Virginia Electric and Power Co.

National Labor Relations Board - Board Decisions

Sep 24, 1942

44 N.L.R.B. 404 (N.L.R.B. 1942)

In the Matter of VIRGINIA ELECTRIC AND POWER COMPANY and TRANS-
PORT WORKERS UNION OF AMERICA
In the ' Matter Of VIRGINIA ELECTRIC AND POWER COMPANY and
AMALGAMATED ASSOCIATION OF STREET, ELECTRICAL RAILWAY AND
MOTOR COACH EMPLOYEES OF AMERICA , AN UNINCORPORATED ASSO-
CIATION
In the Matter Of VIRGINIA ELECTRIC AND POWER COMPANY and INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
Cases Nos . C-914, C-915, and C-916 , respectively.-
Decided September 24, 19.1
Jurisdiction : electric, gas, and transportation utility industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: espionage, interrogation concerning union
matters, threats of discharge ; surveillance, anti-union statements.
Company-Dominated Union: Posting of bulletin subtly inveighing against national
unions; addressing representatives'of the employees chosen by the employees
in every department at its request and urging the formation of a bargaining
agency of their own, suggesting any wage increase granted would be retro-
active, and allowing representatives to meet on company property ; promptly
granting check-off of dues and a closed shop.
Discrimination: discharge of one employee for union activity; discharge of two
employees pursuant to invalid closed-shop contract
Remedial Orders : reinstatement with back pay to two employees; reinstate-
ment and back pay withheld in case of one employee discharged pursuant to
invalid closed-shop contract because about time of discharge employer received
and acted upon information leading it to believe ' that employee had twice
falsely reported losing company money in accidents; dominated organization
disestablished ; contract set aside ; reimbursement of dues required
Mr. Gerhard P. Van Arleel, Mr. Reeves R. Hilton, and Mr. Samuel
Al. Spencer, for the Board.
Hunton, Williams, Anderson, Gay & Moore, by Mr. 7'. Justin Moore
and Mr. George D. Gibson, of Richmond, Va., and Venable, Miller,
Pilcher cC Parsons, by Mr. Roman Miller, of Norfolk, Va., for the
respondent.
Mr. T. H. Latham, of Virginia Beach, Va., and Mr. E. D. Bierety,
of Washington, D. C., for the I. B. E. W.
44 N. L. R. B, No. 75.
404
VIRGINIA ELECTRIC AND POWER COMPANY 405
Mr. Arthur E. Reynaan, of New York City, Mr. Floyd, Kreisell, of
Columbus, Ohio, and Zimring and Rabe, by Mr. 0. David Zimring, of
Chicago, Ill., for the' Amalgamated.
White, Temple, Hamilton c6 Wyche, by Mr. W. Earle White, of
Petersburg, Va., and Mr. Paul Hadlick of Washington, D. C., for the
I. O. E.
Mr. Owsley Pose, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE ,
On July 20, 1937, Transport Workers Union of America, herein
called the T. W. U., filed with the Regional Director for the Fifth
Region (Baltimore, Maryland), charges that Virginia Electric and
Power Company, Richmond, Virginia," herein called 'the respondent,
had engaged in and was engaging in unfair labor practices affecting
commerce, within the meaning of Section 8 (1) and' (3)_and Section
2 (6) and' (7) of the National Labor Relations Act, 49 Stat. 449, herein
called the Act. On August 26, 1937, the T. W. U. filed amended
charges that the respondent had engaged in and was engaging in unfair
labor.practices, within the meaning of Section 8 (1), (2), and (3) and
Section 2 (6) and (7) of the Act. On February 23,1938, Amalgamated
Association of Street, Electrical Railway, and Motor Coach Employees
of America, herein called the Amalgamated, filed with the Regional
Director, charges that the respondent had engaged in and was engaging
in unfair labor practices, within the meaning of Section 8 (1) and' (2)
and Section 2 (6) and (7) of the Act. On April 2, 1938, and on April
13, .1938, »Iiiternational` 'Brotherhood of Electrical 'Workers, herein
called the I. B. E. W., filed with the Regional Director charges and
amended charges, respectively; that the respondent had engaged in and
was engaging in unfair labor practices, within the meaning of Section
8 (1), (2), and (3) and Section 2 (6) and (7) of the Act. On April
13, 1938, the National Labor Relations Board, herein called the Board,
acting pursuant to-National Labor Relations Board Rules and Regula-
tions-Series 1, as amended, ordered that the cases be consolidated for
the purpose of hearing. On May 7, 1938, the Board, by the Regional
Director,' issued its complaint against 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)
' Referred to as Virginia Electric & Power Company in tiie complaint.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'and Section 2 (6) and (7) of the Act. Copies of the complaint, accom-
panied by notice of hearing, were duly served upon the respondent, the
I. B. E. W., the Amalgamated, the T. W. U.,2 and The Independent
'Organization of Employees of Virginia Electric and Power Company,
a labor organization, herein called the I. O. E.
Concerning the unfair labor practices the complaint alleged in sub-
stance that (1) since about May 1, 1937, the respondent dominated and
interfered with the formation and administration of the I. O. E. and
contributed support to'it; (2) that the respondent on or about Novem-
ber 15, 1937, discouraged membership in the I. B. E. W. by terminating
the employment of A. F. Staunton 3 and thereafter refusing to reinstate
him because of his refusal to join the I. O. E. and because of his affilia-
tion with the I. B. E. W.; on or about April 20, 1938, discouraged mem-
bership in the I. B. E. W. by terminating the employment of T. N.
Harrell, Jr., and J. L. Judge,' and refusing to reinstate them because
of their membership in the I. B. E. W. and because they had engaged
in concerted activities with other employees; and that on or about May
30, 1937, the respondent discouraged membership in the T. W. U. by
terminating the employment of Everard M. Mann and refusing to
reinstate him because of his membership in the T. W. U. and his con-
certed activities with other employees; (3) that the respondent on or
about August 5, 1937, entered into an agreement with the I. O. E.
providing, inter alia, that membership in said organization should be a
condition of employment with the respondent and that said agreement
was entered into with a labor organization which had- been established,
maintained, and assisted by unfair labor practices and which was not
.the representative of the respondent's employees as provided in Section
9 (a) of the Act; and (4) that the respondent ,interfered with, re-
strained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act by making statements hostile to, and
tending Ito discourage membership of its employees in, the T. W. U.,
,the I. B. E. , W., and the Amalgamated, by maintaining surveillance
over the efforts of its employees to form a labor organization, and by
employing the service of detective agencies to -render - reports on the
organizational activities of its employees.
On May 12, 1938, the I. O. E. filed a motion for intervention stating
that it had entered into an agreement with the respondent on August
.5,.1937, by which the respondent recognized it as the exclusive bargain-
ing representative of all the respondent's employees with a few excep-
tions and denying that the respondent had dominated, supported, or
2 Copies of the complaint and notice of hearing which were sent 'to Mont Crum , the per.
son filing the amended charges for the T W. U, were ' returned to the Board . The T. W. U.
did not appear at the hearing nor participate in the proceedings.
Referred to as Alfred Staunton in the record.
4 Referred to as Johnny L Judge in the record.
VIRGINIA ELECTRIC ,AND POWER COMPANY 407
interfered with it. On May 14, 1938, the respondent filed its answer
denying that it was engaged in interstate commerce and denying that
,it had engaged in any of the unfair labor practices alleged in the
complaint.
Pursuant to the notice, a hearing was held in Norfolk, Virginia,
from 'May 19 to June 18, 1938, before James L. Fort, the Trial Ex-
aminer dilly designated by the Board. The Board, the respondent,
the I. B. E. W., the Amalgamated, and the I. O. E. were represented
by counsel and participated -in the-hearing. , The- I. O. E. was,per-
mitted to intervene with respect to the alleged unfair labor practices
within the meaning of Section 8 (2) of the Act. Full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing upon the issues was afforded all parties, subject, in
the cases of the I. O. E., to the limitation noted above. On May 21,
1938, the Amalgamated filed with the Regional Director amended
charges alleging that the respondent had further,engaged in unfair
labor practices, within the meaning of Section 8 (1) and (3) of the
Act by discouraging membership in the Amalgamated through its
discharges of-Joseph,Bolton on or about January 15, 1938, and Robert
E. Elliott, Jr., on or about November 3, 1937, and its refusals to rein-
state them because of their membership in the Amalgamated. On
motion of counsel for the Board the complaint was amended' at the
hearing, to incorporate these allegations.5 The Trial Examiner
granted the motion of counsel for the Board made at the close of its
case to conform the pleadings to the proof. During the course of the
hearing the Trial Examiner made rulings on other 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 September 13, 1938, the Trial Examiner filed his Intermediate
-Report' copies 'of which were served on a'll parties, in which he found
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) land--(7) of theAct, and recommended-
that the respondent cease and desist therefrom and take - certain
affirmative action to remedy the situation resulting from the unfair
labor practices. He further recommended that the allegations of
the complaint relating to the discharge of Joseph Bolton be dismissed.
On September 23, 1938, the I. O. E. filed exceptions' to the Inter-
mediate Report and on September 26, 1938', the respondent filed
exceptions to the Intermediate Report and a motion to dismiss the
,complaint. The respondent and the I. O. E. filed'briefs in'support, of
'their exceptions to the Intermediate Report.
On June 16, 1938, the respondent filed an amended answer denying that it had engaged
in unfair labor practices by its discharges of Bolton and Elliott.
9
408 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
Pursuant to notice duly served on all the parties, a hearing was
held before the Board in Washington , D. C., on April 11, 1938, for
the purpose of oral argument. The respondent , the Amalgamated,
the I . B. E. W., and the I. O. E. were represented by counsel and
participated in the argument.
The Board , on February 27, 1940, after consideration of the excep-
tions to the Intermediate Report and the briefs submitted in support
of said exceptions , issued its decision containing its' findings ' of fact,
conclusions of law, and order. In brief, the Board found that the
respondent had dominated and interfered with the formation and
administration of the I. O. E. and had contributed support to it in
violation of, Section 8 (2) of the Act ; had discharged four employees 6
in violation of Section 8 ' (3) of the Act ; and had by these and other
acts interfered with, restrained , and'coerced its employees in violation
of Section 8 (1) of the Act.
Thereafter , the ,respondent and the I. O. E. filed with the United
States Circuit Court of Appeals for the Fourth Circuit their sep-
arate petitions to review and set aside the Board 's order, to which
the Board filed answers requesting enforcement of its order. ' The
Circuit Court, on November 12, 1940, after consideration of briefs and
arguments of counsel for the
'
respective parties handed down its
decision sustaining the Board 's jurisdiction but reversing and set-
ting'aside the Board 's order in its entirety.? In March 1941 , the Su-
preme Court of the United States granted the Board writs of certiorari
to review, the decision of the Circuit Courts On December - 22,
1941 , the Supreme Court having considered the briefs and having
'heard arguments of counsel for the respective parties, handed down
its decision remanding the cause to the Circuit Court ' of Appeals
with directions to the Circuit Court to remand the cause to the Board
for a redetermination of the issues in the light of the Supreme
-Court's opinion .9 On March 9 , 1942, the Court of Appeals formally
remanded the case to the Board pursuant to the mandate of the Su=
preme Court . - On April 3, 1942, the Board entered an order vacating
and setting aside its Decision and Order dated February 27; 1940,
and directing that Proposed Findings of Fact , Proposed Conclusions
of Law, and a Proposed Order be issued.
8 Mann , Elliott , Staunton , and Harrell.
115 F (2d) 414.
8312U S 677.
a The Supreme Court, taking the view that the Board ' s ultimate conclusion that the re-
spondent had violated Section 8 ( 1) and ( 2) of the Act rested largely upon a bulletin
posted on April 26 , 1937, and speeches delivered to representatives of the employees on
May 24, 1937 , the adequacy of which standing alone the Court regarded as doubtful, held
that whether the respondent 's "whole course of conduct," of which the bulletin and the
speeches were a part, warranted findings of interference and domination was "for the
Board to determine upon the evidence." (314 U. S. 469, 479.)
VIRGINIA ELECTRIC AND POWER COMPANY 409
On July 6, 1942, the Board issued said Proposed Findings of Fact,
Proposed Conclusions of Law, and Proposed Order, copies of which
were served on all parties, finding that the respondent had engaged
in unfair labor practices affecting commerce within the meaning of
Section 8 (1), (2), and (3) and Section 2 (6) and (7) of the Act,
and directing that the respondent cease and desist from its unfair
labor practices, -withdraw all recognition from and disestablish the
I. O. E., reimburse employees in the amount of dues deducted from
their wages on behalf of the I. O. E., and offer reinstatement with
back pay to Everard M. Mann, A. F. Staunton, and T. N. Harrell,.
Jr. Exceptions to the Proposed Findings of Fact, Proposed Conclu-
sions of Law, and Proposed Order and briefs in support thereof
were filed by the respondent and the I. O. E.
Pursuant to notice and at, the request of the respondent and the
I. O. E., a hearing was held before the Board at Washington, D. C.,
on August 25, 1942,• for the purpose of oral argument. The respond-
ent, the I. O. E. and the I. B. E. W. were represented by counsel and
participated in the argument. The Board has considered the ex-
ceptions to the Proposed Findings, Proposed Conclusions of Law,
and Proposed Order and the briefs in support thereof and, insofar as
the exceptions are inconsistent with the findings, conclusions, and
order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
4 1. THE BUSINESS OF THE RESPONDENT
The respondent, Virginia Electric and Power Company, was in-
corporated in Virginia on June 29, f909, as the Virginia Railway
and Power Company. On October 27, 1925, it adopted its present
name. The respondent is engaged, among other things, in the business ^
of generating, distributing, and selling electrical energy in eastern
Virginia and northeastern North Carolina. The . area served com-
prises approximately 10,000 square miles, has an estimated popula-
tion of 767,000 and includes the cities`of Richmond, Norfolk, Ports-
mouth, Petersburg, Hopewell, Suffolk, and South Norfolk, Virginia,
and the, cities of Roanoke Rapids, Weldon, Williamston„ and
Plymouth, North Carolina. In addition, the respondent furnishes
for resale electrical energy to 9 municipal systems serving a popula-
tion of 26,000. The respondent is also engaged in the business of
supplying illuminating gas to consumers situated in Norfolk, South
Norfolk, and Norfolk County, Virginia. The respondent likewise
operates street railway and bus lines in Richmond and Norfolk, bus
lines in 'Portsmouth and Petersburg, and interurban bus lines be-
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tween Richmond and Petersburg. Its principal office is located in
Richmond, Virginia, and it maintains 14 branch offices in various
cities and towns in Virginia and North Carolina. As of December
31, 1937, respondent had a total of 3,437 employees."
The respondent maintains 4 hydro-electric generating plants and
3 steam generating plants with a total capacity of approximately
173,000 kilowatt hours, 5 of which are in Virginia and 2 in North,Caro-
lina, and operates approximately 250 substations. It has transmission
line interconnections with the Virginia Public Service Company at
Occoquan, Virginia, and at Roanoke Rapids, North Carolina, and 2
transmission line interconnections with the Carolina Power and Light
Company in North Carolina. During the year 1937 the respondent
purchased from the above-named companies 7.1 percent of its own
total electric output. During 1937 the electric energy generated and
purchased by the respondent aggregated 664,859,694 kilowatt hours;
of which the respondent transmitted about 52,000,000 kilowatt hours
from Virginia' to North Carolina and approximately 39,000,000
kilowatt hours from North Carolina to Virginia.. Among the con-
sumers of the power generated and purchased by the respondent are
railroads, telegraph companies, telephone companies, newspapers,
radio stations, shipyards, airports, and- agencies furnishing aid to
navigation.
' In addition to operating a street railway and bus system in Rich-
mond and Norfolk, bus service in Portsmouth and Petersburg, and
interurban bus service between Richmond and Petersburg, the re-
spondent maintains in Virginia shops, garages, and car barns for the
storing, overhauling, and repairing of its-street cars and motor busses.
The transportation system of the respondent as of December 31, 1937,
included approximately 133 miles of equivalent single' track, 251
passenger street cars, and 294 busses. In 1937, the respondent's trans-
portation department used 31,253,514 kilowatt hours of power
generated by the electrical department.
As of December 31, 1937,' the respondent maintained in Norfolk,
Virginia, 2 gas generating units of approximately 'equal' size with
a total rated generator capacity of 81/2 million cubic feet per day, a
bolder capacity of 5,273,000 cubic feet, and 332 miles of high and low
pressure gas mains. During 1937 approximately 1,253,000 kilowatt
hours of power generated by the electrical department were used in,
the manufacture of gas.
For the operation of its electrical, transportation, and gas systems
in 1937, the respondent purchased considerable amounts of materials
10 In its original brief to the Board the respondent asserted that on April 30, 1938 , it had,
1,169 employees in the electric department , 112 in the gas department , and 1 ,259 in the
transportation department. .
VIRGINIA ELECTRIC AND POWER COMPANY 411
-coming from points outside the Commonwealth of- Virginia. For
the generation of electrical energy 295,207 tons of coal were used,
more than 50 percent of which were purchased in West Virginia.
About 2,587,000 gallons of gasoline, consumed by the busses of the
respondent, were purchased in the Commonwealth of Virginia but
originated in sources outside the Commonwealth. The busses, street
cars, and tires used by the respondent were also bought in States other
than Virginia. To produce the gas distributed by it, the respondent.
consumed 10,821 tons of coal, most of which were purchased in West
Virginia; 3,800 tons of coke, which were shipped to the respondent
through West Virginia although purchased in Virginia; and 3,290,000
gallons of oil purchased in Virginia but originating in States other
than Virginia.
The respondent concedes that the employees engaged in the trans-
mission process of the electrical department are engaged in interstate
commerce, but argues that all its other employees are not subject to
the Board's jurisdiction. We find,. however, not only (1) that the
respondent. maintains facilities in North- Carolina and in Virginia.
for the generation and distribution of electrical'eriergy; (2) that large
amounts of electrical energy generated by the respondent are trans-
mitted across State lines; (3) that respondent purchases electrical
energy which is transmitted to it across State lines;` (4) and, that,
instrumentalities of interstate commerce, such as railroads, telephone,
and telegraph companies, use electrical energy supplied by the re-
spondent; but also (5) that the respondent receives large. quantities
of coal, coke, aiid. other commodities in 'interstate commerce, for its
transportation'and gas departments; and (6) that the respondent is
an integrated enterprise with a centralized management and. general
office force and with some.sharing of common facilities by the trans-
portation and electrical departments.' We conclude. that a cessation
of the respondent's business resulting from a ,labor * dispute, between
the respondent and its employees (a) would affect the flow of large
quantities of - electrical energy and other commodities received and
distributed by the respondent in, interstate commerce and, (b) would
tend to burden and obstruct the operation of various instrumentalities
of interstate transportation and communication: . - ,
II. THE ORGANIZATIONS INVOLVED
-
Transport Workers Union of America is a labor organization affili-
ated with the Committee for Industrial Organizations,ll admitting to
its membership employees engaged in the transportation operations of
the respondent. - ' _
ll Now the Congress of Industrial Organizations
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Amalgamated Association of Street, Electrical Railway, and Motor
Coach Employees of America is a labor organization affiliated with
the American Federation of Labor. It admits to membership all the'
employees engaged in the respondent's electrical railway and bus
system, excluding supervisory, office, and clerical employees.
International Brotherhood of Electrical Workers is a labor organiza-
tion affiliated with the American Federation of Labor. It admits to
membership all types of electrical workers of the respondent.
The Independent Organization of Employees of Virginia Electric
and Power Company, an unaffiliated labor organization, admits to
membership all employees of the respondent excluding supervisory,
part-time, and confidential employees.
. III. THE UNFAIR LABOR PRACTICES
A. Background
The respondent in the past has been opposed to the organization of
its employees; from 1922, when the Norfolk, Richmond, Portsmouth,
and Petersburg street car operators unsuccessfully went out on strike
in protest against the respondent's refusal to renew a preexisting
contract until-1937, the respondent's, employees remained totally un-
organized. The respondent's attitude towards the organization of its
employees was epitomized in the statement of Jack G. Holtzclaw, the
respondent's president; made in the course of a message to employees
delivered shortly after the enactment of the National Industrial Re-
covery Act in 1933, that "It would be very foolish and entirely incon-
sistent with the past policy of our Company's operations if I did not
state definitely to our employees that it is our belief that the organiza-
tion,of our employees for any purpose in this Company for their pro-
tection or collective bargaining or whatnot is entirely unnecessary."
Although Holtzclaw quoted from Donald Richberg and Hugh Johnson
on the subject of employees' rights to organize under the N. I. R. A.,
the message as a whole makes it clear that the respondent strongly
disapproved of the employees exercising those rights, and we so find.
B. The I. O. E.; interference, restraint, and coercion
At the time of the, passage of the Act in July 1935 the respondent
was using.the full-time services of one Walters, an undercover opera-
tive furnished by the Railway Audit and Inspection Company; 12 the
respondent continued to use his service until Walters' death in May-
'2 On the industrial espionage and strikebreaking activities of the Railway Audit and
Inspection Company see Sen. Rep. No. 46, Part 3 , 75th Cong., 2nd Sess , pp 18 , 88 ; Sen. Rep.
No 6, 76th Cong., 1st Sess , pp 82, 183-195.
VIRGINIA ELECTRIC, AND POWER COMPANY 413
1937.' One of the purposes for which Walters was employed was to
.report on labor activities among the employees at Norfolk. Walters
reported to E. L. Bishop, the superintendent of the Norfolk tranporta-
tion department. ' Following the typical technique of the labor spy,
Walters posed as an energetic advocate of unionism, on • one occasion
openly supporting a• strike at a Norfolk garment factory;' addressing
the strikers over a loudspeaker system. He was accepted by union
officials and members alike as a sympathizer with organized labor when
he attended meetings of the Norfolk Central Labor Union. '
Superintendent Bishop, to whom Walters reported, himself sought
to uncover organizing activities among the employees. In 1936, after
being informed that a group of his employees were considering organ-
izing, he admittedly summoned several employees to his office and
questioned them about it. '
In March 1937 an A. F. of L. organizer met the chief engineer of
the Reeves Avenue, Norfolk, power plant and advised him that the
A. F. of L. intended to organize the men .13 An A. F. of L. organizer
began distributing circulars among the Richmond employees in March
or April 1937. On April 12, 1937, the Supreme Court of the United
States upheld the constitutionality ' of the Act.14 On April 26, 1937;
'the respondent posted the following bulletin throughout its operations,
purporting to advise the employees as to their rights under the Act.
To the Employees 6f the Company: '
Asa result of recent national labor organization activities and
the interpretation of the Wagner Labor Act by the Supreme Court,
employees of companies such as ours may be approached in the.
near future by representatives of one or more such labor organiza
tions to solicit their membership. Such campaigns are now being
pressed in various industries and in different parts of the country
and strikes and unrest have developed in many localities. For
-the last fifteen years this Company and its employees have en-
joyed a happy relationship of mutual confidence and understand-
ing with each other, and during this period there has not been
any labor organization among our employees in any department,
so far as the management is aware. Under these circumstances,
we feel that our employees are entitled to'know certain facts and
have a statement as to the Company's attitude with reference to
this matter.
13 Upon being advised of this a few hours later President Holtzclaw , immediately issued
orders that the organizer be instructed that lie could do no organizing during working
hours or on company property
14 N. L. R . B. v. Jones & Laughlin Steel Corp., 301 U. S. 1, rev'g 83 F. (2d) 998 (C. C. A.
5), and aff'g Matter of Jones cC Laughlin Steel Corporation and Amalgamated Association
of Iron, Steel d Tin Workers of North America , Beaver Valley Lodge No. 200 , 1 N L R B.
503, and companion cases
414 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD
The Company recognizes the right of every employee to join
any union that-he may wish to join, and such membership will
not affect his position with the Company. On the other hand,
we feel that it should be made equally clear to each employee that
it is not at all necessary for him to join any labor organization,
despite anything he may be told to the contrary., Certainly, there
is no law which requires pr is intended to compel you to pay dues
to, or to join any organization.
This Company has always dealt with its employees in full recog-
nition of the right of every individual employee, or group of em-
ployees, to deal directly with the Company with respect to matters
affecting their interests. If any of you, individually or as a group,
at any time, have any- matter which you wish to discuss with us,
any officer or department head will be glad, as they always have
been, to meet with you and discuss them frankly and,fully. It is
our earnest desire to straighten out in a friendly manner, as we,
have done in the past, whatever questions you may have in mind.
It is reasonable to believe that our interests are mutual and can
best be promoted through confidence and cooperation.
( Signed) J. G. HOLTZCLAW,
President.
Shortly after the respondent posted this bulletin, after observing
the transportation employees engaged in group discussions, Super-
intendent " Bishop,, as in 1936 when he suspected the employees of at-
tempting to organize, sought out one of them, Anthony R. Ruett, and
,queried him ,as to what the men were discussing. Ruett replied, so
he testified, that the men were talking about desiring wage increases,
about other firms giving increases, and their right under the Act to
organize unions .and ask for wage increases. Bishop inquired, ac-
cording to Ruett, -whether the men were talking about joining the
C. I. O. or the A. F. of L. and warned : "You don't want no C. I. O.
or any other organization to come in here and tell you what to do,
because the company, is not going to' recognize them and, in fact, they
.have money put away for the purpose of fighting the unions." Bishop
Added that "unions were no good and that they were nothing but trou-
ble-makers',' and suggested, Ruett testified, that "the best thing for the
men to do was to get,amongst themselvesancl form their own organiza-
tion and present their claims." Bishop admitted having suggested to
,Ruett that he call a meeting for the purpose of selecting a committee to
present their demands to the respondent, but denied having suggested
that they form an organization. Bishop also denied at any time having
asserted''that the 'respondent had' fiiuds'with s hich"to, fight ihiions.
The ,remainder of Ruett's-testimony referred to above was undenied.
VIRGINIA ELECTRIC AND POWER COMPANY 415
We are not convinced by Bishop's partial denial and find that he made
the statements attributed to him by Ruett.
Pursuant to Bishop's suggestion, Ruett scheduled two meetings of
the car and bus operators on May 11, 1937, one in the morning and
one in the afternoon. Robert E. Elliott, Jr., a car operator, who,,
prior to these meetings had drafted a petition requesting improved
wages, hours', and working conditions, was selected to act as chairman
of the meetings. Bishop spoke briefly to the employees at the morning
meeting and left. Elliott presented his petition to the employees at
both meetings, and virtually all of them signed it. At the morning
meeting, which was attended by Superintendent Bishop's son, not an
employee of the respondent, and Dispatcher Fields, Everard M. Mann,
a car operator, spoke out vigorously against the formation of an in-
.dependent union and urged affiliation with a national union, prefer-
ably the C. I. 0. A number of the men agreed with him, and one of
them immediately, after the meeting sought out the C. I. 0. organizer,
who was currently carrying on an organizing campaign in the Nor-
folk area, and signed a C. I. 0. card.
After a large majority of the transportation employees at Norfolk
had signed the petition, it was presented to Superintendent Bishop
by a committee of six elected at the first meeting. About this same
time several other groups of employees presented to their supervisors
petitions for increased wages or better hours or working conditions,
President Holtzclaw concluded that to deal with these and other similar
groups would lead to "chaotic" conditions, and after consulting with
the supervisory staff it was decided that the respondent's position in
this matter should be communicated to the employees. The respondent
decided that it would have the employees in every department select
representatives for the purpose of attending meetings at which high
officials of the respondent' would deliver a message, which the repre-
sentatives were to carry back to their constituents. Pursuant to this
decision, supervisory officials throughout the respondent's system con-
voked meetings of their subordinates on company time and property
and instructed them to select representatives to hear the respondent's
message. The supervisory officials carefully absented themselves-from
the meetings, pursuant to instructions from President Holtzclaw. The
employees complied with these instructions and the representatives
selected attended meetings in the respondent's office buildings at Rich-
mond and 'Norfolk on May 24. At Richmond, President Holtzclaw,
and at Norfolk, R. J. Throckmorton, vice president in charge of the
respondent's Norfolk operations, deliiered. the following prepared
address :
A substantial number of its employees representing various
departments and various occupations have approached the Com-
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pany with the request that the Company consider with them
the matter of their working • conditions and wages. In other
words, they have requested collective bargaining. The Company's
position with respect to this was recently stated in a posted
bulletin.
In a Company such as ours, if an individual operator, for
example, should ask for himself better working conditions or
wages, this Company could not comply with his request without
also making the same concessions to other similar operators. In
such a case the operator who appealed individually would, as a
practical matter, be bargaining collectively for all of his group,
which is not the logical procedure. •
This Company is willing to consider the' requests mentioned
above but feels that, in fairness to all of its employees and to itself,
it should at the same time consider other groups who have not
yet come to it. ' If the approaching negotiations are to be intel-
ligent and fair to all properly concerned, they should be conducted
in an orderly way, and all interested groups should be represented
In -these' discussions by representatives of their own choosing, as
provided in the Wagner National Labor Relations Act, which
provides as follows
SECTION 7. Employees shall have 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 concerted activities, for the purpose of collective
bargaining or other mutual aid or protection.
The Wagner Act applies only to employees whose work is in
or directly affects interstate commerce and to companies engaged
in interstate' commerce . Counsel for this Company advise us
that in their opinion the provisions of the-Act do not apply to
local transportation employees, to gas employees in Norfolk, or,
to certain strictly local employees of the light and power depart-
ment. • In spite of this, the Company wants to make it perfectly
clear that its policy is' one of willingness to bargain with its em-
ployees in any manner satisfactory to the majority of its employees
and that no employee will be discriminated against because of
any labor affiliations he desires to make.
The petitions and, representations already received indicate a
desire on the part of these employees at least to do their own bar-
gaining, and we are taking this means of letting you know our
willingness to proceed with such bargaining in an orderly mariner.
In order to progress, it would seem that the first step necessary to
be taken by you is the formation of a bargaining agency and the
VIRGINIA ELECT-RIC AND ' POWER , COMPANY 417
selection of authorized representatives to conduct this bargaining
in such an orderly manner.
The Wagner Labor Act prohibits a company from "dominating
or interfering with the formation or administration of any labor
organization or .contributing financial or other support to it."
In view of your requests to bargain directly with the Company
and, in view of your right to self-organization as provided in the
law, it will facilitate negotiations if you will proceed to set up
your organization, select your own officers and adviser, adopt your
own bylaws and rules, and select your representatives to meet
with the company officials-whenever you desire.
Holtzclaw- added, at the conclusion of the quoted speech, that any
wage increase granted by the respondent would become effective as of
June 1, 1937; Throckmorton did not. As to all other material incidents
the two meetings were substantially identical. Employees asking
whether they had to join a labor organization and what kind of organ-
ization they should form were told that they need join none and
were refused advice as to the type of organization they should adopt.
As the respondent's officials left these meetings, in accordance with
arrangements made beforehand, they announced that' the representa-
tives might remain for further discussion of the matters broached.
At both meetings, a substantial number of the 'representatives re-
mained, and discussed the benefits to 'be derived from organizing.
'The Richmond representatives, after electing a 'temporary chairman
."to push this thing into an organization," decided to inform their
constituents as to what had occurred at the meeting and to report
back their reactions at a meeting of the representatives to be held
on June 1. The Norfolk representatives decided to ascertain the
reaction of their constituents to the message and to, bring written
authorizations from them to a meeting on June 1.
Pursuant to these decisions, during the following week meetings of
employees were held in almost every department. The respondent's
supervisors actively cooperated. Superintendent. of Distribution
Crafton arranged to have the Norfolk linemen brought in without
working overtime so that they could hear their representative report
to his department. Superintendent Davis, of the Reeves Avenue plant
in Norfolk, gave permission for the use of the company auditorium
on May 27. Superintendent of Installation Walke in Richmond per-
mitted the use of the Service Building for meetings of the line depart-
ment and the engineering group during working hours, and held the
linemen in the office so that they could attend. At each meeting, after
the respondent's- message had been reported to the men, they im-
mediately voted to form an unaffiliated union and elected representa-
tives for that purpose, the same representatives for the most part that
487498-42-vol 44-27
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they had previously selected at the respondent's request to hear the
May 24 message.
The June, 1 meetings were held as scheduled , the representatives
from theR ichmond area meeting in the auditorium of the respondent's
Service Building and the representatives from the Norfolk area meet-
ing in the respondent 's general office building at Norfolk . The Rich-
mond representatives constituted, themselves a steering committee to
form an organization without "outside aid or interference" and desig-
nated a committee to consult with a Norfolk committee on selection
of a lawyer - to draw up a constitution and plan of organization. On
June 3 committees . from both Richmond and Norfolk met at the
respondent 's office building at Petersburg and appointed representa-
tives to employ an attorney to draft a . constitution and bylaws for a
'system-wide organization . Several days later, W. Earle White of
Petersburg was retained for this purpose. On June 7 the Norfolk
representatives again met in the respondent 's general office building
at Norfolk , and, like the Richmond representatives constituted them-
selves a steering committee for the formation of an unaffiliated system-
wide organization.
On June 9 the Richmond steering committee met in the respond-
discussed the proposedent's service building at Richmond 15 and -
-constitution and bylaws prepared by Attorney White. The Norfolk
-steering committee met on June 11 in the respondent 's general office
building and again on June 14 in the auditorium of the respondent's
,Reeves Avenue plant to consider the proposed constitution and bylaws.
On June 14 the Richmond steering committee requested the re-
spondent to furnish by noon of the next day a list by departments
and subdivisions thereof of the names of all the " worker personnel" of
the respondent below the rank of foreman or supervisor , or in the
alternative , to furnish a detailed statement as to the numbers of non-
supervisory employees in all the respondent 's departments and sub-
divisions thereof. The respondent , the same day it received the
,request, furnished the latter statement and promised to submit the
list of names requested as soon as it could be prepared.
On June 15 the Norfolk and Richmond representatives met in the
American Legion Hall at Richmond and formally adopted the con-
stitution and bylaws of the I. O. E. The constitution provides for
4 divisional committees at Norfolk : the transportation, electric, gas,
and accounting , sales, and general office committees ; and 3 divisional
committees at Riclunond : the transportation , electric , and accounting,
.sales, and general office committees . " In the Norfolk division, em-
ployees in 14 voting sections , which correspond roughly to the various
^5 This is stated in the brief submitted to the Board by counsel for the 1 0 E
VIRGINIA ELECTRIC AND POWER COMPANY 41g
-departments operated by respondent in this division , elect representa-
tives to the 4 divisional committees . In the Richmond division em-
ployees , in 13 voting sections elect representatives to the 3 divisional
committees there. The representatives of the 4 divisional committees
at Norfolk constitute the Norfolk interdepartmental committee and
the representatives of the 3 divisional committees at Richmond con-
stitute the Richmond, interdepartmental - committee . The interdepart-
mental, committees elect from their own - number representatives, to
the general committee, the supreme body of the I. O. E. The con-
stitution and bylaws make no provision for the holding of meetings
of members of the various voting sections."
- On June 17 application cards for membership in the I. O. E., were
distributed throughout the entire system ; a number of them. were
signed on the respondent 's premises during working hours . Solicita-
tion of memberships in outside organizations also occurred on the
respondent 's premises during this period. - Within 2 weeks a majority
of the respondent 's employees applied 'for membership in the I. O. E_
On June 22 a general meeting of the Norfolk employees was con-
vened for the purpose of explaining the constitution and bylaws of
the I . O. E. Thereafter, elections were held off the respondent's
premises : on July 2, to nominate representatives of the various voting
sections of the I. O. E., and on July 12, to elect the representatives:
On July 13 the Norfolk steering committee announced the results of
the elections , and then dissolved . The voting section ' representatives
then voted for officers to the interdepartmental committees and a
delegate -at-large to the general , committee . A meeting was held in
Richmond on July 16 at which the Richmond steering committee was
dissolved and the officers of the interdepartmental committee and
representatives to the general committee were elected. '
On July 17 and 18,- 1937 , the: various interdepartmental representa-
tives , and general committeemen held a convention at Ocean View;
Virginia. After discussing the desires of their constituents , the vari-
ous representatives , with the assistance of Attorney White, drafted a
proposed contract to be submitted to the respondent , embodying de-
mands for a closed shop,l' check-off of I. O. E.. dues, and substantial
wage increases . On July 19 the 1. 0 . E.,notified the respondent that it
represented more than 50 percent of the respondent 's employees, sub-
mitted the proposed contract , and requested that a date be set for its
discussion . On July 21 , the respondent set July 30 as the date for the
negotiations and requested that a certificate as to the organization's
16 Subsequently 'the bylaws' were amended by the General Committee to provide for annual
meetings of the members of the various voting sections
' 17 That is, the 1 0 E asked that all present and future employees be required to join
the organization after a specified period.
420 DECISIONS- OF .NATIONAL' LABOR. RELATIONS. BOARD
membership' and right to represent the employees be furnished prior
to the conference. This-was done.
The bargaining conference opened on the morning of July 30 with a
discussion of the general provisions, that is, the recognition, the closed-
shop, the check-off, and the grievance procedure provisions.. The recog-
nition clause was readily agreed to. The respondent in the recognition
clause agreed to permit the 1. 0. E. to erect bulletin boards on company
property. The respondent offered no objection to the check-off pro=
vision, providing for the deduction of I. O.. E. dues from members'
wages upon written orders signed by the members, but added the pro-
Viso that such orders might be revoked at any time."" The respondent
at once agreed to the grievance procedure provisions with minor varia-
tions. The closed-shop provision was discussed for '2 hours at the open-
ing session; further discussion was postponed while the representa-
tives of various departments split up and discussed with departmental
officials of the respondent matters pertaining to their departments.
Discussion of the closed-shop issue was not resumed until the final
session of, the conference when, after 2 hours further discussion, the
closed-shop provision was agreed upon 19 and wage increases, costing
the respondent $600,000 annually, were granted. The wage increase
was made retroactive to June 1, 1937, as President Holtzclaw, on May
24, had promised. After ratification by the interdepartmental com-
mittees, the contract was formally executed on August 5, 1937.
On August 20;1937, the respondent paid the I. O. E. $3,784.50 as dues,
pursuant to the check-off provision in the contract, although it had not
yet deducted that entire amount from the wages of the employees. On
October 28 the respondent posted a notice throughout its entire system,
stating that the 90-day period provided for in the contract would expire
on November 4, 1937, and that it was necessary for all its employees
to join the I. O. E, by that date. On November 4 the respondent dis-
charged two employees who refused to join the I. O. E.20
The respondent's attitude towards nationally affiliated organizations
during the crucial organizing period of the I. O. E. contrasts sharply
-with its highly cooperative attitude towards, the I. O. E. Everard
M. Mann, who had openly espoused affiliation with the C. I. O. at the
meeting of the Norfolk transportation employees held on May 11 at
the behest of Superintendent Bishop, was summarily and unlawfully
is In view of the closed-shop provision to which the respondent agreed on the following
`day and the provision in the I O. E's constitution and bylaws requiring all members to
,authorize the deduction of dues, the proviso added by the respondent is totally without
effect. -
ii Under the closed-shop provision All present employees were given 90 days in which to
loin the I 0 E future employees were required to join within 90 days from the date of
their hiiing At the instance of,the respondent the proviso was added that nothing in the
contract should prevent employees from joining or remaining members of any other labor
organization
20 See Section D, tnrra.
'_'"...VIRGINIA ' EiLECPRIC AND POWER COMPANY.. 42I'
diseharged 'on the- eve of the crucial June 1 meetings at Norfolk and
Richmond .21 Three employees testified ' that William Edwards, a•
supervisor in the transportation department under Superintendent.
Bishop, stood across the street from places where C. I. 0. meetings
were being held observing those who entered. Jesse Smith , an em,
ployee in the Norfolk transportation division , testified that Edwards
warned him that the employees would keep "messing with the C. I. O:",
until they lost their jobs. Raymond Hopkins, another Norfolk trans-
portation employee , testified that Edwards came to him the day after
he signed a C. I. 0. card and warned him that he "wouldn't last long"
if he did not "drop',' the C . I. 0. immediately . Hopkins and Robert
E. Elliott both testified that early in June, Edwards , while in uniform,
accosted them in a restaurant near the car barn and profanely accused
them of "causing all of the trouble around here .'? When. Hopkins
and Elliott left the restaurant in an effort to avoid an argument, Ed-
wards followed them into a restaurant across the street and continued
to harass them, asserting , "They are trying to put me and Mr. Bishop
in the penitentiary but I am going to show them I' am going to put
'them in,the penitentiary ." This testimony is fully confirmed by the
testimony of a Norfolk city policeman who witnessed the incident:
Edwards denied engaging in the conduct attributed to him by these
employees , but we do not credit the denial, and accordingly find that
Edwards engaged in surveillance and the other intimidatory conduct
attributed to him. '
Superintendent Bishop, too , engaged in various acts of unlawful
interference . Preliminarily , it should be noted that the group of
Norfolk transportation employees which had submitted to him .the
petition requesting a substantial increase in wages and certain im=
provements in hours and working conditions , held aloof from the
movement , to form an independent company-wide organization:
Various members of this group, testified to conversations with Superin-
tendent Bishop after the movement to organize an unaffiliated system-'
wide organization had started . Three employees testified to the ef
feet that Bishop urged that the group should "have something to do
with the system -wide organization ," that they should select their own
lawyer to assist them in drafting a constitution and bylaws , and that
they could do much better with such an organization than with an
outside organization . Bishop denied having made any such sugges-
tion to two of the three employees , but upon the entire record we find
that Bishop made the suggestions and statements attributed to him
by'the three employees. '
Robert E. Elliott, the leader of this group which was'composed of
a majority of the Norfolk transportation employees , went to Richmond
I
a See Section D, toff a
422 DECISIONS OF NATIONAL ' LABOR RELATIONS BOARD
on June 14 and sought to arrange a bargaining conference with Presi-
dent Holtzclaw. Holtzclaw refused to agree to such a conference,
admittedly asserting that to deal with so small a group as the Norfolk
transportation employees "would mean a chaotic condition in negotia-
tions." Elliott testified that on his return from Richmond on June 15
Superintendent Bishop sought him out at his home and informed
him that:
150 men have come to me in the last two or three days and told
'inc that they Avant to, hook up with this system-wide organiza-
tion. * * *
Why don't you forget this transportation organization that is
trying to be formed around here, and see what the men want
to do. * *
Now, look, if you will swing the men into the company union
or into this system-wide, union, I am going to have a good job
come open in a few months. *' * * If you will play ball with
the company, I will see that you get that job.
Elliott further testified that several days later Bishop summoned him-
to his [Bishop's] home and talked with him at length concerning the
respondent's activities. During the course of the conversation Bishop
asserted, according to Elliott, that the "Company had an enormous
surplus of money * * * and, that they could fight organizations;
and that they would fight organizations * * * This company
usually gets what it wants." Elliott's testimony continued that after
further discussion Bishop handed him-a booklet describing the com-
pany-union plan in effect at the Colorado Fuel and Iron Company
with the suggestion that he study it thoroughly, and told him that if
an independent organization was formed.he would-see that Elliott, «as
made chairman of it.
While deDying most of the foregoing testimony Bishop did not make
any effort to explain what he had said on the various occasions on
which he admittedly had conversations with Elliott; nor did he deny
giving Elliott the booklet on the company-union plan in effect at the
Colorado Fuel and Iron Company. - We find Elliott's complete and
detailed statements as to how Bishop sought him out and as to what
Bishop said to him on each of these occasions more persuasive than
Bishop's bare denials and find, that Bishop made the statements and
engaged in the conduct attributed to him by Elliott.
C. Conclusions with respect to the respondent's interference, restraint,
and coercion and domination of the I. 0. E.
Upon the foregoing facts, we are of the opinion and find that the
respondent has engaged in a course of conduct calculated to restrain
("' -VIRGINIA ELECTRIC 'AND POWER COMPANY ': 423-
and 'discourage its employees from self-organization in:._nationally,
affiliated unions and to divert and canalize their organizational -efforts
to the establishment of a company-wide unaffiliated labor organization;
that in.its totality, the respondent's conduct has been coercive Of its
employees in the exercise of their right to self-organization; with the
result that when they formed the I. 0. E. they were not as' free as
the statute requires; that the I. 0. E. is the fruit of the respondent's
illegal interference with, and restraint and coercion of its employees;
and that the respondent has dominated the formation and adminis-
tration of the I. 0. E., and has contributed financial and other support-
to it.22
As early,as 1933, in a message purporting to enlighten the employees
as to their right to -organize, the respondent' indicated its strong dis-
approval of their exercise of that right. The passage of the Act,
far from modifying the respondent's hostility toward independent
employees' self-organization, saw the continued employment by the
respondent of an undercover operative to report on self-organiza-
tional efforts'23 and attempts- on the.•part of Superintendent Bishop,
himself, to discover and thwart incipient union movements by' ques-
tioning employees concerning such matters."
When employees' self-organization was given impetus by the deci-
sions establishing the constitutionality of the Act, President Holtz-
claw once more resorted to the device of "advising" the employees as
to their "rights," in order to condition them against the free exercise
thereof. In the posted bulletin of April 26, Holtzclaw paid lip-
service to the right of self-organization, at the same time stressing
the negative aspects of the Act, pointing out that "it is not at all neces-
sary . . . to join any labor organization" and that "there is no law
which requires . . . you to pay dues to or to join any organization" in-
veighing against the choice of a national union by contrasting the
"strikes and unrest" which were said to accompany the organizing
chives of national unions with the "happy relationship" which was al-
leged to have attended the 15 years' absence of national unions from
among the employees, and concluding with an appeal to, the employees
22 The respondent contends that the bulletin of Api il 26, 1937, and the messages of May
24, 1037, ale unobjectionable expressions of opinion concerning matters of current interest
to the employees, free from any element of inteifeience, restraint, or coercion As more
fully discussed,below, however, .these .messages may not be viewed separately and apart
from the setting in which they occurred and without reference to then impact upon the
employees because of the attendant err cumstances Taking into consideration these facto, s,
these messages, whatever their significance when viewed standing alone, plainly cannot be
regarded as mere expiessions of the employer's opinion
21 See N L R B v Link-Belt Oo , 311 U S 584, 598 enf•g Hatter of Link Belt Company
and Steel Workers Oi'ganiz-nq Committee, 12 N L R B 854 , N L R B v Fruehauf
Trailer Co , 301 U S 49. 54 enf'g Matter of Fruehauf Trades Company and United Auto-
mobile Workers Federal Labor Union No 19315, 1 N I, R B 68
21 See H J Heinz Co v N L R B, 311 U S 514, 518, enf,g Matter of H J Heinz Com-
panif and Canning and Pickle Woi het s, Local l/nion No 325, 10 N L R B 963
0
424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"individually or as a group" "to deal directly with the Company" as in,
the past," 25 rather than through representatives, as contemplated, by
the Act.
The employees followed the course charted for them by the respond
ent, several groups submitting petitions requesting changes in.existing
wages, hours, and working conditions. The respondent abruptly
decided that it had set the employees upon the wrong course, that
dealing with these groups which had submitted petitions in response
to its suggestions, led to "chaotic conditions." Accordingly,, the,
respondent plotted a new course for the employees and took every. pre'
caution to see that the employees did not waver therefrom. The
objective now was company-wide bargaining rather than the indi-
vidual bargaining or group bargaining which the respondent had
urged in its April 26 bulletin. To attain this objective, the respondent
summoned all its employees to meet in groups and, to. select representa-
tives to consider establishment of a plan. of collective bargaining. The
group meetings were called by the respondent without regard to-the,
fact that a majority of the employees had not yet determined the form
of • self-organization, if any, that they desired. Thereafter, the
respondent called meetings. of the representatives to be held at Norfolk
and Richmond. The employee representatives attended pursuant to
the call from the respondent and not as a result of, any spontaneous
desire of the employees for self-organization on a company-wide basis.,
At these two simultaneous conferences the respondent urged not only
the formation of a "a bargaining agency," but also the kind of bar-
gaining agency which the employees were to form, namely; an organi-:
zation, confined to employees of the Company. They were not to join
or affiliate with any "outside" organization. This is clear from' the
respondent's insistence on an organization of their own, with their
own officers and adviser and their own bylaws and rules. By'phshing
forward its plan the respondent prevented selection of representatives
who were not employees of the respondent, although the Act spe-
cifically provides that employees must be free to choose such repre-
sentatives. Moreover, the messages made it clear that the employees
were limited to the formation of a company-wide organization.
Shortly following the posting of the April 26 bulletin and at the
behest of Superintendent Bishop, a large majority of the Norfolk
transportation employees had organized into a group for collective
bargaining.2G Now, however, the messages stressed that the respond-'
25 See N L R I3 v Elkland Leather Co, 114 F. (2d) 221 , 223-224 (C. C. A. 3), cert.
denied 311 U S 705, enf'g Matter of Elblaad Leather Co , Inc. and National Leather Work-
ers Association, Local Aso 37, 8 N L R B 519, and decisions cited in footnote 36, page 20,
below
20 Superintendent Bishop, as noted above , sought to guide this group into channels he
deemed desirable ; be suggested that the men "foam then own oigamzation ,- and waived
VIRGINIA 'ELECTRIC AND "POWER COMPANY - 425
ent could not deal with this and the other groups of employees which
had submitted petitions; to do so`was "not the logical procedure."
To bargain "in an" orderly manner" it was essential that the group
bargained with should consist of all "similar, operators" ; in other
words, "all interested groups should be represented in these discus-
sions," as the messages specifically stated. Thus the respondent closed
the door to voluntary self-organization and laid down the r`equire'
ment that any employee organization must, be on a company-wide
basis.27 In short, the respondent imposed its own preconceived pattern
^of organization upon the employees. President Holtzclaw's conclud-,
ing promise in the message, that any wage increase granted would be
made retroactive, was nicely calculated to spur the representatives
jealously to carry out the respondent's proposal .28 So too, by with-
drawing from the meeting place and suggesting that the employee
representatives remain for further discussion, the respondent's officials
provided a medium ideally suited to the incubation of their plan.
In such a setting, the respondent's bulletins and speeches were not
mere expressions of opinion but constituted an integral part of the
respondent's course of conduct designed to cause its employees to
abandon their right to self-organization and to submit to the will of
the respondent.
As a result, when the employee representatives reported the respond-'
ent's message, including its instruction to form their "own" organiza-
tion, to the men in the various departments'29 the decision to form a
company-wide unaffiliated organization quickly followed. Thereupon,
the employee representatives, commissioned to bring the projected
organization into being, repeatedly met on company time and prop-
erty without objection from the respondent, and, sought and received
from the respondent detailed information as to respondent's opera-
against the C I 0 and other nationally affiliated oiganizations characterizing them ae
"trouble makers" and asserting that the respondent would not recognize them
While the respondent's statements did not in so many words direct the employees to
form a single company-wide organization, we are of the opinion that, from the language of
the statements, the firm rejection of bargaining with smaller groups of employees, and the
company-wide selection of iepresentatives to compose the two audiences, the employees
reasonably inferred that only through a company-wide organization could there be collee,-
tive bn.rgaimng with the respondent and that the respondent expected them to evolve such
n plan
^M H Ritzwoller Co. V. N L R"B, 114 F (2d) 432, 435 (C C A. 7) enf'g Matter of
M H Ritztcoller Company and Cooper's International Union of North America, Local No.
28, 15 N L R B 15 ; N L R B v Viking Purnp Cc , 113 P (2d) 759 760 (C C A 8), cert.
denied 312 U S 680, enf'g Matter of Viking Pomp Company and Steel Workers Organticing
Committee, 13 N. L R B 576, F. TV -Woolworth Co v N L. R B, 121 F (2d),658, 660
(C C. A 2), enf'g Matter of F W Woolworth Company at al and United Wholesale &
Warehouse Employees of New York. Local 65, 25 N-L R B' 1362; N. L R B v American
Potash and Chemical Corp, 98 F. (2d) 488, 494 (C C. A 9), cert denied. 306 U S 643,
enf'g Matter of American Potash & Chemical Corporation and Throw cC Potash Workers
Union No 201st, 3 N L R. B 140. -
29 In some departments, as we have found„the meetings at which the employee representa-
tives reported nete held with the active cooperation of the respondent's supervisory
officials
426 DECISIONS OF 1VATIONAL LABOR -RELATIONS BOARD -
tions -and' personnel. The respondent thus gave material assistance
to the organization of the I. O. E. during its critical formative period.30
At, the same time, the respondent continued its interference with the
activities of adherents of affiliated unions, as is evidenced by the sudden
discharge of Everard N. Mann, an open advocate of C. I. O. affiliation,
on the eve of the important June 1'meeting,31 by the activity of Super-
visor Edwards in maintaining surveillance of C. I. O. meetings and
threatening:C. I. O. supporters with discharge, and by the statement
of Superintendent Bishop, made at a time when he was seeking to
induce employees to cooperate in the plan for an unaffiliated,- com-
pany-wide organization, that the respondent would "fight" affiliated
organizations.
We are of the opinion and find that the success of I. O. E. organizers
in securing the signatures of a majority of the respondent's 3,000 widely
scattered employees within 2 weeks -after.-the new organization was
formally launched, must be attributed in large part to the respondent's
sponsorship of and assistance to the I. O. E. and its persistent and
well-known opposition to national unions. ,
Finally, we have considered the promptness with which the respond-
ent agreed to grant the I. O. E. a check-off of dues and a closed shop.
This constituted a complete reversal of attitude. When it had been
a question of the employees joining a nationally affiliated union, the
respondent, in its April 26 bulletin, expressed opposition toward the
closed shop and the clieck-off. At the hearing, too, the respondent's
officials expressed strong opposition to the' closed shop in principle.
Yet when the I. O. E. sought the check-off, the respondent at once
agreed, and, after a comparatively few hours discussion on July 30 and
31, 1937, acquiesced in the demand of the I. O. E. for a closed shop.
The result was that all of the respondent's employees were forced to
join and pay dues to the I. O. E. or lose their jobs. We are persuaded,
and find, that the respondent agreed to the.closed shop and the check-
off of I. O. E. dues in order to entrench the I. O. E. among the em-
ployees and to insure its financial stability.
We turn to an evaluation of defenses asserted by the respondent.
The respondent contends, with respect to its employment of an under-
cover operative to report on the organization activities of the Norfolk
employees, that reporting on such matteis was not the primary re-
sponsibility of this operative, that he had not in fact submitted any
10 See Western Union Tc7c(p'aph Company v N L R B . 113 F (2d) 992. 995 (C C A 2)
enf'g Matter of Western Union Te7egia0i Coinpa» nit and American Communications Asso-
ciation 17 N L R B 34, cf Kansas City Power and Light Company v N L R 73 . 111 F
(2d) 340, 349 (C 'C A 8). enf'g as modified Matter of Kansas City Power it Lipht C6mpanrt
and International Brotherhood of Elect, cat Wo,kems . 12 N L R B , 1414; N L R B v
Brown Paper Mill Co, 108 F (2d) 867, 870 (C C A 5) cent denied 310 U S 651, enf'g
Matter of Brown Paper Mill Company, Inc, land'- leternat'vonal-IBrothe,hood of Paper
Makers, 12 N L It B 60
n Mann's discliaige is discussed in Section D, infra
VIRGINIA ELECTRIC AND POWER COMPANY 427
reports on labor matters since 1934, and that in these circumstances
no significance should be attached to the use of his services. Assuming
that the operative did not submit any reports on labor matters after,
the passage of the Act,32' the respondent nevertheless continued after,
the passage of the Act to employ an undercover operative to report on
incipient union activities among the Norfolk employees-an operative,
who by posing as an ardent supporter of organized labor had insin-
uated himself into a strategic position to uncover any movement to
organize the respondent's employees. In so doing the respondent
engaged in an unfair labor practice, irrespective of whether the
employees were aware of this operative's activities. Our experience
establishes that employees resort to labor espionage for the purpose
of obstructing and destroying self-organization. To be effective it
must necessarily be secret; it is nonetheless effective in restraining the
employees in the exercise of their rights under the Act on this account.34
We find that the respondent, by employing an undercover operative
to' report on the organizational activities of its Norfolk employees
and by questioning employees suspected of engaging in union activities
as to such matters, interfered with, restrained, and coerced its em
ployees in the exercise of the rights guaranteed in Section 7 of the Act.
As regards the April 26 bulletin, we are not unmindful of the re-
spondent's argument that its reference to the employees' right to join
the union of their choice and its statement that no employee would
suffer because of his membership, assured the employees of its im-
partiality, and that hence the employees could not have been restrained
in their choice of representatives by any statement contained in the
bulletin. We do not agree, however, that the respondent's brief
reference to the employees' rights under the Act rendered the em-
ployees wholly free with respect to joining unions. On the contrary,
in view of the respondent's past hostility to labor organizations, and
in view of the tiniing-of the-bulletin, after nationally affiliated organi-,
zations had attempted to organize the employees and at a time when
the Supreme Court decisiofis sustaining the validity of the Act ren-
dered further attempts imminent, we believe that the employees could
32T. Norman Jones, a vice president of the respondent and a witness for the i cepondent,
testified on direct examination that he had heard that a repeat was received fi om this
operative in March 1937 lo the effect that someone was planning to organize the men at the
Reeves Avenue Power Station On cross-examination he testified that he was "uncei Lain"
about the matter and did "not wish to swear" that the information which he received was
obtained through the undercover operative
'0 The conclusions of the LaFOllette Committee concerning industrial espionage fully
confirm the Board's experience Sen. Rep No 46, Part' 3, 75th Cong , 2d Sess , pp 8-9
"Bethlehem Steel Company v N L R B . 120 F (2d) 611, 647 (App D C ), enf'g
Matter of Bethlehem Steel Corpmatnon et of and Steel Workers Organizuig Committee, 14
N L R B 539; N L R B v Baldwin Locomotive Works, 128 F (2d) 39, 50 (C C A 3),
enf'g Matter of The Baldwin Locomotive Works and Steel Workers Orgavnz,nq Committee,
20 N. L R B 1100 Al L R Bev O)ower-ShipperVegetable Association, 122 F ( 2d) 368,'
376 (C C. A 9) enf'g in this iespect Matter of (}rower-Shipper Vegetable Associatioit et al.
and Fi sit and Vegetable Workers Union of California, No. 18211, 15 N. L R. B 322
0
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not fail to be discouraged from joining "national" labor organizations
by-the respondent's action in posting the bulletin, which, as a whole, so
clearly showed the respondent's opposition- to their taking such a step.;
The respondent's subsequent activities. including its successful•_effort
to effect the formation of a company-wide organization and- the dis-
charge of Mann because of his opposition to such an organizati'on,35
cast revealing light on the respondent's' motives in posting the bulletin.'
Viewing the bulletin in the light of the background in which it was
posted and-the respondent's subsequent activities, we find'the bulletin,
cl'e'arly coercive. We accordingly find,that the posting of the bulletin,
was an integral part of the respondent's conduct, and as such, inter
fered with, restrained, and coerced the respondent's employees-in the,
exercise- Of the rights guaranteed in Section 7 of the Act.36
The respondent contends that it' arranged the'May 24 meetings-t6
point out to-the employees the impracticability of=bargaining.sepa
rately with each small group which might desire a' change,in existing
wages, hours, and working conditions, and to give them an oppor-
tunity to decide whether they desired to organize on a basis which
would render bargaining feasible: 'The employees' have the right;
however, to organize upon any basis they see fit; they are'not required
to organize upon the particular basis that suits the convenience of
the employer. The respondent in advising the employees' representa=
tives that bargaining by "various departments and various occupa-
tions" was "not. the logical procedure," and that "all interested groups,
should be- represented in the discussions," encroached upon it field of
activity reserved exclusively to employees.37 Moreover, the respond-
ent in, the May 24 message urged the employees in so many words to
proceed with' "the formation of a bargaining agency," not any, bar.
gaining agency as the respondent contends, but a company-wide
unaffiliated organization, as we have found. For these reasons the
contention that the-respondent at the May 24' liieeting merely gave
8' Mann's discharge is discussed in Section D below. .
36 See N. L ' R B v. Ellcland Leather Go, 114 F . ( 2d) 221 , 223-224 (C C A 3), cert
denied 311 U S 705 , eiif:g Matter of Elbland Leather Co , Inc and Nat oonal Leather Work-
ers Association, Local No. S7, 8 N L R B 519 , Palley Mould it Iron Go) p v A' L R B,
116 F ( 2d) 760. 766 (C C A 7), cerrt denied 313 U S 590, enf'g Matter of Palley Mould
and L on Corporation and Steel Workers Organizing Committee, 20 N L R B 211;
American Enka Corp v N L R B , 119 F ( 2d) 60, 62-63 (C C A -4), ent'g Matter of
American Enka Coiporati,on and Tei, ile Workers Union No 22129, 27 N L R B 1057 ;
A' L R B v Blossom Products Corp , 121'F ( 2d) 260 , 261-262 (C C A 3), enf,g Matter
of Blossom Products Corpoiation and International Ladies Garment Woi-beis Union, 20
N L R B :335; N L R B v Peter Pan Company,of Winchester, Inc, decided June 1, 1942,
10 L R R 494,,enf 'g Matter of Peter Pon Company, Inc, et al , and United Garment Work-
eis of America, 21 N L R B 522, 535-537 , 510-543 , compare the "Sasser stateinent" in
System Federation No 40 v Virginian Ry Co., 11 F. (2d ) 621, 624-625, 633 , aff'd 84 F (2d)
641 (C C A 4),aff' d300U S 515, " ' -
3' Cf Corning Glass Woiks v N. L R. B , 118 F . ( 2d) 625 (C C A 2), enf g Matter of
Corning Glass Woiks Macbeth -Evans Division and Federation of Flat Glass Woilers of
America, 15 N L R B 598.
VIRG'INI--A ELECTRIC AND POWER COMPANY 429
.the employees the opportunity to decide whether,or not they 'wante'd
to bargain must be 'rejected. -
The respondent further contends that since it included-in the-message
a statement of the employees' rights under the Act and declared that
,no,employee would be - discriminated against because of his choice of
unions, any suggestion that it might have made in the message that the
,employees form a company-wide organization could not have impaired
the employees' free choice, of representatives. - We cannot agree that
the message left the employees the complete, and unfettered -freedom of
choice of representatives contemplated by the Act. Evaluating the
message as a whole in light,of,the respondent's long-standing opposi-
tion to the organization of the employees,-the anti-union activities of
Superintendent Bishop, the bulletin of April 26 appealing to the
employees,to,ignore the overtures of the organizers of nationally affili-
ated organizations, the discharge of Mann for -advocating affiliation
,with a "national" union '38 and the respondent's subsequent support.of
the proponents of the I. 0. E: and interference with the activities of
the adherents of nationally affiliated organizations, and giving due
.regard to the sensitivity of employees to even subtle expressions of
preference on the part of their employers'39 we find that the respondent,
in urging upon the employee representatives the formation of, a bar,-
,gaining agency of their "own," impaired the employees' free choice of
'representatives, notwithstanding the respondent's reference in the
message to the employees' rights under the Act.
Upon all the facts, we are convinced and find that the May 24 meet
ings were arranged and the respondent's message to the employees was
prepared for the purpose of bringing about the formation of a com-
pany-wide unaffiliated organization. The messages themselves con-
tain, as we have found above, a thinly disguised plea for the formation
,of just such, an organization. Had not the respondent been determined
.to effect the formation of such an organization there would have been
no lawful occasion for the respondent's arranging the May 24 meetings
as it did, for, it had only recently "advised" the employees concerning
;their rights under the Act. The whole procedure of the May 24 meet-
ings was obviously chosen with a view to facilitating the formation of
the desired organization. Not satisfied with the bulletin board method
,of transmitting messages to the employees, which the respondent had
za See Section D below
39lnternational Association of Machinists v. N L R B , 311 U S 72, 78, aff'g 110 F
(2d) (29 App D C ), enf'g Matter of The Serrick Corporation and International Union,
United Automobile Workers of America, Local No. 459, 8 N L R B - 621 ; N L. R B v
'Link-Belt Co ,,311 U. S. 584, 598-599, enf'g Matter of Link-Belt Company and Steel Workers
Organizing Committee, 12 N L. R. B. 854 ; N. L. R. B. v. Virginia Electric and Power Com-
pany, 314 U S 469, 477, remanding 115 F (2d) 414 (C C. A 4), ieveising Matter of Vii-
-ginia Electric & Power Company and Transport Workers Union of America , et al, 20
N. L. R B-911. -
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
utilized in the past, this time the respondent delivered its message
personally to 'representatives of the employees chosen at the respond-
ent's behest. 'This strategy enabled the respondent to obtain a spokes-
man for its project in almost every department. The device of with-
drawing from the meeting places and suggesting that the- employee
representatives remain for further discussion, we believe was intended
to give them an opportunity to formulate their plans before consulting
with their constituents and thus to expedite the formation of an organi-
zation 40 We conclude, therefore, that the respondent arranged the
meetings and urged upon the employees the formation of a company-
wide unaffiliated organization because it feared the course the em=
ployees might pursue if the respondent did not intervene, that the
respondent did so in a further effort to- control the exercise by its
employees of their right to self-organization, and that in doing so the
respondent injected itself into a sphere of activity reserved exclusively
to its employees and thereby interfered with, restrained, and coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act.
As regards the respondent's assistance to the I. 0. E. during its
formative stage, we are not impressed by the respondent's contention
that it had no knowledge that the meetings of the committees were
being held on its premises. We think it very unlikely that sizeable
groups of employees could have met after the close of business on seven
or more occasions in the resp'ondent's buildings, buildings in which
the employees for the most part were not employed, without this
fact becoming known at least to persons whose duty it was to report
such unusual occurrences to responsible supervisory officials of the
respondent. In addition, on May 28 and 29 copies of local newspa-
pers at Norfolk, introduced into evidence by the respondent, reported
meetings of employees at which they decided to form an unaffiliated
organization and also announced 'the meeting to be held in the re-
spondent's office building on June 1. Despite this advance notice that
the Norfolk employees proposed to use its property for the purpose
of forming a labor organization, the respondent made no objection
when-the Norfolk employees met on its property, not only on June 1
but also on June 7 and 11 as well. In view of these circumstances,
we find that the respondent gave tacit, if not-express, consent to the
use of its premises. The respondent's acquiescence in the repeated use
of its premises for organizational meetings ofthe I. 0. E., particularly
40 The effectiveness of this strategy is shown by the fact that the employee i epresentatives
at the May 24 meetings were largely iesponsible foi the formation of the I 0 E , although
prior to May 24 they had not, for the most part, even consideied the necessity of forming
a labor organization. Not only did the employee representatives constitute a large majority
cf the prelimin.uy steeiing committees, but 8 of 10 members of the-general committee, the
governing body of the I 0 E, were May 24 representatives, as were 18 of the 27 repre-
sentatives elected by the various voting sections of the 1 0 E
VIRGINIA _ ELECTRIC _' AND_.POWER COMPANY 431
when contrasted with respondent's attitude towards the use of company
time and property by organizers for "national" unions, not only fa-
cilitated the efforts of the I. O'. E. organizers to form the organization
but also constituted a concrete demonstration 'of - the respondent's
approval of the project.'
We must reject the respondent's contention that no significance
should be attached to the use of its premises by the I. O. E. organizers
because it occurred only "in the initial groping for some plan of
organization." It is during this period that that employer support
is most effective. Once an organization is formally established, it
can often continue to function, without employer support. During
the critical formative stage, however, particularly where the pro-
ponents of the organization are acting, as in this case, not upon
their own initiative but in response to the urgings of their employer,
employer support is extremely vital. We find that the respondent's
support of the I. O. E. organizers during "the initial groping" period
contributed materially to the success of the I. O. E. organizers, in
bringing about the formation of that orgamzatioli 42
Upon all the facts summarized above, we conclude that the I. O. E.
was not the result of the employees' free choice; that it was initiated
in response to the urgings of the respondent at the May 24 meetings
to, set up their "own" organization; that the respondent's support
of the organization during the critical formative period and its con-
sistent opposition to nationally affiliated organizations are 'largely
responsible for the adherence of the employees to the organization;
and that the contract with the I. O. E. granting a closed shop and
the check-off of the I. O. E. dues marked the climax of the respond-
ent's efforts to erect an unaffiliated organization as a bulwark against
nationally affiliated organizations. We find that the respondent has
dominated and interfered with the formation and administration of
the I. O. E. and has contributed support to it, and has in this and the
other respects set forth above interfered with, restrained, and coerced
" N L R B V Bradford Dyeing Association, 310 U S 318, 333, 335, 336, enf'g Matter
of Bradford Dyeing 'Issociation (U S A ) and Textile Workers Crganning Committee, 4
N L R B 604; Titan Metal Mfg Co v N L R B, 106 F (2d) 254, 257, 258, 262
(C C A 3), ceit denied 308 U S 615, eiif'g Matter of Titan Metal Manufacturiny Company
and Fedei al Labor Union No 19981, 5 N. L R B. 577; New Idea, Inc. v. N. L. R B, 117 F
(2d) 517, 521, 523-524 (C C A 7), enf'g Matter of New Idea, Inc-and International Asso-
ciation of Machinists at al, 21 N L R B 223; N. L. R. B. v. Brown Paper Mill Co, 108 F
(2d) 867, 870 (C C. A. 5), ceit denied 310 U S 651, enf'g Matter of Brown Paper Mill
Company, Inc and International Brotherhood of Paper Makers, 12 N L R B 60.
" See Western Union Telegraph Company v N L R B , 113 F (2d) 992, 995 (C C A 2),
enf'g Matter of Western Union Telegraph Company and American Communications Asso-
ciation, 17 N L R. B 34 ; cf Kansas City Power and Light Company v N L R B , Ill F
-(2d) 340, 349 (C C A 8), enf'g as modified Matter of Kansac City Power it Light Company
and International Brotherhood of Electrical Workers, 12 N I. R B 1414; N L R B v
Brown Paper Mill Co , 108 F. (2d) 867, 870 (CC A 5), ceit denied 310 U S 651, enf'g
Matter of Brown Paper Mill Company, Inc and International Brotherhood of Paper Makers,
12 N L R. B 60.
9
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its employees in the exercise of'the rights guaranteed in Section 7 of
the Act.
D. Discriminatory discharges and lay-offs
Joseph Bolton. Bolton was employed by the respondent in Sep-
tember 1926 as a -bus operator in the Norfolk division. He was dis-
charged on`January 13, 1938. In his Intermediate Report the Trial
Examiner found that the respondent's discharge of Bolton was not
discriminatory and 'recommended that the complaint as to him be
dismissed. The Amalgamated, which had filed the charges as to Bol-
ton,filed no exceptions' to the Intermediate Report. We have exam-
ined the record with respect to Bolton and. we agree with the Trial
Examiner's finding. We shall 'accordingly dismiss the complaint
insofar as it alleges that by discharging Bolton the respondent dis-
criminated in regard to his hire and tenure of employment.
Everard M. Mann. Mann was employed by the respondent as a
streetcar operator in Norfolk on July 29, 1936. As we- have hereto-
fore noted, at one of the meetings of Norfolk transportation employees
held on May 11, 1937, on the respondent's premises at Superintendent
Bishop's suggestion, Mann protested vigorously against the formation
of an inside union, advocated that the employees affiliate with either
the C. I. O. or the Amalgamated,, and stated that he preferred the
C. I. 0., which he joined shortly after the meeting. Thereafter he
continued to urge his fellow employees to join a union having national
affiliation. On May 27, 1937, Mann, who had spoken to Bishop a few
days earlier with reference to obtaining a personal loan of $50 from
'the respondent, walked into the dispatcher's office at Norfolk and,
unaware that Superintendent Bishop was there, loudly inquired, "Has
anybody seen this guy Bishop?" Bishop, who was in the office read-
ing a newspaper, lowered it, and the dispatcher said, "Mr. Bishop is
sitting right over there." Mann looked at Bishop, but said nothing
and walked out. On June 1, the day upon which meetings were sched-
•uled'to,be•held at both-Richmond and Norfolk to lay plans for the
formation of an unaffiliated organization, Bishop discharged Mann, on
the ground that he•had been disrespectful. to hin7. Bishop testified that
-he was embarrassed by Mann's disrespectful reference to him in the
presence of - other employees, and that he. discharged him on this
account after consulting with Vice-President Throckmorton. Bishop
also testified that Mann had, a poor accident record, but stated that
this was not the immediate cause of his discharge. Mann's accident
record, while not good, was admittedly better than'those of many`oper-
ators retained by the respondent in its employ.
We are of the opinion that Mann was discharged because of his
union activities and not because of the incident relied upon by Bishop.
VIRGINIA, ELECTRIC AND POWER COMPANY 433
As stated above, Mann was one of the first employees to take a firm
stand against an unaffiliated organization and to advocate 'affiliation
with a national union. Bishop's opposition to affiliated organizations is
clear, not only from his action in seeking out employees and question-
ing them concerning union matters each time he suspected them of
attempting to organize,43 but from his blunt statements to the, effect
,that unions were "no good," that they were nothing but "trouble
makers," and that the respondent would fight them to the limit. We
are convinced, upon the entire record, that Bishop seized upon the
.the incident of May 27 as a pretext to get rid of Mann, and that it was
intended as a warning to those employees also favoring, affiliation
with a national organization as to what the future held in store for
them. Although Bishop stated that he had no knowledge of Mann's
union activity, Warren Bishop, his son, was present throughout the
May 11 meeting at which Mann spoke. Bishop denied that he had
ever obtained any information regarding the labor activities of the
employees from his son, or that he had discharged Mann for his union
activity, but offered no explanation why Warren Bishop, who was not
an employee of. the respondent, was present at the meeting. In view
of Bishop's demonstrated antagonism to affiliated organizations, we do
not find his denials convincing.
We find that, by discharging Everard M. Mann, the respondent
discriminated in regard to his hire and tenure of employment, thereby
discouraging membership in the. T. W. U., and interfering with, re-
straining, and coercing its employees in the exercise of the rights guar-
anteed in Section 7 of the Act. ' .
A. F: Stamitom and Robert E. Elliott, Jr. Staunton, a first-class
lineman in the Norfolk distributing department, and Elliott, a bus
-operator in the Norfolk transportation department; were discharged on
November 4, 1937, because of their refusal to join the I. O. E: Novem-
ber 4, 1937, narked the end' of the 90-day period which employees were
given 'to join the I. O. E. under the closed-shop provision of the con-
tract with that organization. The respondent defends these discharges
principally upon the ground that they were required by the closed-shop
provision of the contract with the I. O. E., which the respondent con-
tends comes within the proviso of Section 8 (3) of the Act permitting
- employees to enter into such contracts with unassisted labor organiza-
tions representing a majority of the employees in appropriate bargain-,
ing units. However, in view of our findings as to the respondent's in-
terference with, and domination and support of the I. ' O. E , that
organization obviously cannot qualify as an organization not assisted
by unfair labor' practices; the closed-shop provision therefore is in-
43 Bishop, it. should be noted, is the supervisory employee to whom Undei cover Operative
Walters submitted his report on labor activities.
- 487498-42-vol. 44--28
434 DECISIONS- OF .NATIONAL LABOR - RELATIONS --BOARD
valid, and'Staunton's and Elliott's discharges- necessarily .f all. within
the-ban of the Act. -
The respondent further argues that Staunton was not discharged,
but voluntarily chose to leave the respondent's employ. • The record
shows, however, that Staunton reported -for work on November 4, as
usual, but was not permitted to go to work by Superintendent of
Distribution Crafton, who informed him that no one could go to work
who was not a member of the I. O. E. Staunton refused to join, assert-
ing, according to Crafton, that he would quit before he would sign up:
It is thus apparent that Crafton conditioned Staunton's going to work
upon his joining the I. O. E., a condition which, in view of ouhfinding-
as to the invalidity of the closed-shop provision, he could not lawfully
impose. 'We find that Staunton was not obliged to work subject to this
illegal condition, and that Crafton's action in imposing this condition
was tantamount to discharging him.
We find that the respondent discharged A. F. Staunton and Robert
E. Elliott, Jr., because of their refusal to join the I. O. E., thereby
discriminating in regard to hire and tenure of employment, encourag-
ing membership in the I. O. E., and discouraging membership in the
I. B. E. W. and the T. W. U., of which they were active members, and
thereby interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
J. L. Judge and T. N. Harrell, Jr. In the spring of 1938 the re-
spondent practically completed an extensive rural electrification pro-
gram upon which it had been engaged since 1936, ^ necessitating a
reduction in the number of employees in the distribution department.
On March 31, 1938, 13 employees in the Norfolk distribution depart-
ment were laid off, including Judge, a second-class lineman, and
Harrell, a third-class lineman. The factors which the respondent took
into consideration in selecting the employees to be laid off, according
to William T. Crafton, the superintendent of the Norfolk distribution
department in charge of personnel matters, were, "First; seniority;
.second, their ability; and third, their dependents."
Both Judge and Harrell were employed in April 1936 as temporary
lineman's helpers, both received several wage increases in 1937, and
both were reclassified as third-class linemen. On November l,'1937,
Judge was reclassified as a second-class lineman. Of the second-class
linemen, Judge had the least seniority, having been-with the respond-
ent only since April 1936. The next youngest second-class lineman
had been with the respondent almost 3 years longer than Judge. Of
the 10 third-class linemen in the respondent's employ on March 31,
1938, Harrell had been with the respondent longer than 5 of them.
All of these 5 employees were retained when Harrell was laid off.
Judge and Harrell were charter members of the I. B. E. W. which
initiated organizing activities among the Norfolk distribution employ-
VIRG'I\I; ELECTRIC AND POWER COMPANY 4355
;ees in' June -1937. In August Judge was elected financial secretary
and treasurer of the organization. Both employees were vigorous
'opponents of the -L'0. E.- and sought to expose the weaknesses of the
organization; both at the time of their lay-offs were engaged in a cam-
paign to build up the I. B. E. W. among -the employees. Their mem-
bership in that organization was known to the respondent, Superin-
tendent of Distribution Crafton having ordered Judge and Staunton
to remove an I. B. E. W. notice, signed by them, from the respondent's
bulletin board, and General Foreman May having been informed by
Harrell of•the fact that he had joined the I. B. E. W. shortly-after he
joined the organization.
The respondent contends that Judge was chosen to be laid off because
he had the least seniority of any of the second-class linemen. Since it
appears that Judge did have considerably less seniority than any
other of the second-class linemen, and since seniority was a factor to
which the respondent uniformly gave weight in determining em-
ployees to be laid off, we are not persuaded that his union membership
and activities were the cause of his selection to be' laid off,-although
lie was an able worker whose advancement had been exceptionally
rapid.
The respondent urges that Harrell was selected to be laid off because
lie was continually becoming embroiled in altercations both with his
fellow employees and with his supervisors. The respondent cites
several instances of such altercations: Harrell himself made no at-
tempt to conceal that he was rather hot-headed. We think it not
unreasonable, in view of Harrell's quarrelsome disposition, that the
respondent would select him to be laid off when a general reduction
in force became necessary, particularly since there was little difference-
in seniority'among the third-class linemen and all had been reclassified
as third-class linemen on the same day. Moreover, at the time Harrell
was laid off the respondent's relations with its employees were under
the scrutiny of a representative of the Board in connection with the
charges of doinination which had been filed. This was scarcely an
opportune time for the respondent to resort to anti-union dis-
crimination.
We find that the respondent by laying off J. L. Judge and T. N.
Harrell, Jr., did not discriminate in regard to their hire or tenure
of employment, and we shall dismiss the allegations of the complaint
with respect thereto.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent de-
scribed in Section I, above, have a close, intimate, and substantial
436 DECISIONS OF NATIONAL,LABOR RELATIONS BOARD
,relation to trade, traffic, commerce, transportation, and communica-
ttion among the several States, and -tend to lead to labor disputes
,burdening. and obstructing, commerce and,the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor
,practices, we shall order that it cease and desist therefrom and that it
,take certain affirmative action which will effectuate the policies of
,the Act.'
We have found'that the respondent has dominated and interfered
with the formation and administration of the I. O. E. and has con-
..tributed 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 shall order the respondent to withdraw all recognition
,from the I. 0. E. as the representative of any of the respondent's
,employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
.and other conditions of employment, and completely to disestablish it
,as such representative 44
Having found that the respondent entered into an invalid contract
with the company-dominated I. O. E. providing for a closed shop,and
the deduction of I. O. E. dues from the employees' wages in a final
.effort to bulwark itself against nationally affiliated organizations, we
,shall order the respondent to cease and desist from giving effect to
..the said contract or to any extension, renewal, modification, or supple-
ment thereof, or any successor contract with the I. O. E. which may
mow be in force. Nothing in this Decision or'in our Order should be
-taken, however, to require the respondent to vary, those wages, hours,
.and other substantive features of its relations with the, employees
,themselves, if any, which the respondent established in the perform-
ance of such contract as extended, renewed, modified, supplemented,
or superseded.45
We are of the opinion that, under the circumstances of this case, the
,respondent should be ordered to reimburse each employee for any
amounts which the respondent has deducted from his wages for dues
and assessments in the I. O. E. The respondent concluded a closed-
shop contract with the I. O. E., a company-dominated organization,
thus compelling its employees to become and remain members of the
'4 See N. L R B V Newport News Shipbuilding and Dry Dock Corporation, 308 U S 241;
'N L. R. B v The Falk Corporation, 308 U. S 453; N. L. R. B. v. Pennsylvania Greyhound
Lines, 303 U. S. 261.
15 See National Licorice Co v. N. L R. B., 309 U. S. 350, 365-367.
t -VIRGINIA ELECTRIC ANb-POWER COMPANY - 437-
illegal organization: Einployees'were in fact discharged, because,they
refused to-join the 1.,0, E. `The check-off'provision, a device bywhichi
the- respondent assured the financial stability of the company-domi-
nated organization, could no more be avoided by the employees thaw
could the compulsory membership requirement. The bylaws of the'
I. O. E: required-, its members to execute check-off authorizations under,
penalty of being dropped from membership in the 1. 0. E., and thereby,
under the closed-shop' provision, from their jobs. We find that the
monies thus deducted from the wages of the employees constituted, the
price of retaining their jobs, a price coerced from them for respondent's
purpose of supporting and maintaining the organization which re-
spondent had dominated in order -to thwart bona fide' representation.-
We further find that, as a result of the imposition of the illegal closed-
shop and check-off requirements, the employees suffered a definite loss'
and deprivation of wages equal to the amounts deducted from their-
wages-and paid over to the I. O. E. It is appropriate that the em-
ployees be made whole by reimbursement of amounts exacted from,
them for' illegal purposes. We find that in these circumstances; e the
effects of the unfair labor practices may be fully remedied and the'
purposes and policies of the Act may be completely effectuated only by
restoring the status quo. Hence, we shall order the respondent to reim-
burse its employees for the amounts deducted from their wages for
dues and assessments in the I. O. E. -
Having found that the discharge of Everard M. Mann and A. F.
Staunton were unfair labor practices we shall direct 'the respondent
to reinstate each of them to his former position, without prejudice to
his seniority, or other rights and privileges. We shall further order
the respondent to.,make whole Mann and Staunton for any loss of pay
they may have suffered by reason of the respondent's discrimination'
Against them by payment to each of them of a sum of money equal to
the amount which he normally would have earned as wages from the
date of his discharge to the date of the respondent's offer of reinstate-
ment, less his net earnings.47
46 The propriety of an order requiring reimbursement of dues deducted from wages depends
upon the particular circumstances of the case In the particular circumstances of this case
we regard - the dues reimbursement requirement peculiarly "adapted to the situation which
calls for redress " N . L. R. B v Mackay Radio & Telegraph Co., 304 U . S 333 , 348. Cf.
Matter of Abraham B Karron, doing business as Pennsylvania Handbag Frames Manufac-
turing Company and Local 1224, United Electrical , Radio , and Machine Workers of America,
41 N L R . B. 1454 , 1469; - Matter of Ohio Valley Bus Company and Division 1171 , Amalga-'
mated Association of Street , Electrical Railway & Motor Coach Employees of America, 38
N. L R B 838 , 862, note 27 '
44 By "net earnings " is meant earnings less expenses such as transportation , room, and
board , incurred by an employee in connection with obtaining work and working elsewhere
than for the respondent which would not have been incurred but for his unlawful discharge
and the consequent necessity of his seeking employment elsewhere See Matter of Crossett
Lumber Company and United Brotherhood of Carpenters and,Jotners of America , Lumber
and Sawmill Workrs Union, Local 2590, 8 N . L R B 440 Monies received for work per-
formed upon Federal, State, county, municipal , and other work-relief projects shall lye
considered as earnings See Republic Steel Corporation v N L R. B ., 311 U. S. 7.
438- DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
Although. finding that Staunton `had been, discharged in violation of
the Act the Trial Examiner did not recommend his reinstatement upon,
the grounds that he 'subsequently obtained- regular and substantially'
equivalent employment. We are of the opinion, for reasons which
we have heretofore set forth '411 that regardless of whether Staunton
obtained regular and substantially equivalent employment subsequent
to his discharge his reinstatement is an appropriate means of effectuat-
ing the policies of -the Act. We consequently find it unnecessary to,
pass upon the question of whether or not Staunton's subsequent em-
ployment was regular, and substantially equivalent. Since, however,
the respondent could not have been expected to offer Staunton reinstate-
ment during the period the Trial Examiner's Intermediate Report was
outstanding, we shall direct that the period from•the date of the Inter-
mediate Report to the date of our original Decision and Order herein
be excluded in the computation of back pay due him.
Having, also, found„ that; the lay-off; of Robert. E. Elliott-, Jr., was
an unfair labor practice we would normally order his reinstatement
with back pay. The respondent, however, has adduced convincing
evidence that the normal ' remedy of reinstatement with back pay,
should be withheld in Elliott's case. -. On April 12, 1937, a Monday
(the day upon which the weekly-passes are sold) Elliott had' an acci-
dent in which over $100 of the respondent's money disappeared. On
November 1, 1937, also a Monday, and but 2 days before the deadline
for joining the I. 0: E. under the respondent's contract with the or-
ganization, Elliott had a second. accident- in which he reported losing
$75 of the respondent's money. He never reported for work after
this accident and was discharged on November 4, 1937, for failing
to join the I. O. E. as required by the respondent's contract with that
organization: Tli;e respondent's physician, who examined Elliott,
on the day after the accident reported that he could observe no ob-
jective symptoms of any injury' and it appears - that- Elliott -was not
confined to his bed by his injury. • The respondent was unable to locate
any of the persons named as witnesses to the accident by Elliott. Ray-
mond G. Carroll, the manager of the Norfolk transportation-depart-
ment,, testified that after investigation lie concluded that the report,
was a misrepresentation and that the respondent on November .6.
a regular pay day, declined Elliott's request for his past 2 weeks'
pay pending a final determination of the matter. - Elliott filed a suit
for his back wages against the respondent in the Civil'Justice Coiirt of
the city of Norfolk which the respondent resisted by filing a plea of
set-off. This suit had not been brought to trial at the time of the
9e See Matter of Ford Motor Company and International Union, United Automobile Work-
ers of America , Local Union No 2$7 , 31 N L R B 994 , 1099-1100 , Phelps Dodge-Corpo7a
tionv.N.L R B, 313 U S 177.
VIRGINIA ELECTRIC AND POWER COMPANY 439
hearing in the case and the respondent. has not, so far, as appears in
th& record;, paid- Elliott his final wages.. Subsequently Elliott filed
a claim for compensation with the Industrial Commission of Virginia.
The opinion of the Commission dated December 22, 1938,'9 of which
we take judicial notice, recites as follows:
The claimant recites the fact that he had an accident but
further did not produce any witnesses to same. The defendant
showed by prepouderence of evidence that the accident did not
occur. The burden of proof is upon the claimant to make his
claim and as he has failed to do so, this claim is dismissed.
Thus it appears that from the time it_ first had an opportunity to
investigate Elliott's November 1, 1937, accident the respondent has
been of the conviction that Elliott falsely reported losing the respond-
ent's money. It further appears that the respondent has acted pursu-
ant to-conviction, not-only by refusing' to pay Elliott+hisfinal-wages
when they were due, but by defending its position in every tribunal
to which Elliott took his case. While we do not find that Elliott falsely
reported losing respondent's funds, nevertheless, in this situation we
do not think that it would effectuate the policies of the Act to require
the respondent to,'restore Elliott to his former position. We shall,
therefore, not require Elliott's reinstatement with back pay.
The respondent's entire course of conduct, including its many and
varied forms of interference, restraint, and coercion, its-domination
and support of the I. O. E., and its discriminatory discharges discloses
a fixed:piiipose on the part of respondent to defeat' self-organization
and its objects. Because of the respondent's unlawful conduct in
the past and its underlying purpose we are convinced that there is
a danger of the respondent engaging in other related unfair labor
practices proscribed by the Act in the future. The preventive pur-
pose of the Act `will be thwarted unless our order is coextensive with
the threat. In order, therefore, to make effective the interdependent
guarantees of Section 7, to prevent a recurrence of unfair labor prac-
tices, and thereby to minimize strife which burdens and obstructs
commerce, and thus effectuate the policies of the Act, we shall order
the respondent to cease and desist from in any manner infringing the
rights guaranteed in Section 7 of the Act.
Upon the basis of -the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Transport Workers Union of America, Amalgamated Associa-
tion of Street, Electrlc^il` -Riiihvay, and `Motor Coach Employees of
49 This opinion was not before us when we handed down our original decision herein.
a
440' DECISIONS 'OF NATIONAL LABOR RELATIONS' BOARD
America, International Brotherhood of Electrical Workers, 'and The
Independent Organization of Employees of Virginia ' Electric and
Power 'Company, are labor organizations within the meaning of: Sec-
ti'on,2 (5) of the Act. -
2. By dominating and interfering with the formation and admin-
istration of The Independent Organization of Employees of Virginia
Electric and Power Company, and 'contributing support to it, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (2) of the Act.
3. By discriminating in,regard to the hire and,tenure of employment
of Everard M. Mann, Robert E. Elliott, Jr., and A. F. Staunton, and
thereby discouraging membership in Transport Workers Union of
America, Amalgamated Association of Street, Electrical Railway, and
Motor Coach Employees of America, and International Brotherhood
of Electrical Workers, and encouraging membership in The Independ-
ent Organization of Employees of Virginia Electric and Power Com-
pany, the respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8 (3) of the Act.
4. By interfering *ith, 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.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section-2 (6) ^ and (7) of
the Act.
6. By discharging Joseph Bolton and laying off J. L. Judge 'and
T. N. Harrell, Jr., the respondent has not engaged in unfair labor
practices - within the,meaning of, Section 8 (3) of the Act.,
ORDER
On 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,
Virginia Electric and Power Company, Richmond, Virginia, and its
officers, agents, successors, and assigns, shall:
1. Cease and desist from :
•(a) Dominating or interfering. with the formation and administra=
tion of The Independent Organization of Employees of Virginia Elec-
tric and Power Company, or the formation or administration of any
other labor organization of its employees, or contributing support to
The Independent Organization of Employees of Virginia Electric and
Power Company, or any other labor organization of its employees;
(b) Giving effect to its contract' heretofore described with The
Independent Organization of Employees of Virginia Electric and
VIRGINIA ELECTRIC AND POWER COMPANY 441
Power Company, or to any extension, renewal, modification, or, supple-
ment thereof, or to any successor contract with The Independent
Organization of-Employees of Virginia Electric and Power Company
which may, now be in, force;
(c) Discouraging membership in Transport; Workers' Union of
America; Amalgamated Association of Street, Electrical Railway, and
Motor Coach Employees of America; International Brotherhood of
Electrical Workers, or any other labor organization of its employees,,
or encouraging membership in The Independent Organization of Em-
ployees of Virginia Electric and Power Company, or any other labor
organization of its employees, by discharging, laying off, or refusing
to reinstate any of its employees, or in any other manner discriminating
in regard to-their hire and tenure of employment;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
johi, or assist labor,oganizations, to bargain collectively through rep-
resentatives of their own choosing, or to engage in concerted activities
for the purposes of collective bargaining and 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) Withdraw all recognition from The Independent Organization
of Employees of Virginia Electric and Power Company as the repre-
sentative of any of its employees for the purpose of dealing with the
respondent concerning grievances, labor disputes, wages, rates of pay,
hours of employment, or conditions of employment, and completely
disestablish The Independent Organization of Employees of Virginia
Electric and Power Company as such representative;
(b) Offer to Everard M. Mania and A. F. Staunton immediate and
full reinstatement to their former positions without- prejudice to their
seniority and other rights and privileges;
.
(c) Make whole Everard M. Mann for any loss of pay he may have
suffered by reason of the respondent's discrimination against him by
payment to him of a sum of money equal to that which he normally
would have earned as wages from the date of his discharge or lay-off
to the date of the offering of reinstatement, less his net earnings during
said period ;
(d) Make whole A. F. Staunton, for any loss of pay he may have
suffered by reason of the respondent's discrimination against him, by
payment to him of a sum of money equal to that which he normally
would have earned from the date of his discharge to September 13,
1938, the date of,the Intermediate Report, and from February 27, 1940,
the date of our original Decision and Order, to the date of the respond-
442 DECISIONS OF NATIONAL` LABOR RELATIONS BOARD
ent's offer'of reinstatement, less his net earnings during said periods;
'(e) . Reimburse each of its employees for all the dues and assessments,
if any, which it has deducted. from his or her wages on behalf of
The Independent Organization of Employees of Virginia Electric
and Power Company;
(f) Post immediately in conspicuous places throughout the respond=
ent's system and maintain for `a period of at least sixty (60), con-
secutive days notices to its employees stating: (1) that the respondent
will not engage in the conduct from which it has been ordered to cease
and desist in paragraphs 1 (a), (b), (c), and (d).;- (2) that it will take
the affirmative action set forth in paragraphs 2 (a), (b), (c), (d), and
(e) of this-Order; and (3) that the respondent's employees are free to
become or remain members of Transport Workers Union of America,
Amalgamated Association of Street, Electrical Railway, and Motor
Coach Employees of America, or International Brotherhood of Elec-
trical Workers, and that the respondent will not discriminate against
any employee because of membership.or activity in , such. organizations;
(g) 'Notify the Regional Director for the Fifth Region in writing
within' ten- (10) days from the date of, this Order what steps ,the
respondent has taken to comply herewith; .
AND IT IS FURTHER ORDERED that the allegations of the complaint with
respect to Joseph Bolton, T. N. Harrell, Jr., and J. L. Judge be,
and they hereby are, dismissed.