West Texas Utilities Co.

National Labor Relations Board - Board Decisions

Jul 13, 1943

51 N.L.R.B. 269 (N.L.R.B. 1943)

In the Matter Of WEST TEXAS UTILITIES COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 1044
Case No. C-2603.-Decided July 13, 1943
DECISION
AND
ORDER
On May 5, 1943, the Trial Examiner issued his, Intermediate Report
in the above-entitled proceeding, finding that the respondent had
engaged in and was engaging in certain unfair labor practices, and
recommending that it cease and desist therefrom and that it take cer-
tain affirmative action, as set forth in the copy of the Intermediate
Report annexed hereto. Thereafter, the Union filed exceptions to
the Intermediate Report and a brief in support of the exceptions.
No request for oral argument before the Board was made by any of
the parties. The Board has considered the rulings made by the Trial
Examiner at the hearing and finds that no prejudicial error was com-
mitted. The rulings are hereby affirmed.
The Board has considered the Intermediate Report, the Union's
exceptions and brief, and the entire record in the case and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, with the additions noted below:
1. L. M. Smith, an employee in the Childress office of the respondent,
testified that in or about January 1941, at the time when the Union
commenced to organize the employees at the Quanah and Childress
districts of the respondent, Brewer, the district manager at Childress,
stated to him and employee Browning that it was Brewer's hope that
a labor organization would never be established in his district and that
he "would rather be out of business than have to go through with
that." Brewer did not deny that he may have made such a statement,
testifying only that he had no recollection of doing so. While this
incident is discussed by the, Trial Examiner in his Intermediate
Report, he has made no finding as to the occurrence of the event. We
believe that the evidence warrants a finding, and we hereby so find,
that Brewer made the statement as testified to by Smith. We further
find that by Brewer's statement the respondent has interfered with,
51 N. L. R. B., No. 58.
269
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
restrained , and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, West Texas Utilities Com-
pany, Abilene, Texas, its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) In any 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, and to engage in concerted
activities, for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Immediately post in conspicuous places in its offices and shops
maintained by it through the Childress and Quanah districts in the
State of Texas, and maintain for a period of at least sixty (60) con-
secutive days from the date of posting, notices to its employees stating
that the respondent will not engage in the conduct from which it is
ordered to cease and desist in paragraph 1 (a) of this Order;
(b) Notify the Regional Director for the Sixteenth Region in
writing within ten (10) days from the date of this Order, what steps
the respondent has taken to comply herewith.
INTERMEDIATE REPORT
E. P. Davis and Robert F. Proctor, for the Board.
A. S. Doss and Scott Snodgrass, of Abilene, Texas and San Angelo , Texas, for
the respondent.
J. W. Null, of Abilene, Texas, for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on August 21, 1942, by International Brotherhood
of Electrical Workers, Local 1044, affiliated with the American Federation of
Labor, herein called the Union, the National Labor Relations Board, herein
called the Board, by the Regional Director for the Sixteenth Region (Fort
Worth, Texas), issued its complaint dated March 24, 1943, against the West
Texas Utilities Company, a corporation, herein called the respondent , alleging
that the respondent had engaged in and was engaging in unfair labor practices
affecting commerce within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. copies of the complaint, accompanied by notice of hearing thereon were
duly served upon the respondent, and the Union.
WEST TEXAS UTILITIES COMPANY 271
With respect to the unfair labor practices, the complaint as amended alleged
in substance : that on or about August 1, 1942, the respondent discharged and
has since refused to reemploy L. W. Browning because he had engaged in
concerted activities for the purposes of collective bargaining ind other mutual
aid or protection ; (2) that the respondent by the above and other specified
acts' interfered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act. On April 5, 1943, the respondent
filed its answer, in which it denied that it was engaged in commerce within
the meaning of the Act and also denied the material allegations of the com-
plaint with respect to the unfair labor practices.
Pursuant to notice, a hearing was held at Childress, Texas, from April 5 through
April 9, 1943, before the undersigned, the Trial Examiner duly designated by the
Chief Trial Examiner. The Board and the respondent were represented by
counsel, and the Union by a representative. All participated in the hearing and
full opportunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties. At the open-
ing of the hearing counsel for the respondent moved that the complaint be
dismissed on the ground that the respondent was not engaged in commerce within
the meaning of the Act. The motion was denied without prejudice subject to
later renewal. The respondent further moved to strike the allegations in para-
graph 9 2 of the complaint for the reasons: (1) that the allegations were not
supported by the charge filed; and (2) for the further reason that the allegations
were not definite and certain. The motion was denied as to the first objection
raised and the Board was requested to furnish further particulars concerning
the general allegations set forth in the said paragraph. Counsel for the Board
offered an amendment to the said paragraph 9 and the paragraph as amended was
read into the record. Counsel for the respondent objected to the sufficiency of
the allegations of said paragraph 19, as amended, which objection was overruled
subject to a further ruling that a motion for a reasonable continuance would be
considered, in the event the respondent claimed surprise, if offered at the close
of the Board's case. At the close of the Board's case, the respondent's counsel
moved for continuance of one-half a day for further preparation and the con-
tinuance was granted. The Board's motion to conform the pleadings to proof.
in so far as errors as to names and dates were concerned, was granted without
objection. Counsel for the respondent renewed the two motions made at the
opening of the hearing. The motion to dismiss on jurisdictional grounds was
denied and the motion to strike the allegations in paragraph 9, as amended, were
taken under advisement and are hereby denied. The parties were advised that
3 These allegations, in substance, were that the respondent by its officer or agents
(a) inquired of an employee, "what did you join that Union for?-You are just spending
your money foolishly in the Union ;" (b) stated to an employee that he knew a union
meeting had been held the previous night and was glad to learn that an employee who
had attended had decided tt quit the Union, that some of the boys were going to get into
trouble fooling with the Union; (c) stated that the Union was no good and was against
the company, that it was un-American and was causing strikes ; that it took the employees'
money and paid no benefits for them; that the organizers were all crooks; (d) stated to
an employee that "you had better not stick your neck out too far, as it won't be 6 or 8
months until some of you fellows will be the sickest bunch anybody ever saw and that
the company could contract out all of the work that the line men are now doing" ;
(e) stated that, if an employee wanted to remain working that he should get out of that
union mess and requested an employee to chase fellow employees out of the shop whenever
he heard them talking about that damn union stuff; (f) stated to an employee, "I would
get out of that Union If I were you. Somebody is going to lose their job if this union
stuff does not stop."
2 Paragraph 9 of the original complaint alleged generally that the respondent disparaged
the Union and discouraged membership in it.
272 DECISIONS OF NATIONAL LABOR RE'LA!IIONS BOARD
they might make oral argument and file briefs. No oral argument was had, but
the respondent was granted 15 days time to file a brief. No brief or request for
an extension of time to file a brief has been received by the undersignned.
Upon the record thus made and from his observation of the,witnesses, the
undersigned makes, in addition to the above, the following :
FINDINGS OF FACT
I I. THE BUSINESS OF THE RESPONDENT
The respondent is a subsidiary of the Mid-West Corporation, and is a Texas
corporation, with its principal office at Abilene, Texas. Its assets amount to
approximately $45,000,000, and it operates through an area of 45,000 square miles
in 49 counties of Western Texas, providing electricity, water or ice service in
166 cities and communities.
The respondent maintains electrical generating plants of an aggregate capacity
of approximately 53,000 kilowatts including 3 steam power plants, one at San
Angelo, with a capacity of 25,000 kilowatts ; one at Abilene with a capacity of
5,000 kilowatts, and one near Quannah with a capacity of 15,000 kilowatts, and
16 smaller electric generating plants, including 14 operated by Diesel power, of
which 15 are used for stand-by purposes ; 2,608 miles of intergrated electric trans-
mission lines ; 13 ice plants ; 7 water plants, with 140 miles of mains.
Throughout the entire system, respondent had approximately 800 employees ; in
1942, electricity totaling, approximately 300,000,000 kilowatt hours was generated
and a gross revenue of approximately $5,000,000 was realized from its sale to
13,265 commercial, municipal, and industrial, and approximately 39,000 domestic
customers.
Approximately 902,000,000 gallons of water were distributed to approximately
8,237 customers, yielding a total income of approximately $263,408.
For customer service and routine local distribution, the respondent's system
is divided into nine districts. 3
The respondent, in the course of its operations during 1942, used materials
and supplies, exclusive of water and of fuel for its steam and Diesel plants,
of an aggregate value of $170,000. Of this total approximately 20 percent was
received from points outside Texas, and additional commodities, to the value
of $215,399, or approximately 58 percent, were manufactured outside of Texas
but delivered from warehouses in Texas. In 1942, the respondent received ap-
pliances for resale to the value of approximately $170,000, of which articles,
approximately 7 percent came directly from manufacturers outside of Texas, and
additional articles, or approximately 92 percent, were manufactured outside of
Texas, but were delivered from warehouses within Texas.
The respondent also generates power- and sells it to the Southwestern Light
& Power Company of Oklahoma. The current purchased by the Southwestern
Light & Power Company is transmitted over power lines owned by the respond-
ent, but held under leases by the Southwestern Light & Power Company of Okla-
homa, from properties of the respondent In Texas, through Quannah and to
points on the Texas side of the Red River, the Texas-Oklahoma boundary, through.
Hardeman and Wilbarger Counties, Texas, to transmission lines owned and
operated by the Southwestern Light & Power Company of Oklahoma, which
receives such energy on lines and equipment owned by it on the Texas side of
the Texas-Oklahoma boundary. The energy received by the Southwestern Light
& Power Company of Oklahoma is transmitted' by it over its own lines across
3 In the present proceedings only district I9, the Quannah district and district J, the
Childress district are involved.
WEST TEXAS UTILITIES COMPANY 273
the boundary from Texas into Oklahoma. The energy is metered at the Quannali
and Vernon sub-stations. Relays are installed which prevent any flow of
power from the lines of the Southwestern Light & Power Company of Oklahoma
back to the lines of the West Texas Utility Company.
At Cisco, Putman , Baird , Clyde, Abilene, Merkle and Trent , the respondent
supplies electricity to the Texas & Pacific Railway Company , which is engaged
at those points in transporting passengers and freight in interstate commerce.
This power is used for the operation of automatic electric block signals, and for
lighting and operation of stations and other structures on terminal lands.
The respondent also supplies power at various points to the Missouri-Kansas-
Texas Railway Company, the Wichita Valley Railway Company, the Santa Fe
Railway Company, the Abilene and Southern Railway Company, and the St
Louis-San Francisco Railway Company.
The respondent supplies electric energy for the operation of oil pipe lines to
the Shell Pipe Line Corporation and the Humble Pipe Line Company; the trunk
line of the Shell Pipe Line Corporation runs from Hobbs, New Mexico, to a tank
farm at Wink, Texas, where there are two branches, one going to Houston,
Texas, and the other to Cushing, Oklahoma. The former line runs through
McCamey, El Dorado and Menard, at which points there are pumping stations
powered by electricity received from the respondent.
The respondent furnishes electric' power to the United States Post Office in
40 communities. This power is used in all of those offices for lighting, and in
some of them for operating of stamp canceling machines, conveyors, and other
auxiliary equipment.
The respondent furnishes electricity to the San Angelo Telephone Company at
San Angelo, Ozona, Sterling City, and eight other points ; to the Southwestern
Bell Telephone of Abilene and four other points, and to eight other telephone
companies at various points. The energy used by these companies is used in
transmitting and receiving interstate and local communications
The respondent furnishes electricity to the Western Union Telegraph Com-
pany at San Angelo, McCamey, Aiblene, Ballinger, Quannah, and seven other
cities, and to Postal Telegraph Company at Abilene, San Angelo and Cisco.
The respondent furnishes electricity whidh is used for airway beacon number
four, maintained by the United States Department of Commerce at Shamrock,
Texas, and for beacon lights at the Abilene and Merkle airports. American Air
Lines operate planes which fly through Texas on a transcontinental schedule,
and one east bound and one west bound plane makes daily stops at Abilene 4
II. THE ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local 1044, affiliated with
the American Federation of Labor, is a labor organization admitting to member-
ship employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background of labor relations
The union involved in the present proceeding previously filed a charge alleging
that the respondent herein had committed certain unfair labor practices. The
The above findings are based upon a stipulation entered into between the parties and
the facts stipulated are substantially similar to those stated under the section in the
Board 's decision entitled "The business of the respondent " in the case of National Labor
Relations Board v. West Texas Utilities Company, 119 F. (2d) 683, enfg as modified 22
N. L. R. B. 522
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board issued its complaint and a hearing was held from July 25 through to
August 6, 1938. The complaint in those proceedings alleged violations of Sec-
tion 8 (1), (2) and (3) of the Act. On March 30, 1940, the Board entered its
decision in which it was held that unfair labor practices under Sections 8 (1),
(2) and (3) had been committed. Subsequently the Board filed a petition to en-
force its order in the United States Circuit Court of Appeals, Fifth Circuit. This
Court on May 2, 1941, by its decree affirmed with, certain modifications the
Board's decision.5
The present proceedings concern only district E, known as the Quannah district
and district J, known as the Childress district. In the above mentioned case it
appears that the Quannah district was involved but that the proceeding did not
involve the Childress district of the respondent.
B. Interference, restraint and coercion
In the latter part of January or early in February 1941, L. L. Pettit, a lineman
who was employed in the Quannah and Childress districts, together with J. C.
Robbins, also a lineman who worked out of the local Childress office, A B.
Lyons, Roy Sanders, B. E. Hunter, and Bob Adams all employees of the respond-
ent became interested in organizing a union. This group 'contacted W. L. In-
gram in Wort Worth, Texas. Ingram was vice-president of the International
Union and he sent a representative named ldwards to assist the employees of
the respondent to organize in the Quannah and Childress districts. Later in Feb-
ruary 1941, J. W. Null, also an international representative of the Union came to
Quannah and Childress and continued with the organizational work and pre-
pared a charter application for the establishment of a new local affiliate' of the
Union. On March 16, 1941, the charter was installed and Local 1044 of the Union
became formally organized. -
Shortly after the organizational campaign had commenced, Robbins, a lineman
working out of the Childress local office under the supervision of Carl Hudson,
local office manager, received an order to install a meter. Just as he was
leaving the office Hudson asked Robbins where he was going and the latter
replied he was going out to set a meter and asked Hudson if he wanted to go
along. Hudson accompanied Robbins in a service car of the respondent and,
while driving out to the job, Hudson asked Robbins why he had joined the
Union. Robbins replied that the men wanted to secure better working condi-
tions. Hudson then said that he doubted that the men could get any good out
of a union organization, that he had once been a union member and received
no benefits from his membership and, further stated that he thought the em-
ployees were spending their m, ney foolishly in giving it to the Union. On
cross-examination Hudson admitted that the above conversation had taken
place and that it was substantially in accord with the testimony given by Rob-
bins. Hudson was a major supervisor of the respondent with power to dis-
charge employees and therefore the respondent is responsible for any anti-union
activities which Hudson may have engaged in. In view of the fact that 'the
employees at this time were commencing to organize, the above remarks by
Hudson to an employee working under his supervision tend to lessen, if not
destroy, the interest of such an employee in the Union organization.
6 See National Labor Relations Board v West Texas Utilities Company, 119 F. (2d)-
683'(C. C A. 5) enforcing as modified , 22 N. L. R. B. 522. The modification in substance
concerned some of the findings and conclusions in the 8 (3) phase of the case and limited
the posting of notices to those districts of the respondent in which unfair labor practices,
were committed.
WEST TEXAS UTILITIES COMPANY 275
James M. Jamison, an operator in the Vernon sub-station of the respondent,
testified that in the spring of 1941 Pettit , a fellow employee , asked him to attend
a union meeting at Quannah . Jamison testified that after attending the meet-
ing, he had been informed by one of the other employees that the respondent's
supervisors knew of the union activities . On the day following the meeting he
met Monty Garrison , the local manager at Vernon, in the respondent 's local
office and said to Garrison , "Mr. Garrison I guess you know that I went to
Quannah yesterday to the A. F. of L . meeting," and he said , "Yes, I knew that
you did," or "I understood that you did " Jamison then said , "Well, since I
have studied it over , I think I will just forget about the union for the present,
and just go on-working like nothing ever happened ." Garrison then said , "Well,
I am glad you decided to do that."-"I am afraid this union business is going
to get some of you boys in"-"Get some of the boys in trouble , and going to
cause some hardship." Garrison was not called as a witness , hence ' the above
testimony of Jamison stands uncontradicted and the undersigned has accepted
it as being credible and true. Garrison , the local manager of the Vernon office,
was a major supervisor and, as in Hudson ' s case, the respondent is respon-
sible for his union activities . The above remarks of Garrison did tend to induce
an employee to withdraw from his union activities.
W. E. Maddox was a serviceman on Frigidaire and small appliance apparatus,
who at times also worked as a lineman and set meters in the local territory
covered by the Wellington office. N. C. Beam was the local manager of the
office. Shortly after the union organization drive commenced Beam asked
Maddox what Maddox was going to gain by belonging to the Union. Maddox
replied that he did not know whereupon Beam, according to the testimony of
Maddox said , "They will take your money,"-"you won't get a damn thing out
of it."-"You don't know who that organizer is"-"You never met him before he
came up here?" Maddox replied, "No, I never saw him until he came up here."
Then according to Maddox 's testimony Beam said , "These damned organizers
are thieves and sons of bitches, every one of them "-"They are un -American
and unpatriotic"-"These unions , they are causing strikes and various disunity."
Beam admitted that he had asked Maddox what caused him to join 'the Union
but denied that he had made any derogatory remarks concerning the Union and
its organizers . Beam also admitted on cross-examination that when Maddox
told him he was joining a union for protection , he, Beam replied that in his
opinion that the respondent was giving its employees protection , and that they
did not require any other protection. Maddox in his testimony also stated that
the respondent was favoring Holladay, a non -union employee, in the territory,
with more overtime than was being given Maddox . A statement prepared from
the respondent 's records showing the overtime paid to Wellington employees
since the Union had organized was admitted in evidence . It appears that during
the months of September and October , 1942, one Holladay , a lineman working
in the Wellington office, had put in 36 hours overtime on 3 Sundays during this
period installing a transmission line into a new air service school 'then being
constructed for the United States government near the city of Childress. Beam
testified that he selected Holladay because he was more experienced and better
qualified to do this type of work than Maddox or the other Wellington em-
ployees and that this was the only reason Holladay was assigned the job.
The record pertaining to overtime failed to show that any substantial discrimina-
tion concerning overtime was directed against Maddox . Beam impressed the
undersigned as being a truthful witness and the undersigned believes that Maddox
aggrieved because Holladay had been selected for this Sunday overtime work,
amplified to some extent the remarks made by Beam on the occasion when they
540612-44-vol. 51-19
276 DECISIONS OF NATIONAL LABOR RELAtTIONS BOARD
engaged in the conversation pertaining to the Union . Despite Beam's denial
that he disparaged the Union, as testified by Maddox ; his admissions as noted
above convince the undersigned that the general tenor of the remarks by Beam
were anti-union and did discourage an employee from engaging in concerted union
activities. Since Beam is a major supervisor the respondent is responsible for
his anti-union activities.
L. L. Pettit during the year 1941 was a lineman employed in the Quannah
district . Pettit was the financial secretary of the union and from July 1941
until December 29, 1941, when Pettit quit his employment , he worked as a
member of the crew of Cecil Robinson, a foreman in the transmission , depart-
ment. Robinson 's crew while on duty rode on a pickup truck to the various
jobs on which they were working. Pettit testified that Robinson would gener-
ally turn on the radio in the car to pick up news broadcasts and that on these
broadcasts commentators frequently criticized unions for engaging in strikes.
Pettit also testified that Robinson had said on one occasion while the crew was
driving to a job, that he, Robinson could not understand why a bunch of men
would be damn fools enough to spend their money to belong to a labor organi-
zation and let the officers of such an organization tell them what to do, and
that Robinson also stated that the respondent did not have to keep a line
maintenance crew in service , since the work they were doing could be let out
on contract Robinson while testifying denied that he ever stated to Pettit
that the employees would be damn fools to belong to the union or that the
company would contract out the line construction work. Robinson admitted
that he turned on the radio in the service truck to listen to news broadcasts,
and that he had done this prior to the organization of the Union among the
respondent 's employees He also testified that the broadcasts were generally
news broadcasts and while in some of them there may have been mention made
of strikes, he made no effort to select broadcasts of this nature. Robinson in
his testimony also said that he and Pettit had engaged in a conversation one
night in a hotel lobby in Wellington . On this occasion Pettit was telling him
about the advantage of belonging to the Union since it carried a $1000 insurance
policy on each member, and also told him that the Union was going to sue the
company for back overtime pay due employees Robinson testified that on this
occasion he stated that the respondent furnished a $1500 insurance policy to
employees, paid them for vacations and also paid the employees when they were
away from work because of sickness. Robinson also testified that on another
occasion he had given Pettit a newspaper article concerning a strike at one of
the Ford plants and that at the time said to Pettit, "Why did they want to
join the C I 0., when Henry Ford pail more than any other manufacturer in
the United States," and what' was the benefit of joining? The undersigned
concludes from the testimony of Pettit and Robinson that Robinson had indi-
cated to Pettit his general objection to union organizations and impliedly to
the Union herein. The evidence discloses that Robinson admittedly had super-
visory authority over and the power to discharge employees on his crew. It
follows that the respondent is responsible foi anti-union remarks of Robinson
made to employees under his supervision
L. M. Browning a refrigerator serviceman testified that sometime in 1942 in
a conversation with H. H. Reavis, the serviceman in charge of Refrigerator
Service in the entire Childress district and Browning's immediate supervisor,
the following conversation took place:
Mr Reavis told me, he said, "Things are in a hell of a mess" I asked
him, I said , "Mr. Reavis , what do you mean by that ?" I said, "Is it my
WEST TEXAS UTILITIES COMPANY 277
work , or is it something else you want to talk about?" He said, "It is not
your work , but," he said , "if you are going to be my man, I want you to do
what I tell you to do." I said, "Now , what does that imply? I don't
understand what is involved ." He says, "If I was you , I would get out
of the union you are in and do what I tell you, and everything will be all
right." I told him , I said, "Is that all there is to it?" He said, "No." He
said, "I want you to run those boys out of the shop when they come in there
talking that damned union stuff." He said, "I can't run them out, but," He
says, "You can ." I said, "If I do anything like that, there is going to be
trouble, because Mr. Brewer asked me to get along with other employees,
and when I start out here with trouble like that, I am not going to, get
anywhere ." He said, "I will back you up on that."
Q. Reavis said be would back you up on it?
A. Yes, sir, he would back me up, so I told him, "Well, like things are,
it looks pretty bad," and he said, "well, if I didn't like it, why didn 't I take
a change." I said, "No, I just decided I was going to stay on and stick
it out, " and he told me, he said , "If that is your attitude ," he said, "there
is no use for me to talk to you any more," and when I saw the matter was
concluded , why, I got out of the car , and decided I would go and speak to
a party that had come to see me, Mr. L M. Smith, who was waiting there
in the company pickup that I was assigned to, and Mr. Reavis called me
back to the car and said , "Browning," he said, "You have always got a chip
on your shoulder," I said, "no," I said, "no, boy," I said, "you are the boy
that has got the chip on your shoulder ," and that was all of the
conversation.
Reavis admitted having a conversation with Browning concerning conversations
in the shop between Browning and other employees . Reavis testified that he,
Browning , and L. M Smith , a service man in the local Childress office, had worked
overtime one night installing a soda fountain and because they had been working,
overtime did not come in to work on the morning of the following day, and that
Browning and Smith also did not report for work in the afternoon . About 2
o'clock that afternoon a compressor used in connection with the soda fountain
was delivered at the customer 's place of business . The customer called Reavis
and asked him to complete the job. Reaves drove to Browning 's house to pick
up Browning and both of them worked on the job that afternoon and also for
several hours after 5 o'clock that night . The next morning Robbins and Smith,
employees of the local Childress office , complained to Browning concerning the
overtime work and , according to Reavis ' testimony , Browning told him that Smith
complained to Browning that he should have gotten the overtime work rather
than Browning . Reavis was angry and then asked Hudson , the local manager, to
tell Robbins and Smith that they had better not complain to him about how he,
Reavis, should carry on the service work. Reavis denied that the Union was
discussed in the above conversation as testified to by Browning , and further denied
ever having any conversation with Browning concerning the Union . Based upon
his observation of both Browning and Reavis while on the witness stand,
the undersigned was convinced that Reavis was a more credible witness than
Browning. Browning at times was evasive and appeared unwilling to consider
and answer the questions put to him . The undersigned accordingly accepts as
true Reavis ' version of the controversy
Browning also testified that in the spring of 1942 while driving to Kirkland„
Texas, he had a conversation concerning working conditions with Harolson, an-
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other employee of the Childress office.° According to Browning's testimony the
following conversation was held :
A. Well, driving to Kirkland, and a discussion was had between Mr. Harol-
son and myself about the working conditions and on our return trip was a con-
tinuation of that talk, and on that particular time, Mr. Harolson said to me
that Mr. Robbins and Mr. Smith had got so crazy since they had got into the
union, and hard to get along with, that he didn't propose to use them. That
I was the only man that he could work with, and the only one that was
agreeable, and he told me that all of this squabling that was going on in this
district was known to Mr. Schroeder, [Vice-president of the respondent,
whose office was in Abilene, Texas] and when Mr. Schroeder became -ac-
quainted with further details, that there would be boys here losing jobs, and
he said "If I was you, I would get out of that union." He said he would
knock those boys in the head, and wouldn't let them be running his business,
and telling him about his hours, and things like that, and I told him,.I said,
"Now, I wouldn't get along with that. I have been ordered to get along
with everybody," I said, and I told him, I said, "I don't know whether I
would get any backing on a proposition like that or not." He said, "Boy,"
he said, "things have changed." He said, "What they used to be, things have
changed," and he said, "I don't know about Mr. Brewer, whether he would
back you up, but," he said, "You would get along all right, because," he said,
"I would back you up, and Carl Hudson would back you up, and," he said,
"You would get along with it."-
Q. Were you going or coming from work when that conversation was had?
A. That conversation just related was on the return trip, and it terminated
in front of the company local office.
Q. What work did you do while you were gone?
A We had delivered and tested a washing machine for a customer in
Kirkland.
Q. Who had ordered you to go tip there on that trip?
A. Mr. Harolson requested that I go and help him deliver this washing
machine, iviith approval. [Italics supplied ]
Q. During that time, Mr. Harolson did give you instructions where to
work, or what type of work to do?
A. He was in charge of this operation.
Q. All right. Did he ever instruct you in any other work about that
period of time, and where to go?
A. Well, at preceding times, I had assisted him on a few occasions.
Q. Was he a service man himself?
A. I always understood that he was a local combination, local service man
and manager.
Harolson was not called as a witness to refute this conversation.
Robbins and Smith named in the above conversation have not been discharged
and are still employees of the respondent. The undersigned concludes that
"According to testimony of Brewer, the district manager, Harolson might be classified
as a manager-serviceman for several communities adjacent to the City of Childress which
were too small to 'require the maintenance of a regular office Harolson performed the
manual work of a serviceman in these outlying communities and was one of a group of
approximately 10 employees supervised by Carl Hudson, the local manager of the City
of Childress. Harolson had no substantial supervisory authority over the other employees
and, ordinarily, worked alone as a serviceman but, if he needed assistance for work in the
territory, he applied to Hudson to assign him a man to assist him.
WEST TEXAS UTILITIES COMPANY 279
Harolson lacked sufficient supervisory authority to charge the respondent with
responsibility for his statements to fellow employees.
When it is considered that the local managers of the above named offices for
the respondent, namely, Hudson, Garrison, and Beam, all had knowledge that
the employees of the respondent were attempting to organize into a union at the•
time they engaged in the above conversations and that the nature of the state-
ments made by these local managers would tend to discourage concerted labor
organizational activities among the employees, it appears obvious to the under-
signed that these activities of the said supervisory employees were made with
intent to discourage union activities among the respondent's employees. Likewise
the remarks criticizing union organizations made by Foreman Robinson of the
transmission crew to Pettit, one of the members of his crew, would tend to dis-
courage concerted labor activities on the part of Pettit, the financial secretary
of the Union. Moreover the statements of Local Manager Garrison to Jamison
that he, Garrison, was afraid that the Union "business" might get some of the
boys in trouble and cause hardships was an implied threat that union activities
by employees would result in their discharge. Since these four supervisors had
major supervisory authority, including the power to discharge employees, the
respondent is responsible for their acts.
The undersigned finds that by expressing opposition to the Union and by threat-
ening employees with discharge should they engage in concerted activities, the
respondent has interfered with, restrained, and coerced its employees in the
exercise of the rights guarareed in Section 7 of the Act.
C. The d'escharge of Browning
The complaint alleged that the respondent discharged L. W. Browning on or
about August 1, 1942, and thereafter failed, refused, and continues to refuse to
reinstate the said Browning to his former or substantially, equivalent position
for the reason that he joined or assisted the Union, or engaged in concerted
activities. The respondent in its answer admitted the discharge of Browning
on or about August 1, 1942, and that it refused to reinstate him, but denied that
Browning's termination was based upon his union activities and alleged in sub-
stance that the discharge was due to his failure to properly fulfill his duties as
he was directed to perform them and because of his conduct toward customers of
the respondent.
Browning entered upon his employment with the respondent in 1926. He
started as employee of the Abilene Traction Company, then one of the divisions
of the respondent's business. After the cessation of traction service in Abilene
he was transferred to the service division of the merchandising department in
Abilene, Texas. Altogether he worked in Abilene for approximately 4 or 5
years. He was then transferred to service work in Ballinger, Texas. In Bal-
linger he performed service work for the Merchandising Division of the re-
spondent and remained in Ballinger for 5 or 6 years. According to Browning's
testimony, the merchandise manager for the Ballinger district wanted to replace
him by another employee and Browning told Wallace, his immediate supervisor,
that he would prefer to be transferred to another district, rather than work
under a dissatisfied boss. At the time Wallace stated that he was placing
Browning on probation until he investigated the matter. Browning was later
transferred to the Childress district in October 1937; hence it would appear
that Browning was not guilty of any serious dereliction of duty while in
Ballinger. Immediately preceding his transfer to Childress he filled a tem-
porary vacancy in the Quannah district for a period of 10 to 12 weeks. While
on this job he was working out of the Vernon, Texas, office. Browning testified
280 DECISIONS OF NATIONAL LABOR RELA(fIONNS BOARD
that while in the Quannah district, Morely, the district manager, told him he
did not like to see Browning leave and would like to retain him for service in
the district. Morely, however, testified that while he remembered Browning
as a former employee in his district, he denied having stated to Browning that
he would like to retain him as an employee and, further said, that he was not
familiar with Browning's ability as an employee but assumed that his services
had been satisfactory since he had no recollection of any complaints having
been made concerning Browning while he was temporarily employed in the
district.
Browning testified, and it was not contradicted, that he commenced work
for the respondent in Abilene at $110 a month, and that when he was trans-
ferred to the merchandising department in Abilene his pay was reduced to
$90 a month but later increased while working in this department, and that
at the time he left Abilene his pay was $115 per month. Subsequently, after
his transfer to Ballinger, his salary was increased to $125 per month and when
he was transferred to Childress in or about October 1937, he received another
increase to $135 per month. In December 1940 the respondent abolished its
policy of paying service and operating employees on a monthly basis. There-
after Browning and the other non-supervisory service employees were paid on
An hourly rate. It appears from the evidence that the total monthly wages
thereafter received based on an hourly rate was substantially the same as
monthly salary formerly paid.
In the latter part of January 1941, or the early part of February 1941, some
of the employees in the Quannah and Childress districts decided to organize
a union. As mentioned above Pettit in the Quannah district and Robbins in
the Childress district with a few other employees requested Vice-president
Ingram of the Union at Fort Worth, Texas to assist them to organize. As
aforesaid a charter was granted to the Union herein, namely, Local 1044, of
the International Brotherhood of Electrical Workers. According to the evi-
dence Browning does not appear to have been active during the pre -organizational
stages of the Union but he joined the Union on or about March 16, 1941, the
date when the charter was installed. Browning also testified that he was a
member of the executive board of the Union for nearly a year before his dis-
charge on August 1, 1942, and was recording secretary for the Local for about
3 months prior to the discharge. Browning wore his union button on his
shirt on numerous occasions while working for the respondent and on several
occasions he received at the plant office by mail,' an official magazine published
by the Union.
When Browning commenced his work at Childress, he was assigned to work
out of the local office under the local manager, Carl Hudson, his principal duties
being to service residential and commercial electrical refrigerating machinery
in and about the City of Childress. At this time H. R. Reavis was the district
serviceman on electrical refrigeration machinery. Most of Reavis' work was
performed in the various towns and cities outside the City of Childress throughout
the Childress district, which district embraces several counties. After a few
months Browning was also sent out by Reavis to handle service calls in the district
territory. In August 1939 Reavis was injured in an automobile accident and
' Browning testified that sometimes he received this magazine at his postoffice box in
the Childress post office and at other times, it was delivered with other mail to employees
and placed on a desk used by all of the employees at the office of the respondent. Browning,
admitted in his testimony that other union members customarily wore their union buttons
while working for the respondent and that other members also received the Union magazine
by mail at the respondent's office.
WEST TEXAS UTILITIES COMPANY 281
spent several months confined in a hospital. During this period, Brewer, the
district manager for the respondent, assigned Browning to handle the district
service work and when Reavis returned to active duty in the summer of 1940,
Brewer placed Browning under the supervision of Reavis. Reavis testified that
Brewer called him into the office and said, "I am putting Browning directly under
you because I am, or have been, unable to keep up with him" Reavis further
testified that at the time Brewer also said-"that when I [Reavis] had gone as
far as I could,-with Mr. Browning, to turn him back to him." 8
On September 13, 1941, Brewer called Browning into his office and handed
him a paper reading as follows :
Below, I want to call your attention to something that you have done,
that we cannot permit, and keep you in our employ.
1-You must change your attitude about your work.
2-We cannot permit the things to come up, as it did recently between
you and your wife. It is a reflection on our Company, and to the other
employees.
3-The Estelline deal pulled by you sometime ago must never happen again.
You must get along with the other employees.
4-You must treat our customers just like you would want to be treated.
5-Must not leave any town until you have gotten the customers equipment
operating.
6-Do not try to get out of your duties by claiming you had accident back
in the past, and that you cannot walk, when the records show that there
never was any accident report made.
7-It is very necessary that you get along with the local managers, as well
as the rest of the organization.
We want to call your attention to the above matters, as we can not permit
them to continue, we must have your full cooperation in every respect, and we
want you to change your attitude about your duties, and get in and take
care of your job like it should be taken care of. We must have full co-
operation for without the full cooperation of every employee, we cannot
take care of the district in the way that we should, for after all, our
customers are the ones that help pay our salaries.
If you agree to comply with the above, kindly sign the attached copy of
this letter and return to me.
Signed, J. A. BREWER.
L. W. BROWNING.
Before Browning signed the above paper Brewer and Browning talked over
some items which were set forth in the letter. Most of the conversation concerned
Browning 's family trouble and the Estelline deal. It appears from the evidence
that, shortly before Brewer called Browning into the office, Browning had had
a quarrel with his wife and had assaulted her. The local newspaper at the time
published a story pertaining to the matter and there had been a hearing in one
of the local courts, but the outcome of the proceedings do not appear in evidence.
Brewer testified that he considered the trouble between Browning and his wife
a matter of major importance and that 2 or 3 years previously he had discharged
another employee for being involved in a similar incident. The Estelline deal
mentioned in the letter concerned a service job that Browning and Smith had
worked on during the latter part of 1940. It appears in the evidence that the
job was not completed by 5 o'clock , the regular quitting time of employees) and
8 This was several months before any union activities developed in the Childress district.
282 DECISIONS OF NATIONAL LABOR RELAfrIONIS BOARD
'that Browning and Smith continued to work until nearly 2 a. m. the following
morning. On the completion of the job Browning took a check payable to himself
covering all the time and materials used on the job and turned over to the
respondent the money for materials used and for the time on the job put in by
Browning and Smith up to 5 p. in. and retained the difference. Browning ad-
mitted in his testimony that Smith, the other employee of the respondent, did
not approve of the transaction and at the time refused to take any part of the
money paid for the overtime work. Brewer in his testimony said that had it
not been for the other case in which the respondent was involved before the
Board, he would have discharged Browning then.
Reavis, the district serviceman under whom Browning worked from the spring
of 1940 until his discharge, testified that Browning was a competent serviceman
on electrical refrigeration machinery but that he apparently did several things
,in an endeavor to annoy and worry Reavis. He testified to several incidents
which happened prior to July 1942, none of which singly were of a very serious
nature.° Reavis further testified that in July 1942, Browning reported to him
that one of the pumps on an air conditioner at the Modern Cafe in Childress was
not operating. Reavis told Browning to repair it on the job if he could, and if
not, to take it out and bring it to the shop for repairs. Two or 3 days later
Reavis received a call from the customer stating that the air conditioner was
still not giving satisfactory service. Reavis answered the call and found the
pump still at the cafe but disconnected from the air conditioning machine.
At or about the same time, also in July 1942, Browning told him that he had
responded to a call at the City Cafe in Childress and found nothing 'wrong.
Shortly thereafter the City Cafe called in and Reavis answered the call. He
testified that the trouble was due to the condenser on the electric Irefriger'at'or
being choked with dirt and that he was able to remedy the trouble by brushing
off loose dirt and lint from the face of the condenser with a whisk broom. A
few days later another call came in from the City Cafe Reavis, who at the
time had an appointment with another customer went over and checked the
refrigerator and found that additional gas was needed in the system He notified
Browning to put in some additional gas which operation Browning performed.
Two days later, also in July 1942, he was passing the cafe when the owner called
him in and reported that he was having the same trouble. Reavis testified that
the machine again needed gas and that lack of gas was usually due to a leak and
that a competent serviceman would look for a leak and seal it. He tested the
apparatus and found a gas leak and after replacing the missing amount of gas,
he sealed up the leaking joint. He testified that he later ,spoke to Browning con-
cerning the matter and Browning replied that Reavis had not told him to test
the machine for leaks. Browning in' his testimony stated that all makes of
refrigerators did not contain gadgets for testing for gas leaks and that when
he tested for leaking gas he usually inspected, the couplings to see if there was
any oil leakage, since this indicated a leaking joint and the gas was escaping.
Reavis testified that the proper test for gas was to direct a flame from an alcohol
blow torch at a joint in the piping and that if gas were leaking it would change
the direction also the color of the flame, and that any careful serviceman would
g Brewer also testified that in April 1939 there had been a bad sleet storm, which hap-
pened on a Friday, and the respondent was busy for several days trying to restore service,
and that the respondent needed the use of all of its pickup cars. On the following Sunday
'Browning, who had a company pickup car, took the pickup car and drove to Quannah on
personal business. The next morning Brewer reprimanded Browning and said to him,
"Browning, what did you take that pickup car for when you knew we bad all of our cars
out In the country tied up?"
WEST TEXAS UTILITIES COMPANY 283
make this test when it appeared that there was a shortage of gas in the apparatus
and stop up the leak.
During the latter part of July 1942 , Reavis took a blower machine from the
shop and placed it in his truck for use on some equipment he was going to service
in Memphis , Texas. The next morning , after he returned , Heppler asked him
for the blower . On going to his truck he found the blower was missing and
asked Smith , the other serviceman who worked with him and Browning, if
he knew anything about it. Smith had no knowledge concerning its whereabouts
but said he was going to the shop and would ask Browning if he had been
using it. Shortly thereafter Smith reported back that Browning said he had
not seen the blower since Reavis had taken it out of the shop. Reavis, believing-
it had been stolen from his truck in Memphis , Texas, reported it to the Memphis
Police Department . Two days later Heppler told Reavis that he had found the
blower and told him that Browning had taken it out of Reavis' truck. After
these incidents discussed above concerning the Modern Cafe, the City Cafe and
the blower had happened, Reavis testified that he had a conversation with
Browning as follows :
I said "Browning , I believe that you have been deliberately doing some
things around here so that I cannot get the job done, or just to keep me
in a bad humor , I don't know which." I said, "Browning , why didn't you
test that job for leaks, when you worked on it the other night'?" He said,
"You didn 't tell me to " [the City Cafe job]
Q. All right. Finish your conversation.
A. I've got to get my breath. I said, "Browning , your services around,
here lately have been very poor." He said, "I think that my service has
been just as good as yours. " I sat there awhile, and he stood there a few
seconds, and I said, "Browning , do you think that you could do a little bit
better?" He didn't answer. I said, "Browning , will you try to do just a
little bit better?"
Q All right. What happened?
A Well, he said, "What do you intend to do about it?"
Q. And what did you say?
A I said, "I intend to turn you back to Mr. Brewer, just as he instructed
me to do."
Q Was that the substance of the conversation , or was there something
else said?
A. That is all.
Q. About how long was this before you reported back to Mr. Brewer?
A. I think I reported the next day.
Browning in his testimony said that he had no recollection of having held
the above conversation with Reavis , but further testified he would not swear
that such a conversation had not taken place. Reavis impressed the undersigned
as being a honest and truthful witness during all of his testimony while Browning
was inclined to be evasive and hesitant at times. The undersigned has accepted
Reavis' testimony as above set forth concerning this conversation as being
credible and true.
Following Reavis' report to Brewer , that he wished to be relieved of any
further supervisory jurisdiction over Browning , Hudson, the local manager
of the Childress office reported to Brewer on two complaints concerning service
on electrical refrigeration machinery . These complaints collaterally concerned
remarks made by Browning to customers while servicing their equipment. On
May 30, 1942 , the Dr. Peper Bottling Company of Childress called to report
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that equipment was out of order. These calls are received by a girl in the
local office and an order to service the equipment is drawn up and placed by
her in a so called trouble box in the office. The call came in in the morning
and an order was placed in the box directing the matter to the attention of Reavis.
On May 30 Reavis was out of town on other company business and Browning
was working in the repair shop, of the respondent, which is about 5 blocks
distant from the Childress office. Subsequently the Pepper Company again
called in twice on May 30 to ask for service and Browning was sent out to attend
to the trouble after the third call was received." When Browning appeared at
the Pepper plant, Shirley, the manager, asked him where he had been. Browning
replied that if he had been asked for when the call was first made, it would have
received prompt attention. Shirley was incensed and stated he had no'interest
in who might answer such calls, but that he was only concerned with getting
the trouble repaired. According to Shirley's testimony, a further conversation
occurred between Shirley and Browning. In this conversation, among other
things, Browning, in substance asked Shirley what "scab" had been working
on the equipment. Following this a heated argument developed between the
two men concerning scabs and unions. Browning denied having made any
statement in reference to "scabs." Basing his conclusion upon his observation
of both witnesses and upon a consideration of all the testimony concerning the
incident the undersigned finds that Browning made the above inquiry concern-
ing "scabs" at the Pepper plant. Shirley subsequently complained to the com-
pany concerning the delay in receiving service on the call and related what
Browning had said to him at the time. When Hudson told Brewer of the inci-
dent on July 24 Brewer and Hudson called on Shirley a few days later and the
latter told Brewer what had taken place.
The respondent, in the early part of 1942, sold an ice-cream refrigerating box
to a customer operating the Arrington Cafe in Carey, Texas. The customer
complained in July 1942 that it had been frequently out of order. On July 27,
1942, Browning in response to a call found it was not functioning properly and
suggested taking it in the shop for an overhauling. Mrs. Arrington, the customer,
told Browning that "I had a man out here yesterday, our neighbor, and he said
it [the trouble] is a gas leak." He [Browning] said, "Well, if he knows so much
about it, why don't you get him to fix it?" When Mrs. Arrington complained
to the respondent, in July 1942, regarding the many times the refrigerating
machine had been in poor condition she related among other things, to repre-
sentatives of the respondent, the above remarks made by Browning. She was
called by the Board and on direct examination testified that she was not
offended by Browning's remark, but on cross-examination admitted that she was
"peeved" when Browning made the remark. It is obvious that the remarks
such as made by Browning to Shirley of the Dr Pepper Company and to Mrs.
Arrington tend to lead to strained company and customer relations.
Brewer denied he had considered Browning's union affiliation in connection
with the discharge and testified : "I never thought about it. The fact of the
business is, the consideration of his union did not affect me, because I didn't
know that Mr. Browning-he didn't make any-as far as I knew, there was no
10 The respondent offered evidence to show that the call had remained in the trouble box
without attention for nearly 2 days, and other evidence tending to show that Browning
was under a duty to watch the trouble box for calls even while working in the repair shop.
The evidence shows however that the equipment was serviced by Browning on the same
day the trouble occurred and also that no definite rule existed regarding watching the box
for trouble calls, for Reavis testified that he seldom looked in the box to check on such calls-
WEST TEXAS UTILITIE'S COMPANY 285
agitation on his part. He [Browning] never had said anything that I know of,'
or I never had anything coming from him from the union side, because he belonged
to the union."
On August 1, 1942, Brewer called Browning to his office and, according to
Browning's testimony told him, "Browning-in view of some things that have
happened, we have decided to terminate your employment with the company."
Brower then told him that they had investigated some incidents where Browning
had failed to please or mistreated some customers, or had failed to render the
type of service that the respondent wanted. Browning asked Brewer to go to
see'some of the customers named but Brewer refused saying they had already
made all of the investigation that he cared to make.
At the time of his discharge Browning asked Brewer if he could talk to
Schroeder, the respondent's vice-president and general superintendent. Brewer
replied, "Yes, I understand Mr. Schroeder has a big heart," and suggested that
Browning go to,Abilene, Texas, and have a talk with Schroeder. Browning
requested permission to borrow the respondent's automobile, which he had been
using as a service car, to make a trip to Abilene. Browning offered to pay for
the use of the car on a mileage basis and Brewer granted him permission to take
it. Two or three days later Browning went to Abilene and bad a conference with
Schroeder. According to Browning's testimony the conversation was as follows:
I informed Mr. Schroeder about the circumstances, he told me that, yes,
he was informed of it, and I told him that I would like to have an investign-
tion of the charges made, because I was willing to go to work for the company
at any other location or in any other job the company had to offer, and he
said, no, he said, that the investigation had already been made, and the
findings were binding, and that there is no opportunities for you to go to
work there again, and that my days with the utilities company was washed
out, and he advised me to get a job at some defense plant.
Q. Did he make any other statements to you, either up in his office or
downstairs?
A. Oh, he told me that up until that instance that I had been an employee
that he could give a recommendation to, until that thing come up, but he
said should I make an application to other people for employment, that he
would not hesitate to answer any inquiry regarding my ability as aworkman
to anybody that would address him as vice president of the utility company.
Q. When you requested him for an investigation to be made, did he make
any reply to that? If so, what was it?
A. He told me that an investigation had already been made, and he was
satisfied with it.
Q. How long were you down in his office?
A. I would say I was in his office approximately thirty minutes.
Q. Did he say anything while were there pertaining to your union
affiliations or activities?
ii L M Smith, the local refrigeration man in Childress testified that in the latter part
of 1940 after the company had changed over from paying monthly salaries to service men,
to an hourly rate, he and Browning were discussing the change with Walker the Chief Clerk.
Brewer came by at that time and said there was no need of trying to figure the system out ;
that "I [Smith] make more money than I had been making in the past." Browning then
stated, "You know what this will lead to then, if it goes on this way,-It looks like it will
be a union " Brewer replied, "I hope that never happens in my time ; I would rather be
out of business than to have to go through with that." Brewer when testifying, said that
he had no recollection of making the statement, but did not deny that he may have made it.
286 DEC19IONS OF NATIONAL LABOR RE'LMHONS BOARD
A. Mr. Schroeder didn't call the name of the union , but he told me that I
had fell into the wrong crowd, or did the wrong way, and for that reason that
it was all out with me.
Schroeder was not called as a witness , hence there is no other evidence in the
record concerning the above conversation . A consideration of this testimony,
however, does not warrant a fair inference that the union activity of Browning
was a motivating factor in the discharge.
In view of all of the evidence offered to show that Browning was an unsatisfac-
tory employee , it is somewhat difficult to understand why he was retained for so
many years by the respondent . On the other hand the evidence fails to show
that he was more active in union activities than other employees who have not
been discharged . While the circumstances surrounding Browning 's discharge
are not entirely free of doubt , a consideration of the evidence as a whole has
failed to convince the undersigned that he was discharged because of his mem-
bership in or activities on behalf of the Union. The undersigned accordingly
finds that the allegations of the complaint pertaining to the discharge of Browning
have not been sustained by the proof.
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 described in Section I above,
have a close , intimate , and substantial relation to trade, traffic , and commerce
among the several States , and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent by its anti -union statements , interfered
with, restrained , and coerced its employees in the exercise of the rights guaranteed
by Section 7 of the Act , the undersigned will recommend that the respondent
cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers, Local 1044, is a labor
organization within the meaning of Section 2 ( 5) of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged in
and is engaging in unfair labor practices , within the meaning of Section 8 (1)
of the Act.
3 The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 ( 6) and ( 7) of the Act.
4. The respondent , by discharging L. W. Browning on August 1, 1942, has
not engaged in unfair labor practices within the meaning of Section 8 (3) of
the Act.
RECOMVIENDATIONS
Upon the basis of the above findings of fact and conclusion of law , the under-
signed recommends that the respondent, West Texas Utilities Company, and its
officers, agents , successors , and assigns shall:
1 Cease and desist from :
WEST TEXAS UTILITIES COMPANY 287
In any manner interfering with, restraining, or coercing its employees in the
exercise of the right to self-organization, to form, join, or assist labor organiza-
tions, to bargain collectively through representatives of their own choosing and
to engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effectuate the policies of the Act :
(a) Immediately post notices in conspicuous places in its offices and shops,
maintained by it throughout the Childress and Quannah districts in the State
of Texas, and maintain for a period of at least sixty (60) consecutive days from
the date of posting, notices to its employees stating that the respondent will
not engage in the conduct from which it is recommended that it cease and desist
in paragraph 1 of these recommendations;
(b) File with the Regional Director for the Sixteenth Region within ten (10)
days from the receipt of this Intermediate Report a report in writing setting
forth in detail the manner in which the respondent has complied with the
foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the Na-
tional Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
It is further recommended that the complaint to the extent that it alleges
that the respondent by discharging L. W. Browning on August 1, 1942, dis-
criminated in regard to the hire and tenure of L W. Browning within the
meaning of Section 8 (3) of the Act. be dismissed.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 2-as amended, effective October 28,
1942-any party may within fifteen (15) days from the date of the entry of the
order transferring the case to the Board, pursuant to Section 32 of Article II
of said Rules and Regulations, file with the Board, Shoreham Building, Wash-
ington, D C , an original and four copies of a statement in writing setting forth
such exceptions to the Intermediate Report or to any other part of the record
or proceeding (including rulings upon all motions or objections) as he relies
upon, together with the original and four copies of a brief in support thereof.
As further provided in said Section 33, should any party desire permission to
argue orally before the Board, request therefor must be made in writing to the
Board within ten (10) days from the date of the order transferring the case
to the Board.
HENRY J. KENT;
Trial Examiner.
Dated May 5, 1943