Virginia Electric & Power Co.

National Labor Relations Board - Board Decisions

Feb 27, 1940

20 N.L.R.B. 911 (N.L.R.B. 1940)

In the Matter Of VIRGINIA ELECTRIC & POWER COMPANY and TRANS-
PORT WORKERS UNION OF AMERICA
In the Matter Of VIRGINIA ELECTRIC & POWER COMPANY and AMALGAM-
ATED ASSOCIATION OF STREET , ELECTRICAL RAILWAY AND MOTOR
COACH EMPLOYEES OF AMERICA , AN UNINCORPORATED ASSOCIATION
In the Matter Of VIRGINIA ELECTRIC & POWER COMPANY and INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
Cases Nos. C-914 to 0-916, inclusive , respectively .Decided February
27,1940
Electric, Gas , and Transportation Utility Industry-Jurisdiction : corporation
doing both interstate and intrastate business , with integrated management and
sharing of facilities , subject to Act-Interference , Restraint , and Coercion:
surveillance of union meetings ; posting of bulletin hostile to outside organiza-
tions ; questioning of employees concerning knowledge of union activity-
Company-Dominated Union: speeches encouraging formation of ; assistance in
formation of ; support ; encouragement of employees to join ; disestablished as
agency for collective bargaining-Closed-Shop Contract : with company-dominated
union, abrogated-Check-Off: for company-dominated union, employer ordered
to reimburse employees for-Discrimination : discharge and lay-off because of
union membership and activity ; requiring membership in company-dominated
organization as condition of employment ; discharges for refusal to join com-
pany-dominated organization ; charges of, dismissed as to two employees-
Regular and Substantially Equivalent Employment : factors considered in deter-
mination of : desires of employees ; difference and temporary nature of work ;
employees found not to have obtained ; Trial Examiner's findings as to, re-
versed-Reinstatement Ordered: discharged and laid -off employees-Back Pay:
awarded ; from date of discrimination to date of offer of reinstatement ; amount
for period from (late of Intermediate Report to date of Board ' s Order deducted
from,. where Trial Examiner found employees to have secured substantially
equivalent employment after discrimination.
Mr. Gerhard P. Van Arkel, Mr. Beeves R. Hilton, and Mr. Samuel
M. Spencer, for the Board.
Hunton, Williams, Anderson, Gay c Moore, by Mr. T. Justin
Moore and Mr. George D. Gibson, of Richmond, Va., and Venable,
Miller, Pitcher cQc Parsons, by Mr. Roman Miller, of Norfolk, Va.,
for the respondent.
Mr. T. H. Latham, of Virginia Beach, Va., and Mr. E. D. Bieiretz,
of Washington, D. C., for the I. B. E. W.
20 N. L . R. B., No. 87.
911
912 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mr. Arthur E. Reyrnan, 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 & Wyche, by Mr. W. Earl White, of
Petersburg, Va., and Mr. Paul Hadlick, of Washington, D. C., for
the I. O. E.
. Mr. Harry E. Selekman, 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 such
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 such 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, International Brotherhood of
Electrical Workers, herein called the I. B. E. W., filed with the Re-
gional Director charges and amended charges, respectively, that the
respondent had engaged in and was engaging in such unfair labor
practices within the meaning of Section 8 (1), (2), and (3) and Sec-'
tion 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 Regulations-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) and Section 2 (6) and
' Referred to as Virginia Electric & Power Company in the complaint.
VIRGINIA ELECTRIC & POWER COMPANY 913
(7) of the Act. Copies of the complaint, accompanied by notice of
hearing, were duly served upon the respondent, the I. B. E. W., the
Amalgamated, the T. W. U.,2 and Independent Organization of
Employees of Virginia Electric and Power Company, a labor organi-
zation, herein called the I. O. E.
Concerning the unfair labor practices the complaint alleged in
.substance that (1) since about May 1, 1937, the respondent dominated
and interfered with the I. O. E. and contributed support to it; (2)
that the respondent on or about November 15, 1937, discouraged mem-
bership in the I. B. E. W. by terminating the employment of A. F.
Staunton 8 and thereafter refusing to reinstate him because of his
refusal to join the I. O. E. and because of his affiliation with the
1. B. E. W.; on or about April 20, 1938, discouraged membership in
the I. B. E. W. by terminating the employment of T. N. Harrell, Jr.,
and J. L. Judge,4 and refusing to reinstate them because of their
membership in the I. B. E. W. and because they had engaged in con-
certed 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
concerted 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 agree-
ment 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, restrained, and coerced its employees in the exercise
.of their rights guaranteed by Section 7 of the Act by making state-
ments hostile and tending to discourage membership of its employees
in the T. W. U., the I. B. E. W., and the Amalgamated; by maintain-
ing surveillance over the efforts of its employees to form a labor organ-
ization, 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 bar-
gaining representative of all of the respondent's employees with a few
exceptions and denying that the respondent had dominated, supported,
2 The complaint and notice of hearing which were sent to Mont Crum, the person 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.
8 Referred to as Alfred Staunton in the record.
4 Referred to as Johnny L. Judge in the record.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or interfered with it. On May 14, 1938, the respondent filed its
answer denying that it was engaged in interstate commerce and deny-
ing 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 duly 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 produce
evidence bearing upon the issues was afforded all parties subject, in
the case 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 reinstate 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.' The Trial Examiner
granted the motion of counsel for the Board made at the close of its
case to conform the pleadings to the proofs. During the course of
the.hearing the Trial Examiner made several rulings on motions and
on objections to the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed. The rulings are hereby affirmed.
On September 13, 1938, the Trial Examiner filed his Intermediate
Report, a copy of which was served on all parties, in which he found
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 recommended that the respond-
ent 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 relat-
ing 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 en•
gaged in unfair labor practices by its discharges of Bolton and Elliott.
VIRGINIA ELECTRIC & POWER COMPANY 915
Pursuant to notice duly served on all the parties, a hearing was
held before the Board in Washington, D. C., on April 11, 1939, 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 has considered the excep-
tions to the Intermediate Report and the briefs filed in support
thereof. and, in so far as the exceptions are inconsistent with the find-
ings, conclusions, and order below set forth,.finds them to be without
merit. The respondent's notion to dismiss the complaint is hereby
denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF TIIE RESPONDENT
The respondent, Virginia Electric and Power Company, was in-
corporated in Virginia on June 29, 1909, 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 gen-
erating, distributing, and selling electrical energy in eastern Virginia
and northeastern North Carolina. The area served comprises ap-
proximately 10,000 square miles, has an estimated population of 767,-
000, and includes the cities of Richmond, Norfolk, Portsmouth,
.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 nine municipal systems serving a population 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 local interurban bus lines between
Richmond and Petersburg. Its principal office is located in Rich-
mond, 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 four hydroelectric generating plants and
three steam-generating plants with a total capacity of approximately
173,000 kilowatt hours, five of which are in Virginia and two in
North Carolina, and operates approximately 250 substations. It has
transmission line inter-connections with the Virginia Public Service
Company at Occoquan, Virginia, and at Roanoke Rapids, North
6In its brief the respondent asserts 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.
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Carolina, and two transmission line inter-connections with the Caro-
lina Power and Light Company in North Carolina. During the
year 1937 the respondent purchased from the above-named com-
panies 7.1 per cent 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 ap-
proximately 39,000,000 kilowatt hours from North Carolina to Vir-
ginia. Among the consumers of the power generated and purchased
by the respondent are railroads, telegraph companies, telephone com-
panies, 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
.a local interurban bus service between Richmond and Petersburg,
the respondent 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 transportation 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, two gas-generating units of approximately equal. size with
a total rated generator capacity of 81/2 million cubic feet per day,
a holder capacity of 5,273,000 cubic feet, and 332 miles of high- and
low-pressure gas mains. During 1937 approximately 1,253,000 kilo-
watt 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
coming from without the State of Virginia. For the generation of
,electrical energy 295,207 tons of coal were used, more, than 50 per cent
.of which were purchased in West Virginia. About 2,587,000 gallons of
gasoline, consumed by the busses of the respondent, were bought in the
State of Virginia but originated in sources outside the State. 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 pur-
chased 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 in its brief that the employees engaged in
the transmission process of the electrical department are engaged in
VIRGINIA ELECTRIC & POWER COMPANY 917
interstate commerce, but argues that all its other employees are not sub-
ject 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 energy; (2) that large
amounts of electrical energy generated by the respondent are trans-
mitted across State lines; (3) that the respondent purchases electrical
energy which is transmitted to it across State lines; (4) and that in-
strumentalities 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, and 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 transporta-
tion and electrical departments. We conclude that a cessation of the
respondent's business resulting from a labor dispute between the re-
spondent and its employees (a) would affect the flow of large quan-
tities of electrical energy and other commodities received and dis-
tributed 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 Organization,' admitting to its
membership employees engaged in the transportation operations of the
respondent.
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 sys-
tem, excluding supervisory, office, and clerical employees.
International Brotherhood of Electrical Workers is a labor organi-
zation affiliated with the American Federation of Labor. It admits to
membership all types of electrical workers of the respondent.
Independent Organization of Employees of Virginia Electric and
Power Company, an unaffiliated labor organization, admits to mem-
4 See Consolidated Edison Company, et al. v. National Labor Relations Board et al.,
305 U. S. 197 , mod'g in part and aff'g as mod'd 95 F. ( 2d) 390 (C. C. A. 2), aff'g Matter
of Consolidated Edison Company of New York , Inc., et al. and United Electrical and
Radio Workers of America , affiliated with the Committee for Industrial Organization,
4 N. L. It . B. 71; Appalachian Electric Power Co. v . National Labor Relations Board,
93 F. (2d ) 985 (C. C. A. 4), rev'g on other grounds , Matter of Appalachian Electric
Power Company and International Brotherhood of Electrical Workers, Local Union No.
906, et at ., 3 N. L. It . B. 240.
8 Now the Congress of Industrial Organizations.
283031-41-vol. 20-59
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bership all employees of the respondent excluding supervisory, part-
time, and confidential employees.
III. THE UNFAIR LABOR PRACTICES
A. Background
The record affords only a fragmentary history of the. respondent's
labor relations prior to the effective date of the Act. In January 1922,
the Amalgamated called a strike among the street railway operators in
Norfolk, Richmond, Portsmouth, and Petersburg, upon the refusal of
the respondent to renew the terms of an agreement between the
Amalgamated and the respondent. The strike was unsuccessful.
Shortly after the enactment of the National Industrial Recovery
Act,9 Jack Holtzclaw, president of the respondent, in a speech to its
employees, after quoting Donald Richberg and Hugh Johnson to the
effect that the N. I. R. A. did not compel unionization, stated : "It
would be very foolish and utterly inconsistent for the best policy of our
company's operations if I did not say that it is our belief that organiza-
tion of our employees for any purpose ... in this company is entirely
unnecessary."
The Amalgamated again attempted to organize the employees in
1933 and 1934 but did not meet with much success. In March 1937, one
Parker, an A. F. of L. organizer, requested an interview with L. E.
Davis, the chief engineer of the Reeves Avenue plant in Norfolk, to
discuss the matter of organizing the men. Although such an interview
was held, it does not appear that Parker ever made any efforts to
organize the employees. Walter Holzbach, a clerical employee in the
Richmond division, testified that an A. F. of L. organizer was dis-
tributing circulars in Richmond either in March or April 1937. The
T. W. U. began to organize the Norfolk transportation employees in
May 1937. The I. B. E. W. appeared in the Norfolk electrical division
in June 1937 and received its charter on August 4, 1937. Organiza-
tional activity on behalf of the Amalgamated was resumed among the
Norfolk transportation employees late in 1937.
B. Interference, restraint, and coercion
According to his own admission, E. L. Bishop, the superintendent
of the Norfolk transportation division, questioned about. 15 of the
respondent's employees in 1936 concerning their knowledge of organi-
zational activity among them.
Three employees testified that William Edwards, an inspector in
the Norfolk transportation division who performed supervisory func-
tions, kept under surveillance several meetings of the T. W. U. at-
949 Stat . 195 (1933).
VIRGINIA ELECTRIC & POWER COMPANY 919
tended by Norfolk transportation employees in June 1937 by standing
across the street from the entrance of the meeting place and observing
those who entered. Jesse Smith, an employee in the Norfolk trans-
portation division, testified that Edwards warned him around this
time that the employees would keep "messing around" with the C. I. O.
until they lost their jobs. Raymond Hopkins, another Norfolk trans-
portation employee, testified that Edwards made a similar statement
to him. Edwards denied that he had engaged in surveillance or had
made the statements attributed to him by Smith and Hopkins. On
the, entire record, however, we find that Edwards engaged in the
actions attributed to him 10
The respondent contended that on several occasions in May 1937
Holtzclaw and other executives warned its supervisory employees not
to interfere with the employees' efforts to form or join labor organi-
zations and that any violation of such instructions cannot be charged
to the respondent. We are of the opinion, however, that under the
doctrine of respondent superior the respondent must assume responsi-
bility for the action of Edwards 11 as well as for the interrogation
earlier engaged in by Bishop.
We find that by the foregoing acts of Bishop and Edwards the
respondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed in Section 7 of the Act.,
C. Further interference, restraint, and coercion ; domination of
the I. O. E.
1. The April 26 bulletin
On April 26,1937, two weeks after the Supreme Court of the United
States had upheld the constitutionality of the Act,12 the respondent'
posted the following bulletin throughout its operations :
to The respondent also used, until his death in 1937, the services of one Walters, an
employee of the Railway and Audit Inspection Company, who prior to the effective date
of the Act admittedly furnished a report on the labor activity of the employees to the
respondent.
11 See National Labor Relations Board v. A. S . Abell Company, 97 F. (2d) 951 (C. C. A.
4), mod'g and aff'g Matter of The A. S. Abell Company, a corporation and International
Printing and Pressmen 's Union, Baltimore Branch, Baltimore Web Pressmen's Union,
No. 31, 5 N. L. R . B. 644; Swift & Company v . National Labor Relations Board, 106
F. (2d) 87 (C. C. A. 10), mod'g and aff 'g Matter of Swift & Company, a corporation and
Amalgamated Meat Cutters and Butcher Workmen of North America,, Local No. 641, and
United Packing House Workers Local Industrial Union. No. 900, 7 N. L. R. B. 269; and
International Association of Machinists v. National Labor Relations Board, 110 F. (2d) 29
(C. A. D. C.), aff'g Matter of The Serrick Corporation and International Union, United Auto-
mobile Workers of America, Local No. 459, 8 N. L. R. B. 621.
'' National Labor Relations Board 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 & Laughlin Steel Corporation and,
Amalgamated Association of Iron, Steel & Tin Workers of North America, Beaver Valley
Lodge No . 200, 1 N. L. R. B . 503, and companion cases.
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"To Employees of the Company:
"As a 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
organizations 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 locali-
ties. For the last fifteen years this Company and its employees
have enjoyed a happy relationship of mutual confidence and
understanding 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.
"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 organiza-
tion despite anything he may be told to the contrary . Certainly,
there is no law which requires or is intended to compel you to
pay dues to, or to join any organization.
"This Company has always dealt with its employees in full rec-
ognition 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 it 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."
The respondent 's officials explain the posting of this bulletin as
follows: They feared that newspaper publicity concerning labor ac-
tivity in the vicinity of the respondent 's operations and throughout
the United States might have created the impression among the re-
spondent 's employees that they had to join a union , and they desired
to dispel any such impression . It appears , however, that the bulletin
VIRGINIA ELECTRIC & POWER COMPANY 921
was posted, not in response to any inquiry addressed to the respondent
by its employees, but on the initiative of the respondent alone.
On its face the bulletin reveals a marked bias against what it calls
"national" labor organizations. It warns that the employees "may be
approached" by representatives of such "national" organizations, im-
plies that "strikes and unrest" are caused by the campaigns of such
organizations, and stresses the "happy relationship of mutual confi-
dence and understanding" which characterized the 15 years since its
defeat of the Amalgamated in 1922. After brief lip-service to the
rights guaranteed by the Act, it emphasizes the negative "right" of
its employees to refrain from the exercise of those rights.
We interpret the bulletin as an appeal to the employees to bargain
with the respondent directly, without the intervention of any "out-
side" union . We find that by posting the bulletin the respondent
interfered with, restrained, and coerced its employees in the exercise
of the rights guaranteed in Section 7 of the Act."'
2. The May 24 meetings
In the ensuing few weeks several groups of the respondent's em-
ployees responded to the bulletin of April 26 by submitting demands
for increased wages and improved working conditiolis.14 The re-
spondent decided that before acting on these demands it would have
a -high-ranking official address representatives of all the employees.
Employees throughout the system were accordingly instructed by
their supervisors to select representatives to attend meetings at which
a respondent's official would speak. The employees complied. On
the evening of May 24, two meetings of the elected delegates took
place, one at Richmond and the other at Norfolk. At Richmond,
Holtzclaw, and at Norfolk, R. J. Throckmorton, vice president of
the respondent's Norfolk operations, delivered the following address :
"A substantial number of its employees representing various
departments and various occupations have approached the Com-
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 Com-
pany's position with respect to this was recently stated in a
posted bulletin.
Is See Matter o f Goshen Rubber and Manu facturing Company and United Rubber
Workers of America, Local #124, 11 N. L. R. B. 1346 , enf'd as mod ., National Labor
Relations Board v. Goshen Rubber and Manufacturing Company, 110 F. (2d) 432,
1940 (C. C. A. 7) ; and Matter of The Midland Steel Products Company and United Auto-
mobile Workers of America, 11 N. L . R. B. 1214, petition to review filed May 26, 1939
(C. C. A. 6).
14 At oral argument before the Board , counsel for the respondent asserted that the
demands were in response to the bulletin.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"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 intelligent 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 Rela-
tions Act, which provides as follows :
" `SEcrioN 7. Employees shall have the right to self-organi-
zation, 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 en-
gaged 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
department. In spite of this, the Company wants to make it
perfectly clear that its policy is one of willingness to bargain
with its employees 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
bargaining, and we are taking this means of letting you know
our willingness to proceed with such bargaining in an orderly
manner. 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 selection of authorized representatives to conduct
this bargaining in such an orderly manner.
"The Wagner Labor Act prohibits a company from 'domi-
nating or interfering with the formation or administration of
any labor organization or contributing financial or other support
to it.,
VIRGINIA ELECTRIC & POWER COMPANY 923
"In view of your requests to bargain directly with the Coin-
pany 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 supervisors,
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 organization they should form were told they need join none
and were refused advice as to the type of organization they should
adopt. At the close of the respondent's direct participation in the
meetings the delegates were told they might, if they wished, remain
and discuss the matter further. At both meetings, a substantial
number of the delegates remained, decided to report the speech to
their fellow=employees, and agreed to meet for further discussion
on June 1.
By the speech delivered at the May 24 meetings the respondent
gave the initial impetus to the formation of a system-wide labor
organization. The speech referred to the bulletin posted April 26,
thereby reemphasizing the respondent's distaste for "outside" organi-
zations. It expressed the respondent's belief that most of its opera-
tions were exempt from the application of the Act, thus implying
that self-organization of the employees engaged in such operations
was in any event subject to the respondent's sufferance. It neverthe-
less urged. the necessity of organization. Finally, after it had already
quoted the provision of the Act forbidding employer-domination of
labor organizations, and although there was then in existence no
labor organization involving the respondent's participation with
which-contrast could have been intended, it suggested that the em-
ployees select their "own" officers and adopt their "own" bylaws and
rules.
But the mechanics of the meetings of May 24, no less than the
speech itself, assured the formation of an "inside" union. The dele-
gates present had been selected, at the respondent's command, to
attend and to listen. None had been empowered by their constituents
to act. After imbuing- them with its desire that the employees
organize, the respondent "permitted"' them to remain and discuss the
matter. The respondent's actions converted the delegates, isolated
from their constituents and under the immediate influence of the
officials, into virtual representatives of the employer among the em-
ployees who had elected them: The respondent argues that the
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusal of its officials to indicate what kind of an organization the
employees should form is proof of its impartiality in that respect.
In its context, however, the refusal convinces us only that the respond-
ent did not care what kind of unaffidiated.organization the employees
might adopt. We find that at the May 24 meetings the respondent
urged its employees to organize and to do so independently of "out-
side" assistance, and that it thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
3. Organization of the I. O. E.
At the time of the events under discussion there had been little.
self-organization among the respondent's employees." The technique
employed by the respondent for stimulating the organization of an
"inside" union was highly successful.16 Within the week ensuing the
May 24 gatherings, meetings of employees were held in all the depart-
ments, frequently with the cooperation of supervisory employees-
The speech was there reported to the employees who immediately
voted to form an independent organization and elected 'representa--
tives for that purpose. The elected representatives, constituting-
themselves steering committees at Richmond and at Norfolk, -met
upon the respondent's premises in those cities on June 1." On June-
3, representatives from Richmond and Norfolk attended a meeting at.
Petersburg, where a committee of three was appointed to employ a
lawyer for the purpose of drawing up a constitution and bylaws for
an independent system-wide organization. On June 5 Eugene-
Underwood, a member of the Richmond steering committee, engaged
W. Earl White for this purpose.
Thereafter further meetings were held by the steering committees
in Richmond on June 9 and in Norfolk on June 7 and 11 for the
purpose of discussing and suggesting changes in the constitution and
bylaws drafted by White. On June 15 the Norfolk and Richmond
representatives met in the American Legion Hall in Richmond and
adopted the constitution and bylaws. The I. O. E. thereupon came
into existence. The constitution of the I. O. E. provided for 4
11 See section III A, supra.
16 At oral argument before the Board, counsel for the respondent in effect admitted
that the speech of May 24 gave impetus to the formation of the I. O. E.
11 Unless otherwise stated, all the meetings of the , Richmond and Norfolk steering com-
mittees prior to June 15 , 1937, were held on the premises of the respondent . During
the preliminary stages the members of the steering committees used the telephone facili-
ties and the bulletin boards of the respondent freely . In this connection the attitude
of the respondent towards the activities of outside organizations should be noted. When
an A. F. of L. organizer sought to solicit the respondent 's employees in 1933, he was
informed by Holtzclaw that he could not engage in any activity on the respondent's
premises and in- March 1937 Holtzclaw told L. E. _ Davis to instruct Parker . ' that : he
could not organize on the respondent 's premises.
VIRGINIA ELECTRIC & POWER COMPANY 925
divisions and 27 voting sections among the respondent's employees.
In the Norfolk division of the i espondent, employees in 14 voting
sections elected representatives to the 4 divisional committees, such
representatives constituting the Norfolk inter-departmental com-
mittee. The employees in the 13 voting sections of the Richmond
division of the respondent selected representatives to 3 of the 4
divisional committees, who constituted the Richmond inter-depart-
Iimlental committee. The divisional and inter-departmental commit-
tees elected from their own number representatives to the general
committee, the supreme body of the I. O. E.
On June 17 application cards for the I. O. E. were distributed
throughout the entire system, many of which were signed on the
respondent's premises during working hours. Within a period of ap-
proximately 3 weeks from the time the I. O. E. cards were first
circulated about 2,000 signatures were obtained.
On June 22 a general meeting of the Norfolk employees for the
purpose of explaining the constitution and bylaws of the I. O. E.
took place. On July 2 elections were held to nominate representa-
tives to the various committees of the I. O. E., and on July 12 the
elections of such officials took place. On July 13 the Norfolk steer-
ing committee announced the representatives of the voting sections of
the I. O. E. who had been elected and then dissolved. The voting
section representatives then voted for officers to the inter-departmental
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 inter-depart-
mental committee and representative to the general committee were
elected. Of the 29 representatives elected to the inter-departmental
committees of the I. O. E. approximately 20 had been present at a
reading of the May 24 address.
On July 17 and 18, 1937, the various inter-departmental and general
committeemen of the I. O. E. drafted a contract to be submitted to
the respondent.' On July 19 the I. O. E. notified the respondent that
it represented more than 50 per cent of the respondent's employees,
submitted a proposed contract, and requested that a date be set for
its discussion.
Negotiations on the contract between the representatives of the
I. O. E. and the officials of the respondent began on July 30. By
midnight of July 31, the officials of the respondent and the I. O. E.
had agreed on all of the provisions of the contract, with the exception
of the incorporation of a closed-shop provision and the amount of
the wage increases. Thereupon, the respondent agreed to grant the
I. O. E. a closed-shop provision 1B and the I. O. E. accepted a smaller
19 This provision stated in effect that all employees of the respondent must join the
I. O. E. within a 90-day period from the signing of the contract.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
increase in wages than it had originally demanded. On the follow-
ing day the parties drafted the wording of the contract and, after,
its ratification by the inter-departmental committees of the I. O. E.,.
signed it on August 5, 1937.19
On August 20, 1937, the respondent paid the I. O. E. $3,784.501
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 through--.
out 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 of its employees to join the I. O. E. by that date.-
4. Conclusions regarding the I. O. E.
We are of the opinion and we find that the I. O. E. owes its exist-
ence and its form to activities of the respondent. The May 24 meet-
ings and the address there delivered by Holtzclaw and Throckmorton
provided the initial impetus for subsequent organization. Within a
week meetings were held in practically all of the departments of the
respondent's system, at which the employees, pursuant to the sugges-
tions contained in the addresses of May 24, voted to form an inde-
pendent organization and elected representatives for that purpose.
Thereafter, meetings of the steering committees were held on the
premises of the respondent for the purpose of forming • an inde-
pendent system-wide labor organization. Bulletin boards of the re-
spondent were used for the posting -of notices of meetings, and
telephone connections of the respondent were used by the representa-
tives to communicate with each other. Within approximately three
weeks after the addresses, the constitution and bylaws of the I. O. E.
had been adopted and the organization set up. Within a period of
approximately three weeks from the time the I. O: E. cards were
first circulated in the plant of the respondent a majority of the
employees had signed as a result of the widespread solicitation on
the premises of the respondent throughout the entire system.
The respondent argues that it had no knowledge that the meetings
of the committees were being held on its premises, and that its execu-
tives did not give their consent to the use of its buildings and tele-
19 The contract , effective as of June 1, 1937, provided for a wage increase to the em-
ployees , overtime payments , a check-off of dues, a board of arbitration to adjust griev-
ances, and permitted the I . O. E. to erect bulletin boards on the respondent 's property.
The contract was to last for 1 year and thereafter from year to year, unless terminated
by either party by 30 days ' notice before the end of any annual period . On April 28,
1938, a conference was held by representatives of the I. O. E. and the respondent con-
cerning prospective changes in the contract . A copy of the complaint in the instant
proceedings was served on the parties on May 9, 1938. It was thereafter agreed that
if neither party gave notice of intention to terminate the contract by May 26, 1938, the
contract would continue unchanged . The contract was automatically renewed for Q
second year when neither party gave such notice.
VIRGINIA ELECTRIC' cC POWER COMPANY 927
phone facilities for this purpose. However, because of the large
number of meetings , accounts of which appeared in the local news-
papers, we are of the opinon that the respondent was aware that
they were taking place and gave -tacit, if not express , consent to the
use of its premises.
The respondent further argues that only the preliminary meetings
of the committees were held on the respondent 's premises , that the
1. 0. E. did not come into existence until June 15, 1937, when its
constitution and bylaws were adopted , and that meetings were not
held on the premises of the respondent subsequent to that date. An
examination of the development of the I. 0. E. shows , however, that
there was a continuity in the personnel of that organization , begin-.
ning with the selection of the representatives to attend the May 24
meetings and continuing to the elections of the officials of the I. 0. E.
The steering committees performed the basic work of drafting and
approving the constitution and bylaws of the organization and con-
ducting the elections . It was not until the officers of the I. 0. E.
were installed that the steering committees were dissolved . There-.
after, at the meetings of the I. 0. E. held on July 17 and 18 that
organization ratified the acts and assumed all of the assets , debts, and
obligations incurred by the steering committees.
The respondent also contends that the negotiations between the
respondent and the I. 0. E. concerning the terms of the contract were
carried on at arm's length, and in support of this contention points
to the increase won by the employees. It may be recalled, in this
connection , that at the May 24 meeting in Richmond , Holtzclaw in-.
dicated that a wage increase might be granted . It may well be that
the respondent intended to increase wages in any event. In the
light of the entire record the outcome of the negotiations does not
alter our conviction that the I. 0. E. was employer-dominated.
We find that the respondent has dominated and interfered with the
formation and administration of the I. 0. E. and has contributed
support to it ; that it has thereby interfered with , restrained, and
coerced its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
D. The discharges
Josep/ Bolton was employed by the respondent in September 1926
as a bus operator in the Norfolk division. He was discharged .on
January 13, 1938. In his Intermediate Report the Trial Examiner
found that the respondent's discharge of Bolton was not discrimina-
tory and recommended that the complaint as to him be dismissed.
We agree with the Trial Examiner's finding. The Amalgamated,
which had filed the charges-as to Bolton, filed no exceptions to the
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report. We shall accordingly dismiss the complaint
in so far as it alleges that by discharging Bolton the respondent dis-
criminated in regard to his hire and tenure of employment.
Everard M. Mann was employed by the respondent as a street-car
operator in Norfolk on July 29, 1936. On November 8, 1936, his
wages were increased from 43 to 46 cents an hour. At a -meeting of
Norfolk transportation employees held on the respondent's premises
on May 11, 1937, for the purpose of discussing proposed changes in
their working conditions, Mann protested vigorously . against the for-
mation of an inside union, advocated that the employees affiliate with
either the T. W. U. or the Amalgamated, and stated that he preferred
the T. W. U., which he joined shortly after the meeting. There-
after, he vigorously urged his fellow employees to organize a union
having national affiliation.
On May 27, 1937, Mann, who had spoken to Bishop a few days
previous with reference to obtaining a loan of $50 from the respondent
to bring a sick sister to Virginia from Pennsylvania, walked into
the dispatcher's office and asked the employees present, "Has anybody
seen this guy Bishop ?" Bishop, who was present in the office reading
a newspaper, lowered it, and the dispatcher said, "Why, there is
Mr. Bishop." Mann looked at Bishop but said nothing and walked
out. On June 1, 1937, Bishop discharged Mann on the ground that .
the latter had been disrespectful to him.
Bishop stated at the hearing that by referring to him as "this guy
Bishop" in his presence, Mann did not exhibit the respect necessary
to maintain discipline among the employees, and that Mann's failure
to apologize to him induced him to discharge Mann, after he had
discussed the incident with Throckmorton. Bishop also stated that
Mann had had a number of accidents, which, although not the cause
of his discharge, nevertheless militated against Bishop's overlooking
this "offense.720
We are of the opinion that Mann was discharged because of his
union activities and not because of the incident relied upon by Bishop.
As stated above, Mann was one of the first employees to take a firm
stand against the formation of an inside organization and to advocate
the formation of an outside union. We believe that his discharge,
about two weeks after the meeting, was intended as a warning to
the other employees who might also desire the formation of an outside
union. Moreover, it is clear that Mann did not intend any affront to
25 An examination of the employment record of Mann, shows that all of such accidents
were minor affairs and caused little expense to the respondent , with the exception of
those which occurred on September 21 and 23, 1936 . The first cost the respondent $314
and the other $ 65. Mann stated that the accident of September 21, 1936, occurred
when an aged lady injured herself when alighting from the rear door of a one -man street
car. The accident of September 23, 1936, appears to be of a similar nature. Mann was
not warned by Bishop when the accidents occurred.
VIRGINIA ELECTRIC & POWER COMPANY 929
Bishop when he inquired as to the whereabouts of "this guy Bishop,"
because the very question reveals that he was unaware of Bishop's
presence. We believe that the respondent seized upon the incident
as a pretext to get rid of Mann. Although Bishop stated that he
had no knowledge of Mann's union activity, Warren Bishop, his son,
was present throughout the May 11 meeting. 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 his admission that in 1936 he questioned about 15 em-
ployees concerning their union activity, 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,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Mann desires reinstatement with the respondent. At the time of
his discharge Mann was receiving $55 every 2 weeks. Since his dis-
charge he has earned $195.
A. F. Staunton was hired in October 1936 as a first-class lineman
in the Norfolk Cove Street department. He was an active member
in the I. B. E. W. subsequent to. his joining it in June 1937. On
November 4, 1937, William Crafton, superintendent of distribution
in Norfolk, told Staunton he would have to join the I. O. E. or quit.
Thereupon Staunton left the respondent's employ.
The respondent argues that it did not discharge Staunton, but
that the latter quit. We have found, however, that the respondent
dominated and interfered with the formation and administration of
the I. O. E. The respondent's agreement with the I. O. E. was,
accordingly, entered into with a labor organization assisted by unfair
labor practices. The provision of the agreement requiring member-
ship in the I. O. E. as a condition of employment is therefore outside
the scope of the proviso in Section 8 (3) of the Act 21 and its applica-
tion by the respondent constitutes discrimination in regard to hire
and tenure of employment. By requiring Staunton to choose be-
21See Hamilton-Brown Shoe Co. v. National Labor Relations Board, 104 F. (2d) 49
W. C. A. 8), mod'g and aff 'g Matter of Hamilton -Brown Shoe Co. a corporation and
Local No. 125, United Shoe Workers o f America, affiliated with the Committee for Indus-
trial Organization , 9 N. L. R. B. 1073 ; National Labor Relations Board v. National Motor
Bearing Co. et al ., 105 F. ( 2d) 652 (C. C. A. 9), mod'g in part , set'g aside in part, en-
forcing in part, Matter of National Motor Bearing Company and International Union
United Automobile Workers of America, Local No. 76, 5 N. L. R. B. 409; International
Association of Machinists v. National Labor Relations Board, 110 F. (2d) 29 (App. D. C.),
aff'g Matter of The Serrick Corporation and International Union, United Automobile Workers
of America , Local No . 459, 8 N . L. R. B. 621.
930 DECISIONS OF NATIONAL- LABOR RELATIONS BOARD
tween joining the I. O. E. and quitting, the respondent imposed a
discriminatory and illegal condition to his continued employment.
Its action must be viewed as a discharge.
We find that on November 4, 1937, the respondent discharged A. F.
Staunton because he refused to join the I. O. E., thereby discriminat-
ing in regard to hire and tenure of employment, encouraging mem-
bership in the I. O. E., discouraging membership in the I. B. E. W.,
and interfering with, restraining, and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
The respondent also argues that after Staunton's employment with
the respondent terminated he obtained substantially equivalent em-
ployment elsewhere. At the time of his discharge Staunton was
receiving $75 every 2 weeks. Subsequent to leaving the respondent,
Staunton obtained a job with a construction firm in Pennsylvania at
a higher salary than that which he received from the respondent. At
the hearing Staunton stated that he desired to be restored to his
former position with the respondent. We are of the opinion that
Staunton's desire to, be reinstated at the respondent's plant should
be given weight in determining whether he has obtained substantially
equivalent employment. We find that he has not.22
Robert E. Elliott, Jr., was employed by the respondent as a, motor-
coach operator for several months in 1930, 1931, and 1932, and con-
tinuously from May 18, 1934, until November 4, 1937. On the latter
date the respondent discharged him because he refused to join the
I. O. E. Elliott played a prominent part in the organizational activ-
ities of the respondent's Norfolk transportation employees during
May and June 1937. Largely through his efforts those employees
remained apart from the I. O. E. until late in June. In that month,
when the employees joined the I. O. E., Elliott became a member
of the T. W. U. and its first president. About the middle of July
1937 he joined the Amalgamated. On November 1, 1937, Elliott
was involved in an accident in which he sustained injuries. ' He
remained away from work until after November 4 on which day the
respondent discharged him.
Although the respondent does not deny that it discharged Elliott
because of his refusal to join the I. O. E., it argues that it would
have discharged him in any event because of the accident of Novem-
ber 1, which resulted in the loss of $75 in money and passes. Officials
of the respondent testified that they had made an investigation of
22 See Matter of Pulaski Veneer Corporation and United Brotherhood of Carpenters
and Joiners of America, Local Union #1862, 10 N. L. R. B. 136; Matter of L. C.
Smith and Corona Typewriters, Inc. and International Metal Polishers, Buffers and
Platers Union of North America, 11 N. L. R. B. 1382; Matter of Eagle-Picker Mining
& Smelting Co. a corporation , and Eagle -Picker Lead Company, a corporation and Inter-
national Union of Mine, Mill and Smelter Workers, Locals Nos. 15, 17, 107, 108, and 111,
16 N. L. R. B. 727.
VIRGINIA ELECTRIC & POWER COMPANY 931
the accident, but were unable to locate any of the persons mentioned
in the report, and that it was unusual for a party not to seek remu-
neration from the respondent in an accident of this nature.
The record reveals, however, that Elliott had been awarded a
prize for being the most careful and efficient operator in 1936, and
-that although he had been in an accident on April 12, 1937, which
-resulted in the loss of approximately $125 in money and passes, the
respondent did not withhold any of his money or threaten him with
.any disciplinary action on that occasion. Elliott's employment card
states as the reason for the discharge his refusal to join the I. O. E.,
and Raymond Carroll, the manager of the respondent's Norfolk
transportation division, admitted on cross-examination that the acci-
dent of November 1 had nothing to do with Elliott's discharge.
We are of the opinion that the respondent's contention is an after-
thought and that it would not have discharged Elliott had he joined
the I. O. E. For the reasons stated in the discussion of the case of
Staunton, above, the respondent's action in discharging Elliott con-
stituted discrimination in regard to his hire and tenure of
employment.
We find that by discharging Robert E. Elliott, Jr., for refusing
to join the I. O. E. the respondent discriminated in regard to his
hire and tenure of employment, thereby encouraging membership
in the I. O. E., discouraging membership in the T. W. U. and the
Amalgamated, and interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
Elliott desires to be reinstated by the respondent. At the time
of his dismissal he was receiving 60 cents an hour from the respond-
ent. Subsequent to his discharge he worked as a reporter with the
Norfolk "Labor Journal" for several weeks, and then became an
organizer for the Amalgamated,' beginning January 1, 1938, at a
slightly higher salary than that which he received from the respond-
ent. Since this work is entirely different from the work he was
performing for the respondent and is only temporary in nature, it
is evident and we find that he has not obtained substantially equiva-
lent employment.
T. N. Harrell, Jr. and J. L. Judge were employed by the respondent
in April 1936 as temporary linemen's helpers in the Cove Street divi-
sion at Norfolk. Early in 1937 both men received a 5 cents per hour
wage increase for good work, and both later shared in the general
wage increase resulting from the -respondent's contract with the
I. O. E. which raised their wages to 561/2 cents per hour. On Novem-
ber 1, 1937, Judge and Harrell were transferred to the respondent's
- roll of permanent employees and Judge received another raise in
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay of 41/2 cents per hour. The respondent laid off both men on
March 31, 1938.
The I. B. E. W. began to organize the respondent's employees
in June 1937 and Judge and Harrell joined the organization on
June 25, 1937. Their activities as advocates of employee self-organ-
ization were such as to call them to the attention of the management.
Thus, Harrell, shortly after a meeting of employees held in the Cove
Street plant in May 1937, told Theodore May, the general foreman
of the electrical-distribution department at Norfolk, that he dis-
approved of the formation of an inside union (for which purpose
the meeting had been called) and intended to join an outside union.
May replied that he saw no reason why a man should join an outside
union and that he had never seen any good resulting from such an
organization. Harrell thereafter became a charter member of the
I. B. E. W., solicited membership in that organization, and dis-
paraged the I. O. E. among his fellows. Judge, too, was conspicuous
in union affairs. In August 1937. he was elected financial secretary
and treasurer of the I. B. E. W. On August 16, 1937, Craftoh or-
dered Staunton and Judge to remove an I. B. E. W. notice, signed
by them, from the respondent's bulletin board.23 In March 1938,
just prior to their lay-offs, Judge and Harrell were leaders in an
intensive membership drive conducted by the I. B. E. W.
The respondent introduced evidence showing that the Cove Street
division had been engaged in an extensive rural electrification- pro-
gram in Virginia and North Carolina during 1936 and 1937; that
around the beginning of March 1938 this work had been practically
completed; that it was therefore necessary to reduce the number
of employees; and that oil March 31, 1938, the respondent. laid off
in the Cove Street division 13 employees, among whom were Judge
and Harrell. W. V. Holik, superintendent of light and power in
Norfolk and Portsmouth, Crafton, and May, the supervisory officials
of the Cove Street division, testified that in determining the em-
ployees who should be laid off they took into consideration their
experience and ability, their financial status and dependents, and
their ability to get along with the other employees.
The respondent contends that Harrell was laid off because he was
surly and ill-tempered, that he could not get along with his fellow
employees, and that he had not progressed as rapidly as the workers
whom it retained. However, the record reveals that Harrell's un-
popularity with his fellow employees was caused principally by his
constant efforts to disparage and discredit the I. O. E. and to promote
z, On this occasion Crafton told them that no notices of the I. B. E . W. could be posted
until the I . B. E. W. secured a contract with the respondent . Since the agreement of
August 5, 1937, permitted the I. O. E. to erect its own bulletin boards this act of Grafton
was a denial to the I. B. E. W. of a privilege theretofore granted to the I. O. E.
VIRGINIA ELECTRIC & POWER COMPANY 933
the I. B. E. W.; that in the past when friction had arisen among
the employees and foremen the respondent had attempted to solve
such difficulty by transferring the employees to different crews; that
the supervisory officials who laid off Harrell never made any investi-
gation of the incidents in which Harrell was involved to determine
the extent to which lie was responsible for them; that Harrell's
advancement with the respondent was impeded by an injury which
he suffered while working for the respondent; that several foremen
for whom Harrell worked testified that he carried out their instruc-
tions without causing any trouble; that he was a married man with
one dependent; and that Harrell had more seniority than five of the
eight third-class linemen whom the respondent kept.
Upon the entire. record, we are unable to accept the respondent's
contention concerning the lay-off of Harrell and are of the opinion
that the respondent terminated his employment because of his mem-
bership and activity on behalf of the I. B. E. W.
We find that the respondent by laying off T. N. Harrell, Jr., dis-
criminated in regard to his hire and tenure of employment, thereby
discouraging membership in the I. B. E. W., and interfering with,
restraining, and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
Harrell desires reinstatement with the respondent. At the time of
his discharge he was receiving 561/2 cents an hour. He has had no
earnings since his lay-off.
The respondent argues that Judge was laid off because he was the
junior second-class lineman. Holik and Crafton testified that in
October 1937, after Judge, Ambrose Fowler, his foreman, and William
Faust, an official of the I. O. E., asked Holik to give Judge an in-
crease in wages, Holik instructed Crafton to raise Judge's .wages by
41/2 cents an hour; that Crafton made out a pay-roll slip providing
for the increase, which was sent to the, respondent's Richmond office;
that the slip was returned to Norfolk with a notation that since all the
third-class linemen were being paid 561/2 cents an hour Judge would
have to be made a second-class lineman in order to receive the increase;
that Holik then corrected the slip so as to make Judge a second-class
lineman; and that the changed status and increase became effective as
of November 1, 1937. Holik and Crafton also asserted that the sec-
ond-class linemen whom the respondent retained had been with it for
a period of three years or longer than Judge.
The record reveals that Judge, the only second-class lineman in the
Norfolk electrical division to be laid off, was a competent, conscientious,
and satisfactory employee whose advancement had been very rapid ;
that he was a married man with three dependents; and that he was
the last employee to become a second-class lineman.
283031-41-vol. 20-60
'934 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although the respondent had not applied a seniority rule in the
past, its application of such a rule in the case of Judge does not, in
itself, persuade us that it discriminated against him because of his
I. B. E. W. activities. Judge was given a salary increase and a pro-
motion some time after he became an officer of the I. B. E. W.
We find that the respondent, by laying off J. L. Judge, did not dis-
-criminate in regard to his hire and tenure of employment and shall
dismiss the allegation of the complaint that it did so.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section_III above, oc-
,curring in connection with the operations of the respondent described
in Section I above, have a close, intimate, and substantial relation to
trade, traffic, commerce, transportation, and communication among the
several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THFrREMEDY
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. 0. 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, we shall order the respondent to withdraw all recogni-
tion 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 conditions of employment, and completely to disestablish it as
such representative.24 Since the contract between the respondent and
the I. 0. E. embodying recognition of the I. 0. E. as such representa-
tive was entered into with an organization brought into existence
by unfair labor practices of the respondent, we shall order the re-
'spondent to cease and desist from giving effect to the contract hereto-
fore described or to any extension, renewal, modification, or supple-
ment thereof, or any successor contract with the I. 0. E. which may
24 See Consolidated Edison Co. v. National Labor Relations Board, 305'U. S. 197, 236
11938) National Labor Relations Board V. Pennsylvania Greyhound Lines, 303 U. S. 261
(1938) ; National Labor Relations Board v. Pacific Greyhound, 303 U. S. 272 (1938) ,
National Labor Relations Board v. Newport News Shipbuilding & Dry Dock Company,
.303 Ti. S. 54, decided December 4, 1939.
VIRGINIA ELECTRIC' & POWER COMPANY 935
now be in force.25 The contract of August 5, 1937, provided for a
check-off and the respondent has deducted from the wages of those
employees who were members of the I. 0. E. dues for the I. 0. E.
We shall order the respondent to reimburse the employees who were
members of the I. 0. E. for the dues and assessments , if any, which
the respondent has deducted from their wages on behalf of the 1. 0. E.26
Since we have found that the respondent's discharges of Everard
M. Mann, Robert E. Elliott, Jr., and A. F. Staunton, and lay-off of
T. N. Harrell, Jr., were unfair labor practices, we shall direct the
respondent to reinstate each of them to his former position, without
prejudice to his seniority and other rights and privileges. We shall
further order the respondent to make whole Malin and Harrell 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 reinstatement, less his net earnings 27 during said period. Al-
though finding that the discharges of Elliott and Staunton were vio-
lations of Section 8 (1) and (3) of the Act, the Trial Examiner in his
Intermediate Report made no recommendation for their reinstate-
ment on the ground that they had obtained regular and substantially
equivalent employment subsequent to their discharges. As stated
above, we do not agree with the Trial Examiner's conclusion that the
two men secured regular and substantially equivalent employment.
Even if we shared that view, however, we should order, and we shall
order, that Elliott and Staunton be reinstated by the respondent with
back pay.28 In view of the absence of such a recommendation by the
25 See National Labor Relations Board v . Stackpole Carbon Co., 105 F. (2d) 167
C. C. A. 3 ) mod'g and eiif 'g Matter o f Stackpole Carbon Company and United Electrical
& Radio Workers of America , Local No. 502, 6 N. L. R. B . 171, cert. den . 308 U . S. 605. See
also cases cited in footnote 21, supra.
26 See Matter of The Heller Brothers Company of Newcomerstown and International
Brotherhood of Blacksmiths, Drop Forgers and Helpers , 7 N. L. R. B. 646; Matter of
Lone Star Bag and Bagging Company and Textile Workers Organizing Committee, 8
N. L. R. B . 244 ; Matter of The Western Union Telegraph Company, a corporation and
American Communications Association , 17 N. L. R. B. 34 , petition for review filed
November 2, 1939, (C. C. A. 2).
27 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 dis-
charge and the consequent necessity of his seeking employment elsewhere . See Matter of
Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of America,
Lumber and Sawmill Workers Union, Local 2590, 8 N. L. R . B. 440 . Monies received for
work performed upon Federal , State, county , municipal , and other work-relief projects are
not considered as earnings but as provided below in the Order shall be deducted from
the sum due the employee and the amount shall be paid over to the appropriate fiscal
agent of the Federal, State , county , municipal , or other government or governments which
supplied the funds for said work-relief projects.
2e See Matter of Eagle-Picher Mining & Smelting Company, a Corporation , and Eagle-
'Picher Lead Company, a Corporation and International Union of Mine, Mill & Smelter
Workers, Locals Nos. 15, 17, 107, 108, and 111, 16 N. L. R. B . 727, wherein the Board
stated: "The respondents contend that only 'employees ' within the meaning of Section
936 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner, however, the respondent could not have been expected
to offer Elliott and Staunton reinstatement. We shall accordingly
direct that the period from the date of the Intermediate Report to the
date of this Order be excluded in the computation of the back pay due
them.z"
Upon the basis of the foregoing findings of fact and upon the en-
tire record in the proceeding, the Board makes the following :
CoNCLIISIONS OF LAW
1. Transport Workers Union of America, Amalgamated Associa-
tion of Street, Electrical Railway, and Motor Coach Employees of
America, International Brotherhood of Electrical Workers, and In-
dependent Organization of Employees of Virginia Electric and Power
Company, are labor organizations within the meaning of Section
2 (5) of the Act.
2. By dominating and interfering with the formation and admin-
istration of 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 prac-
tices, within the meaning of Section 8 (2) of 'the Act.
3. By discriminating in regard to the hire and tenure of employ-
ment of Everard M. Mann, Robert E. Elliott, Jr., A. F. Staunton,
and T. N. Harrell, Jr., and thereby discouraging membership in
Transport Workers Union of America, Amalgamated Association of
Street, Electrical Railway, and Motor Coach Employees of Amer-
ica, and International Brotherhood of Electrical Workers, and en-
couraging membership in Independent Organization of Employees
of Virginia Electric and Power Company, the respondent has en-
gaged in and is engaging in unfair labor practices, within the mean-
ing of Section 8 (3) of the Act.
4. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning of Section 8 (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning' of Section 2 (6) and (7)
of the Act.
2 (3) fall within the jurisdiction of the Board for purposes of remedial action , and that
those who have obtained such regular and substantially equivalent employment are not
such employees . While Section 10 (c) provides for reinstatement of 'employees' we do
not believe that those claimants who have obtained regular and substantially equivalent
employment thereby became remediless , either for the purposes of back pay or for pur-
poses of future employment by the respondent."
° Cf. Matter of E. R. Hafpelfin(ier, Inc. and United Wall Paper Crafts of North America,
Local No. 6 , 1 N. L. R. B. 760; Matter of Kentucky Firebrick Company and United Brick
and Clay Workers of America , Local Union No. 510, 3 N. L. R . B. 455, enf'd National
Labor Relations Board v. Kentucky Firebrick Co., 99 F. ( 2d) 89 (C. C. A. 6).
VIRGINIA ELECTRIC' & POWER COMPANY 937
6. By discharging Joseph Bolton and laying off J. L. Judge, 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 respond-
ent, Virginia Electric and Power Company, Richmond, Virginia, and
its officers, agents, successors, and assigns shall:
1. Cease and desist from :
(a) In any manner dominating or interfering with the adminis-
tration of 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 Independent Organization of Employees of Virginia Electric and
Power Company, or any other labor organization of its employees;
(b) In any manner giving effect to its contract heretofore described
with Independent Organization of Employees of Virginia Electric
and Power Company or to any extension, renewal, modification, or
supplement thereof, or to any successor contract with 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 em-
ployees, or encouraging membership in Independent Organization
of Employees 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, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, or to engage in con-
certed 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 Independent Organization of
Employees of Virginia Electric and Power Company as the rep-
938 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
resentative 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 Independent. Organization of Employees of
Virginia Electric and Power Company as such representative;
(b) Offer to Everard M. Mann, Robert E. Elliott, Jr., A. F.
Staunton, and T. N. Harrell, Jr., immediate and full reinstatement
to their former positions without prejudice to their seniority and
other rights and privileges ;
(c) Make whole Everard M. Mann and T. N. Harrell, Jr., and
each of them for any loss of pay he may have suffered by reason of
the respondent's discrimination against him by payment to each
of them 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 offer of reinstatement, less his net earnings during said
period; deducting from the amount otherwise due him monies re-
ceived. by him during said period for work performed upon Federal,
State, county, municipal, or other work-relief projects; and pay over
the amount so deducted to the appropriate fiscal agency of the Fed-
eral, State, county, municipal, or other government or governments
which supplied the funds for said work-relief projects;
(d) Make whole Robert E. Elliott, Jr., and A. F. Staunton, and
each of them for any loss of pay he may have suffered by reason
of the respondent's discrimination against him, by payment to each
of them of a sum of money equal to that which he normally would
have earned from the date of his discharge to the date of the Inter-
mediate Report and from the date of this Order to the date of the
respondent's offer of reinstatement, less his net earnings during said
periods; deducting, however, from the amount otherwise due him
monies received by him during said periods for work performed upon
Federal, State, county, municipal, or other work-relief projects; and
pay. over the amount so deducted to the appropriate fiscal agency of
the Federal, State, county, municipal, or other government or gov-
ernments which supplied the funds for said work-relief projects;
(e) Reimburse each of its employees who were members of Inde-
pendent Organization of Employees of Virginia Electric and Power
Company for all the dues and assessments, if any, which it has
deducted from their wages on behalf of Independent Organization
of Employees of Virginia Electric and Power Company;
(f) Post immediately in conspicuous places throughout the re-
spondent's system and maintain for a period of at least sixty (60)
consecutive days notices to its employees stating that the respondent
will cease and desist as provided in paragraph 1, that it will take
the affirmative action set forth in paragraphs 2 (a), (b), (c), (d),
VIRGINIA ELECTRIC' & POWER COMPANY 939
and (e) of this Order, 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
Electrical 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.
IT IS FURTHER ORDERED that the allegations of the complaint with
respect to Joseph Bolton and J. L. Judge be, and they hereby are,
dismissed.
MR. WILLIAM M. LEISERSON took no part in the consideration of the
above Decision and Order.