West Texas Utilities Co., Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1951

94 N.L.R.B. 1638 (N.L.R.B. 1951)

1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
visor A and the clerks B and D (budget section), the clerk B (pay-
roll department), the stenographer-secretary (sales department), the
stenographers junior (accounting and purchasing departments), the
telephone operator junior, the telephone operator junior-teletype
operator, and all employees in the categories listed on Appendix A,
but excluding the chief clerk (traffic department), the stenographer-
secretary (insurance department) and all employees in the categories
listed on Appendix B and all other managerial and confidential em-
ployees and supervisors, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b) of
the Act.
[Text of Direction of Election omitted from publication in this
volume.]
WEST TEXAS UTILITIES COMPANY, INC. and INTERNATIONAL BROTHER-
HOOD OF ELECTRICAL WORKERS, LOCALS 898 AND 920, AFL. Case No.
16-CA-193. June 28, 1951
Decision and Order
On November 30, 1950, Trial Examiner George A. Downing issued
his Intermediate Report in the above-entitled proceeding, finding
that Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, Respondent filed
exceptions to the Intermediate Report and a supporting brief ; the,
General Counsel filed exceptions.
The Board 1 has reviewed the Trial Examiner's rulings made at the
hearing and finds that no prejudicial error was committed. The rul-
ings are hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case, and.
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the modifications, corrections, and additions,
noted below : 2
1 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its
powers in connection with this case to a three -member panel [ Chairman Herzog and
Members Houston and Reynolds].
2 Respondent contends that the filing requirements of Section 9 (f), (g), and (h) of
the Act have not been satisfied in the present proceeding. It does not controvert the
fact that the necessary affidavits and reports have been filed by the two charging locals,
by their International , and by the AFL itself . However, it asserts that reports and
non-Communist affidavits should also have been filed by the Rio Pecos branch of Local 898
and the Abilene Power Plant branch of Local 920.
We find this contention to be without merit . The locals , not the Rio Pecos or Abilene
Power Plant branches , are the charging parties in this case. The statute requires affidavits
91 NLRB No. 237
WEST TEXAS UTILITIES COMPANY, INC , 1639'
1. We agree with the Trial Examiner that Respondent violated.
Section 8 (a) (1) of the Act by engaging in surveillance of union,
meetings, interrogating employees regarding union activities, promis-
ing benefits conditioned on refraining from such activities, and threat-
ening employees with being discharged or laid off, deprived of senior
ity, or denied promotion because of their union activity.
Respondent urges the Board to base no unfair labor practice find-
ings upon the statements attributed by any of the witnesses to either
Chief Engineer J. W. George or Production Superintendent G. A..
Hollowell. At the time of the hearing, Hollowell was dead and
George was ill. The latter's doctor testified that he was suffering
from cancer of the liver and that he was so unstable emotionally that
any effort to question him about the case might result in hemorrhage
and immediate death. It was admitted, however, that he was still
driving 20 miles in his automobile every other day to his doctor's office
to receive treatment. Accordingly, the General Counsel suggested
that his testimony be taken at his home in a quiet and considerate-
manner, but Respondent failed to avail itself of this suggestion.
The Board's complaint, which issued on July 18, 1950, expressly
alleged that George had interrogated and threatened Respondent's.
employees. At that time George had known for 4 months that her
was suffering from cancer. Nevertheless, at the time of the hear-
ing 3 months later, Respondent had done nothing to preserve his.
testimony.
The Board is not precluded from considering as evidence state--
ments attributed to deceased persons or those too ill to testify. It.
does, however, subject such testimony to the closest scrutiny before
deciding what weight to give it .3 In the present case, seven wit-
nesses testified to unlawful statements and threats made by Chief
Engineer George on different occasions . It is difficult to believe that
all seven of them fabricated stories about what George had said to
them. The Trial Examiner who observed the demeanor of these
witnesses on the witness stand credited their testimony. We adopt
these credibility findings.' Although only one witness (Haney) tes-
only from the charging party (if it be a labor organization ) and "any national or inter-
national labor organization of which it is an affiliate or constiutent unit." The Act makes
no requirement with respect to branches of charging locals. Nor does the Board itself
impose any such requirement . F. Strauss and Son, Inc., 80 NLRB 26. The fact that the
Rio Pecos and Abilene Power Plant branches may derive incidental benefit from the relief
here sought by their parent Locals is immaterial . United Engineering Company, 84
NLRB 74 ; Potlatch Forests, Inc., 87 NLRB 1193, set aside on other grounds 28 LRRM
2128 (C. A. 9, May 11, 1951).
3Quarles Manufacturing Company, and Southern Wholesalers , 83 NLRB 697; The
Linde Air Products Company, 86 NLRB 1333; John Hancock Mutual Life Insurance
Company, 92 NLRB 122.
4 The Board bases its findings on a de novo review of the entire record. However, in
determining issues of credibility the Board attaches great weight to the findings of the
1640 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
tified as to the threats by Production Superintendent Hollowell, these
were similar to those voiced by his subordinates George and Holt.
Moreover, Hollowell himself came to the Rio Pecos plant, and dis-
charged Huddleston-an action which we find below to have been
taken to discourage union activities, in violation oaf Section 8 (a) (3)
and (1) of the Act. Finally, the trial Examiner, who observed Haney
on the witness stand, expressly found him to be a truthful and credible
witness. In view of all the circumstances, we find that Hollowell
made the unlawful statements attributed to him by Haney.5
2. A. Al. Coplen s was elected chairman of the executive board
of the Rio Pecos branch of Local 898 in the summer of 1949. That his
exceptional union activity was known to Respondent appears from
Chief Engineer George's ironical remarks to him, regarding his at-
tendance at the Union's organization meeting at the Bender Hotel in
July 1949 and regarding the union meeting which Coplen held at
his own home the following month.' It must also be remembered
that the Rio Pecos plant is a small one employing only 30 people,
that it is located in an isolated community, and that Respondent had
evinced a keen interest in the organizational activities of its employees.
Moreover, George directly warned Coplen that his job might be ter-
minated unless he desisted from his union activity. From all this we
conclude that Respondent was well aware that Coplen was a leader in
the Union."
On September. 7, 1949, 12 days after the union meeting at his home,
Respondent laid off Coplen and kept him laid off for a period of 7
months. This was the only layoff during his 51/2 years of employment"
with Respondent. Except for a 6-month period of service with an-
other employer, he had been kept busy continuously for 6 years as
Respondent's only full-time painter. He was responsible for painting
not only the entire plant, but also all the company houses, both inside
and out. Old jobs came due for repainting about as fast as new paint
jobs were completed, so that he was never entirely caught up with
his work.
Trial Examiner because he has had the advantage of observing the demeanor of witnesses.
Hence the Board does not overrule a Trial Examiner 's resolutions as to credibility except
where the clear preponderance of all the relevant evidence convinces it that the Trial
Examiner' s resolution was incorrect. No such conclusion is warranted in this case.
.Standard Dry Wall Products , Inc., 91 NLRB 544, enforced 188 F. 2d 362 (C. A. 3,
April 25, 1951).
6 Unlike the Trial Examiner , however, we do not regard Respondent as having endorsed
Haney's credibility simply because it called him to testify as part of its own case.
Sometimes referred to by Respondent as "Copeland."
' Regarding the Bender Hotel meeting , George had asked Coplen if he had been attending
a "safety" meeting. Regarding the union meeting at Coplen's home , George had remarked
the next day , "I'm going to have to tell your wife about them parties you are having
down at your house."
s Cf. N. L. R. B. v. Abbott Worsted Mills, 127 F. 2d 438 , 440 (C. A. 1), enforcing
36 NLRB 545; Jasper National Mattress Company, 89 NLRB 75; Stokely Foods, Inc.,
91 NLRB 1:67.
WEST TEXAS UTILITIES COMPANY, INC.11641
No real explanation was given by Respondent for its layoff of
Coplen. No evidence was offered regarding any change in the amount
of painting work needed at Rio Pecos. Nor was there any evidence
that the duties of the maintenance crew had become temporarily
lighter, so that they could spend more of their time painting. On the.
.contrary, when Coplen was restored to his job in April 1950, his first
task was to apply paint to a new fluorine building which had been
completed before his layoff, but which had stood unpainted ever since.9
We find, ,is did the Trial Examiner, that Respondent laid off Coplen
because of his union activities and thereby discriminated against him
in violation of Section 8 (a) (3) and (1) of the Act.
3. Melvin Huddleston was elected president of the Rio Pecos branch
of Local 898 in July of 1949. That his position of leadership in union'
affairs was known to Respondent from the beginning is shown by
Assistant Chief Engineer Holt's warning to employees Woodley and
Alderman in July of 1949 that their continued association with Hud-
dleston would result in their discharge. At the representation hear-
ing held the following October, moreover, Huddleston avowed his
union office.
Officially classified by Respondent as a "machinist," and functioning
chiefly as a skilled maintenance mechanic, Huddleston served Re-
spondent for 4 years without any suggestion being made to him that
his maintenance work was of such character as to constitute him a
supervisor. When Respondent in July 1949 learned of his union
activity, it did not instruct him that, as a supervisor, he should desist.
from it.
Nevertheless, on December 2, 1949, Respondent summoned Huddles
ton and informed him that it wished'to change his classification from
machinist to foreman, without any change in duties. When he de
clined to accept this change in title, he was discharged.
Respondent contends that it discharged Huddleston because, al-
though already a supervisor, he refused to accept that classification
and to continue acting in that capacity. The issue is thus squarely
presented whether the duties which he was then performing were such
as to make him a supervisor within the meaning of the Act.
During the year preceding his discharge, Huddleston worked both
as maintenance Mechanic and as shift engineer. The Trial Examiner
found that neither job was supervisory. However, we find it unneces-
sary to resolve this issue insofar as it relates to the job of shift engi-
s
we find no merit in Respondent's suggestion in its brief that Coplen, in 1949, was
just completing the extra painting work resulting from a fire which took place in 1945.
There is no basis in the record for believing that the fire damage was not promptly repaired.
.
The Trial Examiner found that Coplen bad "frequently" been assigned to the performance
of other work, assisting the repair crew. The record shows, and we find, that he received
such- assignments only occasionally.
-1642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
veer, for the record shows that Huddleston had ceased to work in that
capacity, except sporadically. In fact, during the 3 months preceding
his discharge, he..served as shift engineer only 2 days. Merely occa-
-sional performance of supervisory duties does not make an employee
a supervisor within the meaning of the Act.-
The problem remains whether Huddleston's duties as a maintenance.
kmachinist were supervisory. As a maintenance man, Huddleston
:sometimes served as leader of as many as 10, maintenance employees
-of lesser skill. However, he had no regular crew to assist him, nor
-did he choose his own helpers. All location and job assignments for
-the maintenance men were made by Assistant Chief Engineer Holt,
not by Huddleston, and when a particular assignment was finished,
'the men reported back to Holt, not to Huddleston. No records or
:reports were prepared by' Huddleston for the maintenance men with
whom he worked, nor did he have any power effectively to recommend
-their transfer or discharge. The directions which he gave them, we
-believe, were only such as a more skilled employee would give to
.those less skilled.11
We find that Huddleston was not a supervisor within the meaning
.of the Act. We agree with the Trial Examiner that Respondent's
-insistence upon so classifying him was a pretext to eliminate an espe-
cially active union leader, that its action in discharging him was
discriminatory, and that in so doing it violated Section 8 (3) and
-(1) of the Act.
3. We do not agree with the Trial Examiner, however, that Everett's
resignation, even if it were forced by Respondent," constituted a con-
structive discriminatory discharge. Considering the aura of mystery
which Everett threw about the dynamite which he had obtained from
the Pool brothers, and the very great damage which dynamite, even
- 10 W. R. Wrape Stave Company , Inc., 90 NLRB No. 150; B. F. Goodrich Co., 92 NLRB
575; E. W. Scripps Company, 94 NLRB 245. -
It was not disputed that Huddleston had worked an unusual amount of time as shift
-engineer in early 1949 because one of the regular shift engineers had quit and another
had been discharged . There is thus no occasion to examine the relative number of hours
:spent by Huddleston in such work over a 12-month period.
The case of Ohio Power Company v . N. L. R. B., 176 F . 2d 385 ( C. A. 6), cited by
Respondent , in which control operators were held to be supervisors , has no direct applica-
bility to Huddleston . In that case , the court held that an individual who regularly
;occupies a position which carries with it supervisory power as defined in Section 2 (11)
of the Act is a supervisor , although he may only occasionally exercise that power. The
court did not hold that an individual who only sporadically works at a job which has
supervisory power thereby becomes a supervisor.
"American Finishing Company, 86 NLRB 412; Appalachian Electric Cooperative,
93 NLRB 1348 ; Oliver Machinery Company, 93 NLRB No. 107; Farm Tools, Inc., 93
NLRB 1295.
'= Although Everett's written resignation of December 14, 1949 , appears to have been
signed at the request of Respondent , it is undisputed that only 2 to 4 days later Respondent
:altered its position , destroyed the resignation , and offered to return Everett to his job
.pending further investigation . It is also undisputed that Everett thereupon declared
that he was not interested in going back to work. Unlike the Trial Examiner , we believe
that this refusal of proffered reinstatenrent was a voluntary resignation.
- WEST TEXAS UTILITIES COMPANY, INC.
an small amounts, could do to Respondent's property'13 we are not
-prepared to say that Everett's involvement in the dynamite incident
was only a pretext for forcing his resignation 14 Accordingly, we
-shall dismiss this allegation of the complaint.
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 Respondent, West Texas Utilities Company,
Inc., Girven and Abilene, Texas, and its officers , agents, successors,
and assigns, shall :
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Electrical Workers, Locals 898 and 920, AFL, or in any other labor
organization of its employees by laying off or discharging any of. its
employees or in any other manner discriminating against them in
regard to their hire or tenure of employment, or any term or condition
of employment.
(b) Interrogating its employees regarding their union activities,
exercising surveillance of union meetings, threatening its employees
with dismissal, layoff, loss of seniority, lack of promotion, or other
economic reprisals for union activities, or promising them benefits
conditioned on their abstinence from such activities.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Brotherhood of
Electric Workers, Locals 898 and 920, AFL, or any • other labor
-organization, to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, and
to refrain from any or all of such activities, except to the extent that
such right may be affected by an agreement requiring membership in
.a labor organization as a condition of employment, as authorized in
Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act:
(a) Offer to M. F. Huddleston immediate and full reinstatement to
his former, or to a substantially equivalent, position, without prejudice
to his seniority and other rights and privileges.
13 Even the amount of dynamite which Everett said he obtained from the Pool brothers
-would have been enough to do considerable damage to Respondent 's fence, on which he
admitted he intended to detonate it. Moreover , there was a gas house within 40 to
50 yards of the spot which he chose for his explosion.
14 That an employer may be glad to get rid of an especially active union member does
not render the discharge of that employee discriminatory if it is genuinely motivated by a
legitimate consideration . Salant & Salant, Incorporated, 92 NLRB 417, pp. 496-498;
Montgomery Ward & Co., Incorporated, 90 NLRB 1244 , pp. 1320-1322.
1644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b)' Make whole M. F. Huddleston and A. M. Coplen, in the manner
provided in the Trial Examiner's Intermediate Report under the
heading "The Remedy," for any loss of pay they may have suffered.
by reason of Respondent's discrimination against them.
(c) Upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security pay-
ment records, time cards, personnel records and reports, and all other-
records necessary to analyze. the amounts of back pay due and the
right of reinstatement under the terms of this Order.
(d) Post at its plants at Girven and Abilene, Texas, copies of the
notice attached hereto and marked "Appendix A"."' Copies of such
notice, to be furnished by the Regional Director for the Sixteenth
Region, shall, after being duly signed by Respondent's representa-
tive, be posted by Respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order, what steps.
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis
missed insofar as it alleges that Respondent discriminatorily dis-
charged J. J. Everett.
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees regarding their union
activities, exercise surveillance of union meetings, threaten our
employees with dismissal, layoff, loss of seniority, lack of pro-
motion, or other economic reprisals for such activity, or promise
them benefits conditioned upon refraining from such activities.
WE WILL NOT discourage membership in INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCALS 898 AND 920,
AFL, or in any other labor organization of our employees by
laying off or discharging any of our employees or in any other
'6 In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted before the words, "A Decision and Order " the words , "A Decree
of the United States Court of Appeals Enforcing."
WEST TEXAS UTILITIES COMPANY, INC. 1645
manner discriminating against them in regard to hire or tenure
of employment, or any term or condition of employment.
NVE WILL NOT in any other manner interfere, with, restrain,
or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKER, LOCALS
898 AND 920, AFL, or any other labor organization, to bargain
collectively through representatives of their own choosing, and
to engage in other concerted activities for the purpose of collec-
tive bargaining or other mutual aid or protection, and to refrain
from any or all of such activities, except to the extent that such
right may be affected by an agreement requiring membership in
a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
WE WILL offer to M. F. Huddleston immediate and full rein-
statement to his former or to a substantially equivalent position,
without prejudice to his seniority and other rights and privileges.
WE WILL make whole M. F. Huddleston and A. M. Coplen for
any loss of pay suffered as a result of the discriminations against
them.
Dated --------------------
This notice must remain posted for 60 days from the date hereof
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
Messrs. Evert P. Rhea and Joseph A. Jenkins, for the General Counsel.
Mr. Frank Cain (Irion, Cain, Bergman J Ilickerson, Dallas, Tex.), for the
Respondent.
Mr. J. W. Null, of Fort Worth, Tex., for the Union.
STATEMENT OF THE CASE
Upon a fourth amended charge filed January 20, 1950, by International
Brotherhood of Electrical Workers, Locals 898 and 920, AFL, herein called the
Union, the General Counsel of the National Labor Relations Board,' by the
Regional Director for the Sixteenth Region (Fort Worth, Texas), issued a
complaint dated July 18, 1950, against West Texas Utilities Company, Inc.,
herein called Respondent, alleging that Respondent had engaged in certain
unfair labor practices affecting commerce within the meaning of Section 8 (a)
(1) and (3) and Section 2 (6) and (7) of the National Labor Relations Act,
as amended, 61 Stat. 136, herein called the Act. Copies of the complaint, of said
1 The General Counsel and his representatives are herein referred to as the General
Counsel and the National Labor Relations Board as the Board.
WEST TEXAS UTILITIES COMPANY, INC.,
Employer.
By -----------------------------
(Representative ) ( Title)
1646 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge, and of the notice of hearing were duly served on Respondent and the
Union.
With respect to the unfair labor practices , the complaint alleged in substance
(a) that Respondent discharged A. M. Coplen on September 7, 1949, Melven
F. Huddleston on December 2, 1949, and J. J. Everett on December 15, 1949,
and thereafter refused to reinstate them ( except A. M. Coplen, who returned
to Respondent 's employ on or about April 27, 1950 ), because they joined or
assisted the Union or engaged in other concerted activities , thereby discriminat-
ing against them in order to discourage membership in the Union and thereby
engaging in unfair labor practices within the meaning of Section 8 ( a) (3) ; and
(b) that by the above and by a series of other specified acts allegedly committed
by Respondent through its officers and agents, Price Campbell, G. A. Hollowell,
J. W. George , Ed Hamilton , C. O. Holt and one Howington , on and after
July 1, 1949, Respondent had interfered with, restrained , and coerced its
employees in the exercise of the rights guaranteed in Section 7 of the Act and had
thereby engaged in unfair labor practices within the meaning of Section 8
(a) (1).
By its answer filed July 28, 1950 , Respondent admitted certain 'of the allega-
tions of the complaint as to the nature of its business , but it denied the com-
mission of any of the unfair labor practices charged in the complaint. Re-
spondent pleaded affirmative defenses to the alleged discriminatory discharges
which may be briefly summarized as follows : ( a) Coplen was not discharged
but was laid off for lack of painting work for which he was alone physically
and mentally capable of doing, and be was reinstated to such work on or about
April 27, 1950; ( b) Huddleston was a supervisor and was discharged for refus-
ing to perform the duties of a supervisor ; and (c ) Everett resigned , but would
otherwise have been discharged on account of his participation in an incident
involving dynamite, the circumstances surrounding which are fully set forth in
a later section of this Report.
The answer also contained a purported plea in abatement which sought to
attack the authorization of the charging Union to file the various charges on
behalf of the discharged employees . The plea was stricken on General Coun-
sel's motion as the hearing began on October 3, 1950. The answer also contained
purported exceptions to various paragraphs of the complaint charging certain
8 (a) (1) violations , which the General Counsel also moved to strike. Re-
spondent 's counsel conceded at the hearing that the exceptions were in effect a
motion that the complaint be made more specific. It was denied as such, and
the General Counsel's motion to strike the exceptions was also denied.
Pursuant to notice , a hearing was scheduled on September 19, 1950, at Fort
Stockton , Texas, before Trial Examiner Allan MacCullen , but pursuant to con-
tinuances ordered by Examiner MacCullen and by the undersigned Trial Exam-,,
iner, the hearing was continued to October 3, 1950.
Pursuant to said notices and said orders of continuance , a hearing was held
from October 3 to October 9, 1950, inclusive , at Fort Stockton , Texas, before
George A. Downing, the undersigned Trial Examiner , duly designated by the
Chief Trial Examiner . The General Counsel and Respondent were represented
by counsel and the Union by a representative. Full opportunity to be heard, to
examine and cross -examine witnesses , and to introduce evidence relevant to
the issues was afforded all parties.
As the hearing opened on October 3, Respondent objected to the hearing
going forward on grounds which may be stated as follows : ( a) That the office
of the General Counsel was not lawfully occupied and that there was no. one
present who was authorized to represent him; (b) that there had been no
WEST TEXAS UTILITIES COMPANY, INC., 1647
proper or formal continuance from September 25 to October 3; and (c) that.
only the Trial Examiner who had opened the case was authorized to proceed,
with the hearing. The objections were overruled.
On October 4 Respondent filed a lengthy amendment to its answer, which
included a motion to dismiss the complaint and the charges, and which may be.
summarized as follows : That the labor organization for whose benefit the-
charges had been filed were not Locals 898 and 920, but were separate units.
which had not complied with Section 9 (f), (g), and (h) of the Act; that said
facts were not disclosed to or known by the Regional Director, who made no,
investigation as to compliance by said latter labor organizations, and that.
there was, therefore, no jurisdiction by the Regional Director, the General
Counsel, the Trial Examiner, or the Board over the subject matter of the
charges or the complaint. The General Counsel moved to strike the amend-
ment. Ruling was reserved during the hearing, but at the close of the case the
Trial Examiner granted the motion to strike in a ruling and on findings which
were fully stated in the record?
During the hearing Respondent and the General Counsel made various motions
to strike or to dismiss portions of the complaint and to strike various portions
of the testimony, some of which motions were granted and some denied. Ruling
was reserved on Respondent's motion to dismiss the complaint as to the dis-
charge of J. J. Everett ; it is disposed of by the findings hereinafter made.
Ruling was also reserved on Respondent's motion to strike from the complaint
the names of G. A. Hollowell and Howington, by whom it was alleged Respondent
had committed certain unfair labor practices. Said motions are now hereby
denied.
At the conclusion of the hearing, the parties were afforded an opportunity to
make oral arguments and to file briefs, proposed findings of fact, and conclusions
of law. Oral arguments were made by the General Counsel and by Respondent..
Briefs have also been filed by the General Counsel and Respondent and have been
considered.
Upon the entire record in the case, and from his observation of the witnesses,.
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
West Texas Utilities Company, Inc., is a Texas corporation with its principal
office at Abilene, Texas. It owns and operates a public utilities system covering
approximately 45,000 square miles in 49 Texas counties, and it supplies electricity,
water, and ice services in 167 cities and communities.. It has electric transmis-
sion lines and industrial and rural distribution lines, exclusive of local dis-
tribution systems, totalling 2,983 miles. Its transmission lines connect with the
lines of 6 other public utilities companies, some of which are located in other
States than Texas. Through said connections Respondent delivers to or receives
from all of said companies electrical eneregy. During the year 1949 Respondent's
total operating revenues from electricity were $10,949,739.02, from water $481,-
636.08, and from ice $331,688.89, making a.total aggregate operating revenue of
$11,763,063.99.
Respondent's purchases in 1949 were in excess of $500,000, of which more than
75 percent was purchased for resale and was manufactured at points outside the
9 Respondent reargues the merits of its latter defense in its brief, but it is considered
unnecessary to lengthen this Report by repetition of the ruling and the findings which
were orally stated on 'the record and which fully disposed of Respondent 's contentitns.
1648 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.State of Texas. In 1949, Respondent delivered under contract 1,959,800 kilowatt
hours of Public Service Company of Oklahoma and received therefor the sum
of $13,320.
Those and many other facts pertaining to Respondent's operations were con-
tained in a lengthy stipulation entered into at the hearing and made a part of the
record. Though here adopted in full, it is considered unnecessary to lengthen
the report by setting forth the stipulated facts in extenso. Also see West Texas
Utilities Company, Inc., 88 NLRB 192, and West Texas Utilities Company, Inc., 85
NLRB 1396, 1406-9.
Respondent admitted, and it is hereby found on the basis of the foregoing facts,
that Respondent is engaged in commerce within the meaning of the Act.
11. THE LABOR ORGANIZATIONS INVOLVED
The International Brotherhood of Electrical Workers and Locals 898 and 920
:are each labor organizations admitting to membership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background; summary of main events and issues
The bulk of the alleged unfair labor practices occurred in connection with the
.operation of Respondent's power plant or steam generating plant on the Rio
Pecos River at Girven, Texas. That plant was operated during the period of
:alleged violations under the direct supervision of J. W. George, chief engineer,
and C. O. Holt, assistant chief engineer, who were conceded by Respondent to be
:supervisors within the meaning of the Act and who lived on the plant property
In company houses close to the power plant. Approximately 30 employees were
employed at the plant, a large proportion of whom also lived at the "camp" in
company houses and in close proximity to George and Holt.
Respondent's main office was located at Abilene, Texas, from which consider-.
able control emanated over Respondent's powerhouse operations. Its officials
.there, to the extent that they were indentified by the evidence and were directly
.or indirectly involved in the happenings, were Price Campbell, president, G. A.
Hollowell, production superintendent, Ralph Howington, chief engineer, and Ed
Hamilton, district engineer.
The employees at Rio Pecos had originally become interested in joining or
forming a union in 1948, but no overt action was then taken to organize. Interest
was actively revived in July 1949, and most of the employees (approximately 29)
joined Local 898 of IBEW on July 19, at a meeting held in the Bender Hotel in
McCamey. Melven F. Huddleston and J. J. Everett were the most active pro-
ponents of the Union, and they and A. M. Coplen were chosen or elected as
.officers of the Rio Pecos unit of the local.
There is evidence that at various times subsequent to July 1, 1949, George,
Holt, and Hollowell made certain statements which the General Counsel relies on
as supporting the allegations of interference, restraint, and coercion. On Sep-
tember 7,3 Respondent laid off Coplen for the asserted reason that it had decided
to shut down its painting. On October 3, a representation hearing was held on the
-petition of Local 898, at which Coplen, Everett, and Huddleston testified as wit-
nesses for the Union. On or about December 2, Respondent discharged Hud-
dleston for the asserted reason that he refused to accept the position of foreman
then offered to him. On or about December 15, Respondent constructively dis-
8 All happenings referred to herein occurred in 1949 , unless otherwise stated.
. WEST TEXAS UTILITIES COMPANY, INCI 1649
charged J. J. Everett (through forcing his resignation) for the asserted. reason
of his connection with a dynamite incident.
The material issues are (1) whether Respondent's supervisors in fact made the
various statements attributed to them by the General Counsel's witnesses and
whether such statements constituted interference, restraint, and coercion within
the meaning of the Act; and (2) whether Respondent was discriminatorily
motivated in laying off Coplen and in discharging Huddleston and Everett.
B. Interference, restraint, and coercion
The evidence concerning the statements which are asserted by the General
Counsel independently to constitute interference, restraint, and coercion will
be summarized under the names of each of Respondent's supervisors to whom the,
statements were respectively attributed.
J. W. George
A. M. Coplen testified that around July 10, George had two conversations with
him, in one of which George inquired what he knew of the "Union talk" that
was going around and in the other what Coplen "thought about the Union."
To the latter inquiry, Coplen responded in part that he did not think the Union
would hurt either George or Coplen or the Company, to which George replied,
"The hell it [won't]. Price Campbell came [near firing] me the other time
[there] was talking about the union, and he will damn sure fire me this time."
Coplen also testified that the day after the meeting on July 19, George inquired
whether it was a "safety meeting" which Coplen had attended at the Bender
Hotel ; that during the month of August, George again inquired what Coplen
"thought about this Union business," and stated, "Well, Cope, I hope you get on
the right side of this. I would hate to see you lose your job," and "we can
shut this painting down any time we want to," and that George also added,
"Now, Cope, I am not kidding about this thing. The company is not going to
take this laying down."
Coplen testified that around August 26 or 27 he held a union meeting at his
home at a time when his wife was away, and that the next morning George
said to him, "I am going to have to tell your wife about them parties you are
having down at your house." George subsequently denied knowing that the
meeting was a union meeting.
M. F. Huddleston testified that shortly after the organization meeting of July
19, George inquired the name of a relief engineer at the Monahans plant whom
Huddleston had previously introduced to George, and inquired further, "He
wasn't a goddamn organizer, was he?" Huddleston replied, "No, the Union
wasn't even mentioned," and George continued, "Are you damn sure of that?" 4
C. D. Horn testified that after the July 19 meeting George inquired whether
there had been union activities at the Quanah plant, where Horn had formerly
worked for Respondent, and that George inquired further whether Horn be-
longed to a union. Horn gave an evasive answer, and George continued that he
would hate to see Horn "lose any seniority over anything like that." George
also referred to a case of an old employee whose name he did not mention and
4 Huddleston also testified to an earlier conversation with George in 1948 concerning
union membership cards and J. J. Everett's connection with them. As that conversation
was outside the period covered by the complaint and outside the limitation period provided
by Section 10 (b), It is considered only as bearing on the motive for the discharge
of J. J. Everett.
953841-52-vol. 91-105
1650 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stated, "I think I have him on the right road, and I would hate to. see you lose
your seniority over it."
Questioned on cross-examination whether there were other instances in Which
George had discussed the Union, Horn testified that shortly after union activity
arose and 3 or 4 days before the meeting on July 19, George said to him, "I guess
you have heard this song and dance about this Union," and that "Well, I will
tell you now, it won't do you any good, so you want to think it over before you
get into anything you will regret."
F. M. Slaton testified that in July George. inquired whether he had heard "The
cock-and-bull story about the Union" ; that talk was "going around about the
Union" and that Slaton had "better kind of watch it or [he] might get in trouble."
F. A. Cowles testified that in July George inquired of a group consisting of
himself, V. L. Alderman and J. K. Elliott whether they had heard anything about
the Union.
V. L. Alderman testified that in July George inquired of a group consisting of
himself , Cowles, Jack Andrews, and one Adams whether they had "heard any-
thing about the Union talk that was going on." George's further remarks as
testified to by Alderman appeared to be clearly privileged under Section.8 (c).
F. S. Coughran testified to a conversation with George in August when George
inquired about and discussed with him his grievances against the Company.
However, nothing was said by George at the time which may be said to constitute
interference, restraint, or coercion, nor does it appear that the General Counsel
so contended.
Wavley Woodley testified that in May 1950, during a conversation with George
and Holt in which they were questioning him as to whether he had "a case against
the Company," George said, "I fired some of those union sons-of-bitches . . .
I fired J. Everett and Melven Huddleston over this." Woodley testified that dur-
ing the same conversation Holt said he was going to fire Coplen and that "Mr.
Huddleston, and J. Everett and Mr. Coplen were the main ringlers [ring leaders]
of the Union." On cross-examination, Woodley testified that both George and
Holt had made the latter statements, and that George had also said that he was
going "to fire the rest [of the Union members] if he could get ahold of them."
Respondent offered no testimony in rebuttal of the foregoing except for Holt's
denial that he or George made the statements which were alleged by Woodley to
have been made in Holt's presence. Respondent offered the testimony of George's
physician that George was in the latter stages of an incurable disease and that
he was not then nor would he later be able to testify. The physician had issued
a sworn certificate dated September 1, 1950, to the effect that at that time George
was not physically able to be up and about except for short periods of time, and
that "Due to the seriousness of his illness, with a guarded prognosis, he has been
advised to remain at bed rest for the next ten to fourteen days." Despite
knowledge of George's condition, Respondent made no application or attempt to
preserve George's testimony by deposition de bene esse.
C. O. Holt
Woodley testified that Holt questioned him several times as to his union mem-
bership ; that in July Holt spoke to him saying that he was leaving on his vaca-
tion and "for us boys to keep our mouths shut and stay out of this" and that
"Melvin Huddleston and J. Everett is going to get you boys fired." Woodley
also testified that after Holt's return he was present with Holt in McCamey at a
drug store one night when Holt commented on the presence of some of the em-
WEST TEXAS UTILITIES COMPANY, INC.: 1651
ployees in town and stated, "I think we are going to have a union meeting tonight."
Holt suggested they drive by the meeting place (the Bender Hotel) and they did
so. Holt recognized Garner Leech and Coughran and 'commented, "There is
Junior Leech there and some more of the boys standing around;" and "I wouldn't
have thought Mr. Coughran would have been in the Union."
Woodley also testified, as above recounted, that Holt and George had both
made the statement in May 1950 that Everett and Huddleston had been fired
and Coplen was going to be fired because they were the main ringleaders of the
Union. Holt denied making the statement and denied also that George did so.
Alderman testified that shortly after the statements by George in July 1949,
summarized above, Holt said to him and Woodley, "for us boys to stay out of
this Union, . . . and quit fooling around with Huddleston and them or we
was going to get fired, lose our jobs rather, and if we would stick with the com-
pany he would guarantee us a good raise."
When questioned on cross-examiniation, Alderman recalled a further incident
which he narrated as follows :
We were in the Owl Drug Store one evening, him and I talking, and I
asked him would he place someone on my shift where we could ride together,.
my expenses were just a little heavy for one man to be driving by himself
and he said yes, he was going to do all he could to- help us that way and he
said he never could tell whether I was in the Union or not.
Slaton testified that subsequent to his conversation with George in July, sum-
marized above, Holt was discussing the Union with him on a trip to town and
that Holt said, "Well you might get the Union in there but there are going to be
a lot of innocent men hurt."
Cowles testified that in July, when he was "slated for promotion to the tur-
bine room," Holt called him aside and stated that "if Mr. George thought I was
on the wrong side of the fence I may not get to go to the turbine room."
Cowles testified further that in August Holt brought up the subject again as
follows :
He asked me what I thought about the Union. Before I could answer
he said he didn't mean to be so direct but to just to keep my nose clean,
stay out of it and I would get to go to the turbine room, and repeated again
that if Mr. George thought I was on the wrong side I may not get to go.
Respondent offered in rebuttal of the foregoing only Holt's testimony. Holt
denied making the specific statements attributed to him, but admitted the occa-
sions on the incidents and admitted discussing the subject of the Union with
the employees. In fact, it is clear from Holt's testimony that he did not hesitate
to discuss the Union with them, because, he explained, he lived as a neighbor
and friend "with all the people out there." But he denied that he had "inter-
fered" or that he had made any statements that would cause them to fear their
jobs would be impaired. In Woodley's case Holt testified the subject arose
when Woodley asked him about the Union and that in Slaton's and Cowles' cases
the subject was part of a general discussion of working conditions and "the
unpleasant surroundings there at the plant between the men."
A. A. Haney, who was employed at Respondent's Abilene station, testified that
be was hired by Hollowell, and that he had informed Hollowell that he had
8 Holt also denied making , or being present when George made, any of the statements
which Coplen testified to. However, Coplen had testified to no statements made by Holt,
nor did he testify that Holt was present at the time of the conversation with George.
1652 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
G. A. Hollowell
helped to organize the Commonwealth Edison Company in Chicago where he
Was formerly employed . He testified that union activity began at the Abilene
station around November 1; 1949; that he was selected as chairman of the unit
of Local 920; and that on November 19, Hollowell had the following conversa-
tion with him :
"Haney, just so we keep the charts straight , I think you are about that
big. [making a gesture with his fingers ] . . . I believe you engineered
this whole thing." I said, "What are you referring to." "You know damn
well what Lam referring to. If I find out that it was you that engineered
this you are through . It is your ass." I told him "Well " I said "was it
the Union ?" I said, "If that is your personal opinion of me I don 't give a
damn, but if it is the Union you are referring to, I can join if I want to."
He said, "You boys asked for trouble and you are damn sure going to get it."
He said, you put me on the spot . I am going to fight it with everything I got."
I said, "You are going to fight a losing battle. We are going to get a Union."
He said, "I know you will, You will get a Union, but you are going to have
to fight for it. You got me on a spot, and I am going to cause you all the
trouble I can. ". . .. We went on and talked a while, and he said we
were paying money into a Union to a bunch of rabble -rousing organizers
living off the fat of the land of what we give them. He said , "I am through
with you. I am not going to do any more for you . If you want any more,
go to the sons -of-bitches-in Fort Worth and get it." 9
Hollowell was deceased at the time of the hearing. Respondent offered no
testimony in rebuttal of the foregoing, but moved to strike Haney's testimony
because Hollowell was dead and because Haney's testimony not having been
corroborated , was not of probative weight.
In support of its motion ( on which ruling was reserved and which is now
hereby denied ) Respondent cites in its brief the case of Linde Air Products Co.,
86 NLRB 1333. The Board there stated the rule to be that evidence of statements
attributed to deceased persons should be subjected to the closest scrutiny , but that
such evidence may be accepted as true where it is positive , unequivocal , and sub-
stantially corroborated by other witnesses ( citing Reynolds Wire Company,
26 NLRB 662 , enfd. 121 F . 2d 627 ( C. A. 7), and Quarles Mfg. Co., 83 NLRB 697).
The Board continued :
The testimony of Welch and Neal answers these requirements . Welch and
Neal have been employed by the Respondent for 10 and 12 years respectively.
There was nothing in the record to impeach their testimony . Neither of
them was discredited by the Trial Examiner . Jefferson 's remarks, further-
more, were consistent with the pattern of statements and conduct of other
supervisors showing hostility toward the Union and the practice of inter-
rogating employees concerning the Union and thus find substantial corrobora-
tion therein . Under these circumstances we find that the interrogation and
remarks attributed to Jefferson in fact took place. . . .
Haney's testimony similarly met the requirements of the rule . His testimony
was positive and unequivocal , and he was not shaken or discredited by the
cross-examination . Haney impressed the Examiner as a truthful witness and
as giving credible testimony ; and Respondent itself endorsed his credibility by
6 The IBEW headquarters for that area were at Fort Worth.
WET TEXAS UTILITIES COMPANY, INC., 1653
calling him as its own witness at a later point. Though there was no direct
corroboration by other witnesses, Hollowell's remarks were consistent with the
pattern of statements and conduct of other supervisors showing hostility toward
and intent to defeat union activities. Further corroboration was furnished by
Hollowell's own act, shortly after the Haney conversation in making the dis-
criminatory discharge of Huddleston, as hereinafter found.
In sum, the evidence furnishes substantial, though indirect, corroboration of
Haney's testimony, which is credited ; and it is found that Hollowell in fact
made the remarks attributed to him by Haney.
Coughran and J. J. Everett testified that in August Hamilton visited the
Rio Pecos plant and made inquiry as to what grievances they had against the
Company. Everett testified that Hamilton inquired specifically whether any
of the employees objected to'their supervisors and why they did not take their
grievances through their supervisors "instead of going through some other.
source." Though the latter statement clearly implied knowledge of organiza-
tional activity, there is no evidence that Hamilton made any promises or con-
ferred any benefits for the purpose of interfering with or forestalling union
activities.
Haney similarly testified to a conference called by Howington at Abilene on
November 24, 1949, when Iowington stated, "Well, fellows, there must be some
gripe you fellows got coming, otherwise you wouldn't have joined the Union.
I would like to know what your gripe is." Again there was no evidence that
Howington promised any benefits to forestall union organization.
The complaint did not include such statements among those which were
specifically alleged to constitute interference, nor did the General Counsel con-
tend by oral argument or brief that they qualified as such. It is concluded and
found that said statements did not constitute interference, restraint, or coercion.
The testimony of the General Counsel's witnesses above summarized stands
unrefuted except for Holt's denial of the specific remarks attributed to him,
as has been pointed out, and Holt admitted that he discussed the subject of
the Union with the employees. Though most of the statements testified to were
made on separate occasions and to single employees, many of them were of
similar character and content, and they disclosed that Holt and George were
pursuing parallel courses of action and a similar pattern of antiunion and
coercive conduct. The testimony of the witnesses may, therefore, be regarded
as mutually corroborative. The Examiner credits the testimony of the witnesses
for the General Counsel and finds that Respondent's supervisors, in fact, made
the statements respectively attributed to them.
It is therefore concluded and found, on all the evidence, that by the interro-
gation of employees concerning union membership and activities, by warnings
to refrain from participation in such activities, by threats of loss of employment,
of seniority, and of other benefits to result from participation in such activities,
by promises of wage increases and other benefits, condition on abstinence from
union activities, and by Holt's surveillance of a union meeting, Respondent
interfered with, restrained, and coerced its employees in the exercise of their
rights guaranteed in Section 7 and thereby engaged in unfair labor practices
within the meaning of Section 8 (a) (1).
C. Discrimination
1. The layoff of A. M. Coplen
Coplen had been employed by Respondent as a painter since September 1943,
except for an interval of 6 or 7 months. Coplen was the only employee em-
1654 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployed regularly in doing painting work and he sometimes also did repair work,
plumbing, etc., when the repair crew was short-handed. Sometimes, also, mem-
hers of the repair crew were called on to assist Coplen in painting for a day
or 'two.
Coplen attended the organization meeting on July 19, joined, and at a later
meeting in July or August was selected chairman of the executive board of
the unit. George's threats to Coplen regarding possible loss of his job because
of the Union have been summarized under Section III (B), supra.
On September 6, George notified Coplen that, "We are going to shut the paint-
ing down after today." The next day George paid Coplen off stating that,
"Now this is probably a temporary lay-off, I don't know when we will call you
back.' We may." Coplen testified that he accused George of making the
layoff on account of the Union, but that George denied it and denied knowing
which side Coplen was on, repeating "We will probably call you back."
Coplen was. actually recalled and reinstated on April 27, 1950, and was in
Respondent's employ at the time of the hearing.
The evidence is undisputed that painting work was continued most of the
time during the period of Coplen's layoffs by members of the repair crew.
Respondent pleaded the following affirmative defense in its answer :
The said A. M. Coplen was laid off for the lack of painting work for
him to do, and he was not physically or mentally equipped to fill any other
position, nor was there any work whatsoever for the said A. M. Coplen to
perform for the Respondent at the time that he was laid off.
Respondent offered no evidence whatsoever in support of its defense. Coplen
had frequently been assigned to the performance of other work, assisting the
repair crew, and there was no evidence that he was not physically or mentally
equipped to perform such other work.
That Respondent's motive in laying off Coplen was discriminatory is too
patent from the testimony summarized in this and the preceding section of the
Report to require analysis. George and Holt, the immediate supervisors at
Rio Pecos, and Hollowell at Abilene, were openly committed to, and actually
conducted, a forceful campaign of coercion and discrimination to defeat the
Union.
Respondent was obviously aware of Coplen's membership and position in the
Union through its campaign of interrogation regarding union membership and
activities, through George's oblique inquiries of Coplen concerning two union
meetings which Coplen had attended, and from Holt's surveillance of the union
meetings in McCamey.. Positive proof of such knowledge was furnished by
Woodley's testimony as to the statements by Holt and George in May 1950, that
Huddleston, Everett, and Coplen were the main ringleaders of the Union?
It is, therefore, concluded and found that in laying off Coplen on September 7,
Respondent discriminated against him in order to discourage membership in
the Union, and thereby engaged in unfair labor practices within the meaning
of Section 8 (a) (3) and (1).
2. The discharge of M. F. Huddleston
Huddleston was employed by Respondent in December 1945 as machinist at
the Rio Pecos plant and was carried under that job classification on Respond-
T Woodley further testified that George and Holt also then said they were going to fire
Coplen. Coplen had been laid off the preceding September and reinstated in April. It
is concluded that Woodley misunderstood the tenor of the statements insofar as they
related to Coplen's layoff and that such statenrents related to the fact that he had been
fired ' (along with Huddleston and Everett) because he was one of the ringleaders of
the Union.
WEST TEXAS UTILITIES COMPANY, INC. 1655
ent's payroll -records throughout his employment. However, he was called
upon frequently to'serve as turbine operator, shift operator, or shift engineer
(as the job was variously referred to in the record) in the event of the absence
of one of the regular operators.
Huddleston joined the Union at the meeting on July 19, and was selected as
chairman of the Rio Pecos unit of Local 898. That his connection with the
Upton. was .well known to Respondent is established by the testimony of Wood-
ley and Alderman summarized under Section B, by Huddleston's testimony as
to his discussions, as representative of the Union, with Hollowell and George
regarding the discharge of James K. Elliott, another union member, and finally
by Huddleston's testimony in the representation hearing on October 3 in which
be identified himself as chairman of the unit.
On December 2, Huddleston was called into George's office by Hollowell and
George. Huddleston testified that Hollowell then informed him that Respondent
was going to set him up as a foreman and give him a 5-cent raise, but there
would be no change in his duties and that he would "just go on working with
[his] tools." When Huddleston inquired specifically if they wanted him "to
lay down [his] tools and supervise this job" (italics supplied), Hollowell re-
plied "No, just go on and work with your tools as you are."
Huddleston requested time to think about the matter, and after talking with
Everett- he decided that Respondent's offer was a ruse to confer pretended su-
pervisory status and to lay the basis for his discharge. He therefore informed
Hollowell that he had decided not to accept the offer. Hollowell replied "I
thought you would take that attitude and there is only one way out and that
is to fire you." There followed a discussion in which Hollowell admitted that
Huddleston's work had been entirely satisfactory and in which Huddleston ac-
cused Hollowell of firing him because of this union activity, to which Hollowell'
replied "We won't go into that." Huddleston was paid off the next day and
has not since been reinstated.
Respondent had not, prior to Huddleston's discharge, contended he was a su-
pervisor; it never objected to his membership in the Union, his chairmanship
of the unit, nor to his representation of the Union in conferences and discussions
with Hollowell and George ; and there is no evidence that Respondent attempted
to classify any of the other shift operators as foremen or supervisors, as it did
in Huddleston's case.
Respondent's answer pleads the following affirmative defense :
Respondent admits that it discharged Melvin F. Huddleston for the reason
that he was a supervisor of Respondent, and he refused to perform the
duties of a supervisor, as well as insisting upon unlawfully interfering with
the rights of Respondent's employees pursuant to the Labor Management
Relations Act. That Respondent could not use the said Melvin F. Huddleston
in any other position than that of a supervisor, which duties he had been
performing for Respondent since shortly after his employment by the said
Respondent.
During the oral argument Respondent's counsel conceded that the only issue
was whether Huddleston was a supervisor. In its brief, however, Respondent
reverts to. the position asserted in its answer, arguing that Huddleston's rejection
of Respondent's offer was "tantamount to a refusal to act in the capacities that
he had theretofore acted in, which, within themselves, would make him a super-
visor . . . and left no alternative- than for the company -to either discharge, or
demote Mr. Huddleston...
It is unnecessary to belabor at length the question whether Respondent was
motivated by Huddleston's rejection of its offer in discharging him, since evidence
1656 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
previously summarized clearly established that Respondent desired.. to rid itself
of Huddleston and of other leaders in the union activities. . See for example
the testimony of Woodley,and Alderman as to Holt's statements--prior to the
discharge and Woodley's testimony as to George's statement in May 1950 "I
fired some of these union sons-of-bitches. . . . I fired J. Everett and Melvin Hud-
dleston over this." It is therefore concluded and found that Respondent dis-
charged Huddleston because of his union membership and activities.
The issue remains whether Huddleston was employed as a supervisor as con-
tended by Respondent and was thereby excluded from the term "employee" and
from the protection of the Act. That issue splits into two parts, one whether
Huddleston was a supervisor when working as a machinist, and the other,
whether he was a supervisor when working as a turbine operator or shift engi-
neer. Huddleston's time sheets introduced in evidence indicate that he spent
approximately 40 percent of his working time during the year 1949 in the latter
capacity.
In both jobs, there is no question under the evidence that Huddleston was with=
out authority in the interest of Respondent to hire, transfer, suspend, layoff,
recall, promote, discharge, assign, reward, or discipline other employees, to
adjust their grievances, or to effectively recommend such action. There is evi-
dence that George, in one or. two instances, inquired of Huddleston what he knew
or thought of an applicant's qualifications for employment, but such inquiries
were to obtain information and there is no indication that they were put as a
request for a recommendation or that they were acted upon or given weight as
such. The issue therefore narrows to whether Huddleston, when working in
either capacity, had authority responsibly to direct other employees and
whether the exercise of such authority, if it existed was of a merely routine or
clerical nature, or required the use of independent judgment. °
When working, as a machinist, Huddleston clearly had no such authority. The
only other machinist, Garner Leech, did work entirely different, and did not
work under Huddleston's supervision or direction. Much of Huddleston's work
was performed alone, but frequently he and members of the general repair or
maintenance crew were given assignments by George, who directly and im=
mediately supervised all repair and construction work. Because of Huddleston's
experience and higher skill, he was generally looked upon as the leader of -such
crews, but was at. best a working foreman on such occasions, passing on to the
men such orders as George or Holt might transmit and making suggestions or
giving advice as to how to carry out the more difficult phases of the assignment .8
It is concluded and found that Huddleston was without authority responsibly
to direct the employees on such occasions and that, at best, such directions as he
gave were purely of a routine nature and did not require the use of independent
judgment.
Huddleston's duties as turbine operator or shift engineer require somewhat
more detailed consideration. The power plant proper consisted of one turbine
room and a boiler room which were in the same building but on different levels.
-There were three turbines and five boilers. A shop occupied a separate building,
and the water treating plant and a storehouse still another. The plant proper
was operated continuously by three separate shifts of employees, consisting of one
turbine or shift operator, one fireman, one oiler, and one employee at the water
treating station.
8 That Respondent did not consider the machinist 's job to be of supervisory status, even
with the addition of the proposed classification of "foreman " seems clear from Huddleston's.
testimony that Hollowell wanted him to continue working with his tools and did not
want Huddleston "to lay down his tools and supervise the job."
WEST TEXAS UTILITIES COMPANY, INC. 1657
Orders as to the load .to be carried from time to time by the Rio Pecos plant
were received over the telephone by the shift engineer from the dispatcher at
McCamey or from the main dispatcher at Abilene. Such orders controlled the
.operations of the power plant since the extent of the load to be carried directly
affected the number of turbines to be operated and the number of boilers as well
as the pressure to be maintained on the latter..
Since the changes in load affected the duties of the firemen and oilers, the
shift engineer immediately notified them by means of a buzzer or signal system
of such changes. There is no evidence that Huddleston gave any orders or
instructions to the fireman or oiler, save the routine signalling of the dispatcher's
orders, nor is there evidence-that he directed or supervised the water treater
or any other employees.
Conflicting and ambiguous ;evidence was offered as to the extent to which the
,shift engineer was responsible for the power plant machinery. A notice dated
January 18, 1949, signed by Holt and addressed to all employees, had read :
It is the order of the Chief Engineer that no one, except the Operating
Crew make any changes in any of the machinery in service. The shift
engineer is in charge of all machinery while it is in service and should be
notified before any change is made. In some cases it will only be necessary
to-notify the fireman or oiler and they will notify their 'engineer if they
think it necessary.
A subsequent notice issued by Holt on June 26, 1950, and addressed to engi-
neers and firemen read :
Until further notice we will carry 300# on the small boilers and #5 boiler
should carry about 304# during the full load periods. On less than a full
load carry the small boilers at 290# and #5 at 295#.
This increase in pressure will help us get over the peak and also help
the efficiency of our.plant.
The latter notice clearly implies that Respondent considered that firemen and
engineers were of equal responsibility in the performance of their respective
jobs. Furthermore, the issue as to responsibility over machinery is immaterial,
since the Act speaks in terms of supervision of men, not machinery.
That the shift engineers, firemen, and oilers were considered responsible for
their respective jobs and that the, engineer had no supervision or responsible
control over either the fireman or the oiler, is emphasized by the fact that the
three .of their kept separate logs, each of which was turned in directly to and
reviewed by Holt, and that Holt took up directly with the respective employees
any matters requiring attention as reflected by the logs.
Holt testified that he had "absolutely" given Huddleston "special authority" to
permit the fireman, oiler, and 'water treater to work overtime and to take time
off. That testimony is not credited. Huddleston denied that he had such author-
ity, and Holt's claim was weakened by his ambiguous and conflicting testimony
on cross-examination concerning the grant of such authority :
Q. . . . When did you give.him that authority?
A...I,couldn't remember the exact date I gave him special authority. It is
a known fact that the engineer or shift engineer had that authority.
Q. You never, in fact, did give him that authority, did you, personally?
A. I don't know whether I did or not. I probably did in discussing the
shift operation because I did with every other shift engineer. Still do.
(Italics supplied.)
Respondent in oral argument and brief relied on Ohio Power Company v.
N. L. R. B., 176 F. 2d 385 (C. A. 6), cert, den. 338 U. S. 899. That case is
1658 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obviously inapposite in view of the wide difference in the authority exercised
by the control operators whose status was there in question . Thus, the court
observed that such operators at all times directed the assistant control operator
and the auxiliary equipment operator ; that they had authority in time of emer-
gency to requisition any men on the spot, in fact to direct the activities of sub-
stantially all the employees at the plant, and had on various occasions used
that authority. ,
There is no evidence that Huddleston had or exercised any comparable author-
ity. Huddleston testified that occasionally , in event of a minor mishap , he might
call on the fireman and oiler for help and that the three of them would make the
necessary repairs or adjustments , but that if the mishap were more serious,
he would call George.! Cf. Texas Electric Service Company , 77 NLRB 1258.
The inference is justified that the fireman would similarly call on the oiler and
engineer for help if necessary to make minor repairs and adjustments to the
boilers or their equipment.
Respondent also relied in oral argument on the case of Southwestern Electrical
Service Company ( 89 NLRB 114 ). That case is also inapposite . The Board
there found it unnecessary to consider the duties of the shift operators but held
them to be supervisors because shortly before the proceeding , the employer had
given them the right effectively to recommend changes in the wage status of the
boiler operators and turbine operators , whose work they directed.
It is therefore found on all the evidence that Huddleston was not, at the time
of his discharge , and never had been, employed as a supervisor ; that Respond-
ent's offer was not made in good faith , but to obtain colorable grounds for
discharging him ; and that in making such discharge , Respondent was motivated,
not by rejection of its offer , but by Huddleston 's leadership in the Union. It is
therefore concluded and found that by discharging Huddleston on December 2,
1949, Respondent discriminated against him in order to discourage membership
in the Union, and that it thereby engaged in unfair labor practices within the
meaning of Section 8 ( a) (3) and (1).
3. The discharge of J. J . Everett
Everett was first employed by Respondent in November 1941, went into the
Navy a month later, and returned to Respondent 's employ at the Rio Pecos plant
as an electrician in September 1945. He became interested in the Union in 1947
and became a member. He also solicited other employees to join but was un-
successful in arousing interest . Organizational interest was aroused in 1948,
and Everett contacted Null of IBEW at the request of some of the employees,
but Null advised awaiting the outcome of a petition by the linemen. Although
Everett had signed tip on membership application cards most of the employees,
activity quieted down.
That Respondent was aware of that union activity , however, and of Everett's
connection therewith , is established by Huddleston 's testimony that during the
fall of 1948 George had queried him about union cards and how many of the
employees had them and that George said , "I know who is the instigator of this.
It's J . J. Everett . . . . If Abilene finds out they will want me to fire him for
that." Huddleston 's testimony continued :
And I said , "I don 't think you can fire a man for that , can you , Jack?"
and he said , "You can always find something to fire a man for." I said,
9 As previously found, George and Holt lived in close proximity to the plant. They
could be reached by telephone and could be available on a few minutes ' notice.
WEST TEXAS UTILITIES COMPANY, INC. 1659
"Well he is a pretty valuable man, a good man, that would be pretty hard
to do." He said, "I know it. I can find some reason to fire him." .
It was Everett also who made the contact with Null in July 1949, as a result of
which the organizational meeting was held on July 19 ; and Everett was selected
as vice chairman of the Rio Pecos unit. Everett also testified as a witness for
the Union at the representation hearing on October 3, and identified himself as
vice chairman of the unit.
Around December 4 or 5, Null called Ted Morrow, of the United States
Mediation and Conciliation Service, informed him that a strike vote had been
taken by the union members because of a cut in hours, and requested Morrow
to contact Respondent immediately and ascertain whether it would restore the
cut. Within a few days Respondent placed the plant under guard by J. E.
Simco, an ex-sheriff, and a crew of guards whom Simco hired and supervised
but who were Respondent's employees.10 Simco was, on his request, given a
deputy's commission by Sheriff V. O. Earnest, who contemporaneously had picked
up from Everett and revoked a commission Everett had obtained a few days
previously.11 Everett inquired why his commission was being revoked and
Earnest told him it was nothing personal but he was placing Simco in charge of
the guards at the power plant and that Everett should ask Simco anything he
wanted to know.
Later, Simco asked Everett what the trouble was and Everett denied that
there was any trouble. Everett testified, however, that he informed Simco that
the Union was going to bring a contempt action against the Company to stop it
from firing the employees for union activity and that he hoped it cost the Com-
pany a hundred thousand dollars before they got through with it. Simco testi-
fied that Everett's statement related to the loss of his commission, and that
Everett said he would see that that cost the Company a hundred thousand
dollars 22
A few days later Everett and Simco, who apparently remained on quite
friendly terms throughout the occurrences, were joking about the guards and
Simco jokingly suggested that Everett liven things up by setting off some fire-
crackers. Everett subsequently made two attempts to procure firecrackers but
failed. Later in company with Garner Leech, Everett visited the ranch of the
Pool brothers and in conversations with them joking reference was made to. the
guards at the plant, and one of the Pools offered Everett some dynamite which
he might use to wake up the guards. Though the Pool brothers had 12 full
sticks of dynamite, what they actually gave to Everett was approximately 3 to
4 inches off the end of a stick. Everett divided the dynamite into 7 small pieces
10 Sinrco, a witness for the General Counsel, testified that Hollowell stated in hiring
him that the Company had information that "drastic action" might be taken against it,
from which Simco inferred it was expecting the possibility of harm to the plant or
machinery.
11 Everett claimed to hold a commission from Earnest since June 8, 1948. Earnest
denied it, and stated that if Everett had held an earlier commission it had been issued
by Earnest's predecessor in office. Earnest testified further that the issuance of the
commission to Everett a few days earlier was the result of a misunderstanding, as he
assumed the request for the renewal related to the commission which Holt held. The
issue is immaterial since the General Counsel does not contend that the revocation of
the commission constituted interference, restraint, or coercion by the Company. Indeed,
at the conclusion of the testimony the General Counsel abandoned his earlier contention
that Sheriffs Earnest and Echols were acting as Respondent's agents, and be joined in
Respondent's motion to strike their testimony (except to the extent that they acknowledged
their conversation with Simco) as not having been connected.
12 Regardless of which version was correct, it is obvious that Simco's version was the
one which would have reached the Company.
1660 DECISIONS.OF 'NATIONAL LABOR RELATIONS BOARD
,about cigarette size and wrapped them separately in envelope paper and-later
buried them in a pasture approximately 150 yards from the plant. His in-
tention was to procure caps and fuses, which one of the Pools promised to get
,for him, and to set off the dynamite along the fence around the plant property
;in order to scare the guards.
Before Everett could carry through his plans, the rumor had reached. George
and Simco that the Pools had given Everett and Leech 'a quantity. of dynamite,
and Simco immediately began an investigation. Simco'§ information, which had
emanated (by way of double or triple hearsay) from the wife of one of the
Pools, was that the brothers had given Everett and Leech three or fouj" sticks of
dynamite. Simco was unable to verify Everett's claim that he had a much
smaller quantity because the Pool brothers and Leech who alone knew the
facts, refused to make any statement to Simco or to the sheriffs, who had at
Simco's request, picked up the Pool brothers and questioned them about the
incident. Furthermore, Simco testified credibly that though he urged Everett
to go with him and get the dynamite to avoid any accident, and though Everett
agreed to do it, Everett told Simco later that he had got up in the middle of the
night, got his shotgun, walked about a mile, dug up the dynamite, and thrown it
in the river. The next day Everett took Simco to the spot where the dynamite
had been buried, showed him the hole, and also showed him the place in the
river where he claimed to have thrown the dynamite. George drove by as they
left the river and Simco rode back with George entrusting his own car to
Everett.
Simco held two or more meetings with Leech and Everett in the Bender Hotel
in McCamey regarding the dynamite and at least one other with Everett when he
took Everett's resignation . as later recounted. Everett testified that he con-
vinced Simco that the whole incident was a joke which Simco had himself
inspired, and that Simco acknowledged his responsibility and promised to advise
the Company of his view that the incident was a joke and that it should be con-
sidered as closed. Simco, though admitting that he had jokingly suggested that
Everett shoot off some firecrackers, denied that he suggested dynamite, denied
that he had ever made up his mind that the incident was a joke, that he told
Everett he so considered it, or that he agreed to so report to the Company. Simco
also testified that after his visit with Everett to the place where Everett had
allegedly hidden the dynamite and to the spot on the river where Everett had
allegedly disposed of it, he reported the incident to Hollowell, but denied that he
,suggested that it be considered as closed and cleared up." Hollowell directed
Simco to report the matter to the district attorney. Simco did so, and inquired
of the district attorney whether there was any criminal violation .attached to
such an incident. The district attorney suggested that Simco get the evidence
and present it to the next grand jury.
Simco thereupon requested Sheriffs Earnest and Echols to pick up the Pool
brothers for questioning, or further questioning, about the dynamite. He also
bad a further conference with Everett and Leech at the Bender Hotel. Everett's
testimony as to the conversations at that conference and at the final one can be
summarized as follows :-
Simco informed him that the Company did not accept the incident as a joke
but looked on the matter very seriously ; that inasmuch as Everett and Leech had
13 In response to a question by the Trial Examiner, Simco testified that when he went
to see Hollowell, the dynamite had already been cleared up. It is clear from all of Simco's
testimony that that statement was not in isolation intended to be taken literally, but that
Simco meant that Everett's explanation had cleared up the question of the existence of
the dynamite (whatever quantity Everett had had) as a possible danger to the power plant.
WEST TEXAS UTILITIES COMPANY, INC. 1661
not made a statement , they were forcing Simco to swear out a warrant .against
them and throw them in jail and that he was also making arrangements to
have the Pool boys apprehended by the authorities in Pecos County. Everett
asked just exactly what it was the Company wanted. Simco said it wanted his
resignation . Everett asked whether, if he resigned , the Company would agree
to let the Pool boys and Leech alone. Simco said the Company would do so
and asked Everett to write a sample copy of a resignation letter and present it
to him the following morning.
The second day after that Everett again saw Simco, at his request, in the
Bender Hotel. Leech was not present. Simco stated that the proposed letter
was not satisfactory to the Company inasmuch as Everett had made .the resig-
nation effective January 31, 1950. Simco said, "The company wants to get rid
of you and they want to get rid of you right now." Simco repeated that Everett
was forcing him to swear out a complaint and that he was also going to have to
make arrangements to place Everett under arrest if necessary , and also to have
the Pool boys arrested.
Everett inquired what terms the Company would accept in the form of a
resignation, and Simco stated it would accept an immediate resignation.
Everett explained that due to his financial situation he was not able to tender
an immediate resignation or to move out of the company house, nor would
he be able to do so before January 31, 1950; that he had planned to move to
Lorraine, Ohio, or Altoona, Pennsylvania, and that he needed the amount of
approximately 11/2 months' wages. Simco suggested that he might make a per-
sonal loan to Everett, and left the room for a while. When he came back he
stated the amount, $375, which Everett had specified, would be satisfactory and
requested Everett to write out a new letter of resignation effective December
.15, 1949. Everett did so. In the meantime George had appeared. Simco
requested George to procure a blank check and a personal note and George
later returned with "the blanks. Simco made out his check and George took it
out and cashed it. Everett signed the note, delivered it to Simco, received
$375; and delivered his resignation. Simco accepted it and agreed that Everett
could have any length of time he desired to move out of the Company's house
and such amount of time and materials as were necessary to rebuild a trailer
which Everett needed for moving his personal effects. Simco requested that
Everett keep the loan confidential.
Everett also testified that Simco informed him that Hollowell had agreed to
give Everett any letter of, recommendation that he might need, and that he later
spoke to Hollowell about it and Hollowell agreed to give such a letter as to
Everett's ability.
Simco's version of the Bender Hotel conferences is not in substantial conflict
with Everett's except on a few details. First, he denied having concluded that
the matter was a joke because he explained he had not seen the dynamite and
did not know how much there was of it; that Everett had only showed him the
hole in the ground where he claimed to have hid it and the place in the river
where lie claimed to have thrown it. Simco denied also that he requested
Everett's resignation, but testified that Everett himself made the original sug-
gestion that he resign. Simco admitted informing Everett that the post-dated
resignation was not acceptable and that the Company wanted an immediate
resignation. Simco also admitted making the loan, but,testified that the Coin-
pany had nothing to do with it and that in fact it objected to Simco making
the loan personally. Simco admitted that though his investigation had led-
him to believe the dynamite had been given to both Everett and Leech, he made
no attempt to procure Leech's resignation. •
1662 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leech admitted. accompanying Everett to the Pools' ranch but denied being
present when. the dynamite was delivered and denied having any actual knowl-
edge that. Everett had any dynamite or the amount which he had. Leech
admitted having told Cain, Respondent's counsel, he knew nothing about Everett
having any dynamite-and testified that, in fact, all he knew about the dynamite
was what he heard-Everett tell Simco in the hotel room. Leech also testified
that either in the first or second hotel conference Everett inquired of Simco
whether the Company wanted him to quit or to get him.fired and that Simco
responded in effect "Well, what would you do in their case?"
The Pool brothers' testimony corroborated Everett as to the circumstances
surrounding the delivery of the dynamite and the amount, delivered. They ad-
mitted that they refused to give Simco and the sheriffs a statement regarding
the matter. Their testimony is otherwise of no significance to the issues.
The procuring of Everett's resignation did not conclude the dynamite episode.
Cain, Respondent's counsel, came to McCamey within a few days and resumed
the investigation of the matter. In the meantime Everett had been permitted to
continue his occupancy of the company house at the camp and to work on his
trailer there; he was given free access to the plant, without guard, and was
permitted to use the company tools in the plant.
As a part of Cain's investigation he had George bring Everett into the
company offices in McCamey. Everett testified that he reminded Cain the
whole thing was a joke and asked if Simco had not so represented it. Cain
did not reply. Everett told Cain the entire story as he testified to it on the stand.
Cain attempted by his questioning to link the incident up with the Union and
with Null, but Everett denied that there was any connection. Cain inquired
whether Everett thought he had resigned under pressure and Everett said
he did think so. Cain produced the resignation and stated that in that event.
it was worthless. Cain inquired whether Everett wanted to go back to work for
the Company, but stated that he [Cain] could either tear up the resignation
or fire Everett, if he wanted to, or whatever else he decided upon. Everett dis-
claimed any desire to go back to work for the Company at that time and stated
that so far as he was concerned the Company had accepted his resignation. and
he had been paid off. On cross-examination Everett testified he informed Cain
that Cain was afraid he might file a charge, but that "you [Cain] don't have
to worry about that because I am not interested in going back."
Respondent called, to refute Everett's testimony about the Cain interview,
Mrs. John Bruton, Respondent's stenographer, who had been present during
the interview. She testified that Cain offered back Everett's resignation and
his job if Everett wanted them ; but that Cain stated he would continue and
complete his investigation and then recommend to the Company whether Everett
should be discharged, and that Everett should make up his mind of his own free,
will. Everett, called in rebuttal, repeated his version of the Cain interview,
but added in conclusion that he did not, in fact, understand that Cain had offered
him his job back. 14 The latter testimony appears to be in conflict with Everett's
testimony on his original appearance that Cain offered to tear up the resigna-
tion and asked him- if he wanted his job back, but in which Cain intimated
that he would discharge Everett after completing the investigation.
14 The General Counsel also attempted to develop a new line of testimony by Everett
as to certain statements made by Cain about the Union. An objection was sustained on
:grounds that the new matter was not in rebuttal of Respondent's case and was, in fact,
without the scope of the pleadings since the complaint had not named Cain as one of
3tespondent 's agents by whom Respondent had allegedly engaged in interference , restraint,
and coercion.
WEST TEXAS UTILITIES COMPANY, INC. 1663
Everett testified further on his original appearance that he did not leave
the State as he. had- intended because of deaths in his wife 's family and that he
later decided that to vindicate his character he wanted his job back because
he had heard that company representatives were "circulating a lot of false
rumors around the town about [ him]." This was 3 or 4 weeks or longer after
the.Cain interview . However, the only application Everett made for rein-
statement was by a letter written to George sometime in the spring of 1950.
He received no reply.
Preliminary to resolving the issue of Respondent 's motivation under the
foregoing facts, it is necessary to determine whether Everett resigned as Re-
spondent contended , and when , or whether he was discharged , and when.
The evidence is clear and it is found that Everett 's tendering of his resigna-
tion to Simco as of December 15, was not his free and voluntary act, but that
he. was in fact forced or coerced into resigning . Recognition of that fact was
implicit in Cain's position as explained during his interview of Everett , as well
as during Cain ' s oral argument at the hearing . It is therefore found that by
forcing and accepting Everett's resignation on December 15, 1949 , Respondent
constructively discharged Everett.
But Respondent contends that Everett voluntarily resigned during the Cain
interview at the time Cain offered him back his resignation and his job. How-
ever, even though the Examiner hereby adopts the version of Mrs. Bruton as
to Cain 's remarks on the occasion , it is found that Cain 's offer was not an un-
conditional offer of reinstatement . Cain's statement made it clear that he
intended to continue his investigation and that Everett 's further tenure was
to be temporary or to be conditioned upon the outcome of that investigation.
Furthermore , this clearly meant to Everett that Leech and the Pools were
to be subjected to continued harassment , if not arrest as accomplices ; and
Everett's original resignation had been induced largely by his desire to protect
those whom he felt were blameless . It is therefore concluded and found that
under all the circumstances Everett did not voluntarily resign by rejecting
Cain's offer of reinstatement to his job and the return of his previous resigna-
tion.
This clears the way for consideration of the difficult and vexing question
whether Respondent discharged Everett for cause or whether it was motivated
instead by his union membership and activities . Certainly , it is clear that,
absent a discriminatory motivation , the dynamite incident would have con-
stituted grounds for Everett's discharge . It is just as clear under the evidence
that Respondent desired to rid itself of Everett whom it knew to be the "insti-
gator" and one of the "main ringleaders" in the union activity . The existence
of such desire would not , of course , preclude Respondent from discharging
Everett because of the dynamite episode, nor does the fact that Everett had
furnished Respondent with such an ostensible and "ready made" cause , preclude
a finding that the discharge was actually motivated by discriminatory con-
siderations . What it is necessary to determine is whether Respondent's con-
cern over the dynamite incident was the real reason for the discharge or whether
it pretended such concern as cover for the completion of its campaign of coercion
and discrimination.
Supporting Respondent 's claim that its concern was real are the following
facts : Respondent 's investigation established that Everett and Leech had
obtained an unknown quantity of dynamite and that Everett admitted he had
intended, setting it off on Respondent 's property . Respondent 's information
was that the quantity was three of four full sticks, which could have caused
1664 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
terrific destruction if detonated in or near Respondent's power plant 1b Re-
spondent was precluded from verifying Everett's claim that, he had a much
smaller amount by the refusal of Everett's accomplices to talk and by Everett's
own unexplained and suspicious act of digging up the dynamite and disposing of
it without showing it to Simco.16
Indeed Everett's actions, beginning with the burial of the dynamite and end-
ing with the disposition of it, together with his asserted explanation of such
disposition, were incompatible with his claim that the whole incident was a
joke. Certainly the simplest, if not the only logical way, to have convinced
Simco and to have satisfied Respondent was to have produced the few, small
pieces of dynamite, demonstrated their harmless condition and that they were
in practical effect a reasonable substitute for the firecrackers which Simco had
suggested. Instead, the actions of Everett, Leech, and the Pools threw such an
apparent aura of mystery around the incident as might well have justified
Simco and Respondent in doubting Everett's claim.
We turn now to the aspects of the evidence which cut against the view that
Respondent did doubt Everett's explanation and that it actually regarded the
matter as serious. Respondent had knowledge, of course, that Simco had himself
inspired the original idea of a joke and that Everett claimed his actions to have
been pursuant thereto. Though Simco was not wholly persuaded that the entire
matter was a joke, his real concern over the incident seems to have ended when
Everett convinced him that he had irretrievably disposed of the dynamite.
That fact is apparent from his action entrusting his car to Everett immediately
afterwards and from his testimony that the matter of the disposition of the
dynamite had been cleared up before he went to see Hollowell. Simco's personal
loan to enable Everett to leave the State, also bespeaks Simco's confidence in
Everett and his apparent endorsement of Everett's reliability.
Furthermore, Respondent was aware, through George and Hollowell, of
Simco's loan and of its purpose to finance Everett's departure from the State.
Obviously, if Respondent seriously believed Everett guilty of a violation of a
criminal statute, it would not thus have acquiesced in an act which would
have removed Everett from prosecutions and which may technically have
rendered it and Simco either accessories after the fact or guilty of obstructing
justice.
. There is further evidence that Respondent did not view the matter as seriously
as it represented in forcing Everett to resign. First, despite insisting on an im-
mediate resignation, Respondent permitted Simco to make; and it honored, an
agreement that Everett might continue indefinitely to occupy a company house at
the camp. It also permitted Everett to complete there the repairs on his trailer
and to use for that purpose its tools at the power plant. Everett was not guarded
in any way during that period.
Respondent's failure to pursue Garner Leech is also of significance. It is
clear that insofar as Simco was able to determine, Leech was also a principal,'
because his information was that the Pools had given the dynamite to Everett
and Leech. Respondent's counsel conceded that Leech's denial of knowledge of,
and participation in, the dynamite episode was not convincing, nor could it have
15 Respondent was entitled also to consider in this connection Everett's statement to
Simco with reference to costing the Company $100,000. .
16 Everett's explanation of this act on cross-examination did not ring true : "It wasn't
that I feared detection of the dynamite, but I did fear that the Company would, or they
had already tried to claim, I had in my possession three sticks of it you see." Obviously
the production of the amount Everett claimed to have was the best possible way to
disprove the report that he had three or more full sticks.
-WEST TEXAS UTILITIES COMPANY, INC. 1665
been in-.the light of such information as Simco had been able to obtain from
others. Respondent's counsel also conceded during oral argument that in the
light of Respondent's investigations, Leech should also have been discharged,
and Cain represented that he had so recommended to Respondent ; but he argued
that such action had become unnecessary and impossible through Leech's volun-
tary resignation shortly after the separation of Everett. However, the record
establishes that Leech. did not leave the Company until April 1950."
In sum, regardless of what the evidence may have indicated as to the nature
of Respondent's motivation as of the time of taking Everett's resignation on
December 15, its subsequent actions in relation to Everett and Leech are in-
consistent with its position that Everett's resignation was taken because of his
admitted* connection with the dynamite incident. Any assumption that it may
have taken that incident seriously because of Everett's earlier statement to
Simco about costing the Company $100,000, is wholly overcome by its action
in allowing Everett indefinite occupancy of its house within the camp confines
and free access to the plant and use of plant tools. Similarly, Simco's investi-
gation had coupled Leech as a principal with Everett ; yet Simco admitted that
he made no effort to procure Leech's resignation and Respondent permitted him
to continue in its employ for four more months.
Final concession by Respondent that Everett's discharge was because of his
leadership in union activities was furnished by the statement made by George
and Holt to Woodley in May 1950, that Huddleston and Everett had been fired
because they were ringleaders in the Union.
Subsequent events, therefore, plainly disclosed that after Simco's report of
Everett's disposition of the dynamite, Respondent entertained no real concern
over the incident and that it certainly no longer, considered Everett as a source
of danger to its power plant. They disclose similarly that Respondent con-
tinued to pretend such concern only as a cover for forcing Everett's resignation
as a step in the completion of its campaign of coercion and discrimination to
defeat the Union.
Though a valid reason had existed which would have warranted Respondent
in discharging Everett, it is found that it acted, instead on the basis of anti-
union considerations and that its action was therefore discriminatory and pro-
hibited by the Act. Cf. Spencer Auto Electric Inc., 73 NLRB 1416, and cases
there cited at footnote 6. It matters not, of course, that for reasons apart
from union activity an employee deserves summary discharge if in fact the
reason was union activities. N. L. R. B. v. Electric City Dyeing Co. 178 F. 2d
980 (C. A. 3) ; Budd Mfg. Co. v. N. L. R. B., 138 F. 2d 86, 90-1 (C. A. 3.) cert.
den. 321 U. S 773
It is therefore concluded and found on all the evidence that Respondent dis-
charged J. J. Everett on December 15, 1949, on account of his union membership
and activities and thereby engaged in unfair labor practices within the meaning
of Section 8 (a) (3) and (1).
IN. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in Section III, above, occurring in con-
nection with the operations of 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 thereof.
1 Supplemental briefs were requested of all parties by the Trial Examiner, with particumr
attention to this point. Such briefs were received from the General Counsel and the
Union, but none was submitted by the Respondent.
953841-52-vol. 94-106
1666 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, it
will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act.
It has been found that Respondent laid off A. M. Coplen on September 7, 1949,
that it discharged Melvin F. Huddleston on December 2, 1949 , and that it dis-
charged J . J. Everett on December 15, 1949, because of their union membership
and activities . It will therefore be recommended that Respondent offer to Melvin
F. Huddleston and J . J. Everett immediate and full reinstatement to their respec-
tive former or substantially equivalent positions ( see The Chase National Bank
of the City of New York, San Juan , Puerto Rico , Branch, 65 NLRB 827), without
prejudice to their seniority or other rights and privileges . Since A. M. Coplen
was voluntarily reinstated by Respondent on April 27 , 1950, it will be unnecessary
for Respondent to offer reinstatement to Coplen.
It will also be recommended that Respondent make whole the said Huddleston
and Everett for any loss of pay they may have suffered by payment to each of
them of a sum of money equal to that which he normally would have earned as
wages from the respective dates of the discrimination against them to the date
of Respondent ' s offer of reinstatement , less his net earnings during said period.
Cf. Crossett Lumber Company, 8 NLRB 440, 497-8. It will be recommended that
Respondent similarly make Coplen whole for any loss of pay during the period
of Respondent 's discrimination against him. Said loss of pay shall be computed
on the basis of each separate calendar quarter or portion thereof during the
period from Respondent 's discriminatory action to the date of a proper offer
of reinstatement in the cases of Huddleston and Everett , and in Coplen 's case,
to his reinstatement on April 27 , 1950. The quarterly periods, herein called
"quarters," shall begin with the first day of January , April, July, and October.
Loss of pay shall be determined by deducting from a sum equal to that which
each said employee would normally have earned for each such quarter or portion
thereof, his or her net earnings , if any, in other employment during said period.
Earnings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter. In order to insure compliance with the foregoing
back-pay and reinstatement provisions , it' is recommended that Respondent be
required , upon reasonable request, to make all pertinent records available to the
Board and its agents . F. W. Woolworth Company, 90 NLRB 289.
It having been found that Respondent has engaged in certain acts of inter
ference, restraint , and coercion , it will be recommended that Respondent cease
therefrom.
The violations of the Act which Respondent committed are, in the opinion
of the undersigned , persuasively related to other unfair labor practices pro-
scribed by the Act, and the danger of their commission in the future is to be
anticipated from Respondent ' s conduct in the past18 The preventive purposes
of the Act will be thwarted unless the order is coextensive with the threat.
In order, therefore , to make more effective the interdependent guarantees of
Section 7 , to prevent a recurrence of unfair labor practices and thereby minimize
the industrial strife which burdens and obstructs commerce , and thus effectuate
the policies of the Act, it will be recommended that Respondent cease and desist
from infringing in any manner upon the rights guaranteed in Section 7 of the Act.
"Pertinent here for consideration also is Respondent 's past record of unfair labor
practices . See West Texas Utilities Co. v. N. L. R. B., 119 F. 2d 683 , enfg. 22 NLRB 522;
West Texas Utilities Company, Inc., 85 NLRB 1396, enfd . 184 F. 2d 233 (C. A. D. C.),
cert. den. Septenrber 28, 1950.
NEWARK NEWSDEALERS SUPPLY COMPANY 1667
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, Locals 898 and 920, AFL,
are each labor organizations within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of A.
Al. Coplen, Melven F. Huddleston, and J. J. Everett, thereby discouraging mem-
bership in a labor organization, Respondent has engaged in, and is engaging in,
unfair labor practices within the meaning of Section 8 (a) (3) and (1) of
the Act.
3. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, Respondent has engaged in, and
unfair labor practices within the meaning of Section 8 (a) (3) and (1) of
the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
NEWARK NEWSDEALERS SUPPLY COMPANY and JOSEPH J. TORINO
NEWARK NEWSDEALERS SUPPLY COMPANY and FRANK BAYAK, WILLIAM
BOOKER, LESTER CRISPIN , WILLIAM F. DALTON, RICHARD DEMPSEY,
ANTHONY M. GIANETTI , EDWARD HALUSZKA , STEVEN HALUSZKA,
EDWARD F . HEIMS, WILLIAM REIMS, JAMES MCGOVERN , ROBERT F.
MILLER, PHILLIP MISTRETTA , DOMINICK MONTAGNO , ARNOLD NASH,
FRANK F. NATALE, HERBERT A . SWEENEY, JAMES D. TASSINARO, WIL-
LIAM TFIOMPSON , FLOYD V. WESCOTT, and HENRY Y. WESCOTT.
Cases Nos. 2-CA-673 and 2-CA-697. June 08, 1951
Decision and Order
On December 28, 1950, Trial Examiner W. Gerard Ryan 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 take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
and the Union filed exceptions to the Intermediate Report; the Re-
spondent also filed a brief. The Board' has reviewed the Trial
Examiner's rulings made at the hearing and finds that no prejudicial
error was committed. The rulings are hereby affirmed. The Board
' Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations
Board has delegated its powers in connection with this proceeding to a three-member panel
[ Chairman Herzog and Members Houston and Reynolds].
94 NLRB No. 239.