, made no attempt to segregate his ex-
penses incurred in Topco business, and could offer no satisfactory
explanation for his presence in Columbus.
Under all these circumstances, we conclude that Steadman was an
organizer furnished by the respondent to organize Topco, and that
the creation of Topco was achieved with the aid and support of the
respondent.
We find that the respondent has dominated and interfered with
the formation and administration of Topco Employees Association,
Chapters I-IX, and has contributed support to it.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and substan-
tial relation to trade, traffic, transportation, and communication
among the several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since the respondent has engaged in unfair labor practices, we shall
order the respondent to cease and desist therefrom and to take cer-
tain affirmative action designed to effectuate the policies of the Act
and to restore as nearly as possible the conditions which existed
prior to the commission of the unfair labor practices.
We have found that the respondent has dominated and interfered
with the formation and administration of Topco Employees Associa-
tion, Chapters I-IX, and has contributed support to it. In order
to effectuate the policies of the Act and free the employees of the
respondent from such domination and interference, and the effects
thereof, which constitute a continuing obstacle to the exercise by the
employees of the rights guaranteed them by the Act, we will order
the respondent to withdraw all recognition from Topco as represent-
ative of the respondent's employees for the purpose of dealing with
the respondent concerning grievances, labor disputes, rates of pay,
hours of employment, and conditions of work, and to disestablish
it as such representative.82
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
32 See Consolidated Edison Co ., Inc. et al. v. National Labor Relations Board, 59 Sup.
Ct. 206 ( 1938 ), where the Court said :
The continued existence of a company union established by unfair labor practices
or of a union dominated by the employer is a consequence of a violation of the
Act and renders ineffectual any order restraining the unfair labor practices.
OHIO POWER COMPANY
CONCLUSIONS OF LAW
33
1. United Electrical, Radio & Machine Workers of America, Local
729; Locals B-759 and B-981, International Brotherhood of Electrical
Workers; and Topco Employees Association, Chapters I-IX, are
labor organizations within the\meaning of Section 2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of and contributing support to Topco Employees Associa-
tion, Chapters I-IX, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (2) of
the Act.
3. 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.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of law
and pursuant to Section 10 (c) of the National Labor Relations Act,
the National Labor Relations Board hereby orders that the respondent,
The Ohio Power Company, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist :
(a) From in any manner dominating or interfering with the ad-
ministration of Topco Employees Association, Chapters I-IX, or the
formation and administration of any other labor organization of its
employees, and from contributing financial and other support to
Topco Employees Association, Chapters I-IX, or any other labor
organization of its employees;
(b) Maintaining surveillance of or employing any other means of
espionage for the purpose of ascertaining and investigating the ac-
tivities of its employees in connection with any labor organization;
(c) From in any other manner interfering with, restraining, or co-
ercing its employees in the exercise of the 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 purpose 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 purposes of the Act :
(a) Withdraw all recognition from Topco Employees Association,
Chapters I-IX, as a representative of any of its employees for the
34 DECISIONS Off' NATIONAL LABOR RELATIONS BOARD
purposes of dealing with the respondent concerning grievances, labor
disputes, rates of pay, wages, hours of employment, or other condi-
tions of employment, and completely disestablish Topco Employees
Association, Chapters I-IX, as such representative;
(b) Immediately post in conspicuous places throughout the various
plants in its system, including among such places all bulletin boards
commonly used by the respondent for announcements to its em-
ployees, notices stating (1) that the respondent will cease and desist
in the manner aforesaid; and (2) that the respondent withdraws all
recognition of Topco Employees Association, Chapters I-IX, as a
representative of its employees for the purposes of dealing with the
respondent concerning grievances, labor disputes, rates of pay, wages,
hours of employment, or other conditions of employment, and that
the respondent completely disestablishes it as such representative;
(c) Maintain such notices for a, period of at least sixty (60) con-
secutive days from the date of posting;
(d) Notify the Regional Director for the Eighth Region in writ-
ing within ten (10) days from the date of this Order what steps the
respondent has taken to comply therewith.