Appalachian Electric Power Co.

National Labor Relations Board - Board Decisions

Feb 22, 1943

47 N.L.R.B. 821 (N.L.R.B. 1943)

I
In the Matter of APPALACHIAN ELEcrRIc,POwER COMPANY and LOCAL
UNION B-1182 OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS
Case No. C-237'6.Decided February 22, 1943
Jurisdiction : electric utility industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: circulation of union repudiation petition
on company time and property'with approval of management; departure from
policy of uniform wage treatment of employees by granting of wage increase
to unorganized employees and withholding wage increase from employees
represented by certified union pending bargaining negotiations.
Collective Bargaining: majority established by certification-respondent con-
tended that it was justified in refusing to bargain because by petition presented
to employer approximately 21/2 months after issuance of a Board certification
employees had revoked authority of certified union ; Board held that petition
was inefficacious to nullify certification, and that alleged defections were caused
by respondent's unfair labor practices.
Remedial Orders : upon request, to bargain collectively.
Unit Appropriate for Collective Bargaining : employees of one division of
Company.
Mr. Albert P. Wheatley and Mr. Jacob Blum, for the Board.
Mr. T. Justin Moore and Mr. Edmund M. Preston, of Richmond,
Va., and Mr. John L. Abbot, of Lynchburg, Va., for the respondent.
Mr. J. C. McIntosh and Mr. L. F. Daly, of Washington, D. C., for
the Union.
Mr. Eugene R. Thorrens, of counsel to the,Board.
DECISION
AND -
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on June 4,194 ' 2, by Local Union
B-1182 of the International Brotherhood of Electrical Workers, herein
called the Union, the National Labor Relations Board, herein called
the Board, by the Regional Director for the Fifth Region (Baltimore,
Maryland), issued its complaint dated August 14, 1942, against Ap-
palachian Electric Power 'Company, Lynchburg, Virginia, herein
47 N. L. R. B, No. 102.
821
822 DEIO SSOnS OF NATIONAL LABOR 'RELATIO'NS BOARD
called the respondent, alleging that the respondent had engaged in
and was engaging in unfair labor practices affecting commerce, within
the meaning-of Section 8 (1) and (5) and Section 2 (6) and (7) of
the National Labor Relations Act, '49 Stat. 449, herein called the Act.
Copies of the complaint and notice of hearing thereon were duly served
upon the respondent and the Union.
With respect to the- unfair labor practices, the complaint alleged
in substance: (1) that from on[ or about February '1, 1942, to and
including the date of issuance of the complaint, the respondent (a)
_urged, persuaded, and warned its employees to refrain from becoming
or remaining members of the Union; (b) threatened said employees
with discharge and other reprisals if they became or remained mem-
bers of the Union; and (c)' withheld salary increases from said e.n-
ployees in order to discourage membership in the Union; (2) that on
or about April 28, 1942, and at all times thereafter, the respondent
refused to bargain collectively with the Union as the exclusive repre-
sentative of its employees in an appropriate unit, although the Union
had been designated as their representative by a majority of such em-
ployees and had been certified by the Board as their exclusive repre-
sentative; -and (3) that by these-acts the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
On or about August' 26, 1942, the respondent filed its answer in
substance admitting certain allegations of the complaint concerning
its business activities but denying the alleged unfair labor practices.
Pursuant to notice, a hearing was held in Lynchburg, Virginia,
from September 3 through September 9, 1942-before Howard Myers;
the Trial Examiner duly designated by the Acting Chief Trial'Ex-
aminer. The Board and the' respondent were represented by counsel,
the Union by a representative. All participated in the hearing. Full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues was afforded all parties.
At the close of the hearing, the Trial Examiner granted without objec-
tion a motion of counsel for the Board to conform the pleadings/ to
the proof. During the course of the hearing, the Trial Examiner
made rulings on a number of other motions and on objections to the
admission of evidence. The Board has reviewed the rulings and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
Thereafter, the Trial -Examiner issued his Intermediate Report,
dated October 16, 1942, copies of which were duly served upon all the
parties, finding that the respondent had engaged in and was engaging
in unfair labor practices, within the meaning of Section 8 (1) and
(5) and Section 2 (6) and. (7) of the Act. He recommended, among
APPALACHIAN ELECTRIC POWER COMPANY 82a ,
other things, that the respondent cease and desist from engaging in
such practices and that, upon request, it bargain with the Union.
On November 21, 1942, the respondent filed exceptions to the Inter-
mediate Report, a motion to dismiss the complaint, and a brief in
'support, thereof. Pursuant to notice, a hearing for the purpose-of
presenting. oral argument was held before the Board in Washington,
D. C., on January 14, 1943. The respondent and .the Union were
represented by counsel 8r other representative and participated in
the argument.
The Board' has considered the exceptions, the motion to dismiss, and
the brief and, insofar as the exceptions are inconsistent with the find-
ings of fact,'conclusioiis of law, and order below, finds them to be
without merit. For the reasons hereinafter stated, the motion to-
dismiss the complaint is hereby denied.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, a Virginia corporation having its principal office,
at Roanoke, Virginia, is engaged in the production, transmission, and
.distribution of electric power in the States of West Virginia and Vir-
ginia. In both of these States the respondent operates a number of
generating plants connected by a 132,000-volt transmission line which
extends from the Ohio river, where it joins with a line of the Ohio
Power Company, south to Logan,-West Virginia, and thence east-
ward to Lynchburg, Virginia. This transmission line acts as a power
-pool, into which all the generating plants of the respondent pour
power to make up a supply which flows across two States, and which
is taken off as needed at the various substations of the respondent and
distributed to its customers. At two points on the Tennessee border
the line connects with the lines of the Carolina Power and Light
Company.
The respondent's system consists of four main divisions, of which
two are located in West Virginia, one in Virginia, and one partly in
each of these States. The easternmost of these divisions, located
entirely in Virginia, is known as the Roanoke-Lynchburg Division
and serves the two cities and surrounding rural areas.- The Roanoke-
Lynchburg Division is divided into two main operating units, the
Roanoke and the Lynchburg districts. This proceeding concerns only
the employees of the Lynchburg District. -
I
t
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE ORGANIZATION INVOLVED
Local Union B-1182 of the International Brotherhood of Electrical
Workers is a labor organization affiliated with the American Federa-
tion,of Labor, admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
Interference, restraint, and coercion; the refusal to bargain
collectively with the Union,
L The appropriate unit
The complaint alleged, as the Board found in its ' Decision and
Direction of Election, dated January 28, 1942,1 that all linemen,
groundmen, laborers,, street-light cleaners, troublemeri, electricians,
electricians' helpers; operators, metermen, cut-in men, meter helpers,
meter readers, appliance servicemen, -the- storeroom helper, mainte-
nance Inen, mechanics' helpers, inspectors, and car washers employed
by the respondent in.the Lynchburg, Virginia, District, excluding
surveyors, rodmen, and janitors, and sales, accounting, clerical, and
supervisory employees, constituted a unit appropriate for the purposes
of collective bargaining.2 In its answer the respondent denied that
such unit was appropriate but introduced no, new evidence in the
'instant proceeding ,to support its contention. We have reviewed our
decision as to the appropriate unit in th'e light of the contentions
'advanced by the respondent and the evidence in the representation
proceeding and -in the case now before us, andwe see no reason to
alter our previous determination.
We find, as did the Trial Examiner, that all the linemen, ground-
men, laborers, street-light cleaners, troublemen, electricians, elec-
tricians' helpers, operators, metermen,, cut-in men, meter helpers,
meter readers, appliance servicemen, the storeroom helper, mainte-
nance men, mechanics' helpers, inspectors, and 'car washers employed-
by the respondent in the Lynchburg, Virginia, District, excluding
surveyors, rodmen, and janitors, and sales, accounting, clerical, and
supervisory employees, at all times' material herein constituted, and
now constitute, a unit appropriate for the purposes of collective bar-
gaining with respect to rates of pay, wages, Hours of employment, and
other conditions of employment, and that the said unit insures to the
employees of the respondent- the full benefit of their right to ;self-
1 38 N. L R. B 630.
2In the representation case the Board rejected the respondent's contention that the ap-
propriate unit should not be'smaller than the Roanoke-Lynchburg Division. The two cities
are approximately 50 miles apart; only the Lynchburg employees have been organized for
the purposes of collective bargaining.
APPALACHIAN ELECTRIC POWER COMPANY 825,
organization and collective bargaining and otherwise effectuates the
policies of the Act.
2. Representation by the Union of a majority in the appropriate unit
At a, secret ballot, election conducted by the Board on February 27,
1942, pursuant to the Decision and Direction of Election mentioned
above, the Union was designated by a majority of the Lynchburg
employees in the appropriate unit as their representative for the
purposes-of collective bargaining. Accordingly, on March 14,_1942,
the Board certified the Union as the exclusive representative of the
respondent's employees in the appropriate unit.' The respondent
contends, however, that subsequent to the issuance of the Board's
certification\the Union lost its majority status. For the reasons here-
inafter stated in section 3, below, we find the respondent's claim to be
without merit. V '
Accordingly, We find that on March 14,1942, and at all times there-
after, the Union was, and now is, the duly designated representative
of a majority of the employees in the appropriate unit and that, pur-
suant to Section 9 (a) of the Act, the Union was, and now is, the
exclusive representative of the employees in the said 'unit for the pur-
poses of collective bargaining in respect to rates of pay, wages, hours
of employment, and other conditions of employment.
3. The refusal to bargain
As hereinabove indicated, upon a petition filed by the Union on
August 12, 1941, the Board issued, on January 28, 1942, its Decision
and Direction of Election in which, it found that the respondent's
employees in the Lynchburg District of the Roanoke-Lynchburg
Division constituted an appropriate unit, and directed an election; the
Union won)the election conducted on February 27, 1942, by one vote;
and no objections having been filed, the Board certified the Union on
March 14, 1942. _
'Under date of April 28; 1942, the Union mailed a proposed contract
to the respondent and requested that bargaining conferences be held
• during the week of May 11.-' Under date of May 4, the respondent
advised the Union that management could not negotiate during the
week of May 11, and suggested as a suitable date May 26, to which the
Union agreed. On May 12, the respondent granted a wage increase
8 39 N. L. R. B. 817.
* with 88 employees on the eligibility 1isf and 81 votes cast and counted , the Union received
41 votes ; 40 votes were cast against it.
The proposed contract omitted a schedule of wage rates pending negotiations.
826- DECISIONS_ :0'r- NATIONAL LABOR RELATIONS BOARD
to Roanoke employees." On May 13, the respondent, through its
foremen, orally advised the Lynchburg employees that the respondent
had departed from its practice of uniform wage treatment of Roanoke
and Lynchburg employees by granting the pay increase to Roanoke
employees and by withholding a pay increase fo'r Lynchburg
employees pending the' bargaining negotiations with the Union.7
During the week beginning May 18, A. V. Painter, a nonsuper-
visory employee, circulated among the employees in the appropriate
unit a letter which is referred to in the record as a petitions Painter,
a troubleman, spent most of the week of May 18 in and around the
Sixth Street shop in Lynchburg, out of which he worked, and in visit-
ing substations of the respondent in and near Lynchburg where other
employees worked, to secure their signatures to the petition. Most
of the signatures thus solicited were obtained either during Painter's
I Due to the rise in cost of living and to both actual and threatened drain of manpower
into Rear industries the respondent had been considering the matter of wage increases for
Roanoke and Lynchburg employees as far hack as the fall of 1941, but the matter did not
come to ahead until May 1942, after N. M Aigablite, the respondent's vice president in
charge of its labor relations, had returned from a vacation and when it had in its hands
a ieport with respect to the rise in cost of living in the Roanoke area for the 12-month period
ending March 1942 In a telegram dated May 12, 1942, Arga,brite ,wired W I Whitefield,
the respondent's assistant division manager at Roanoke, tollowing a conference between
them in Argabrite's New York office :
REFERENCE TO YOUR REQUEST FOR APPROVAL OF REiDJUSTMENT OF WAGES MAY FIRST
I
ACCOUNT OF YOUR EXHIBIT OF FURTHER. INCREASE COST OF CUING AT ROANOKE YOU MAY
PROCEED TO MAKE INCREASES SUGGESTED SO PAR AS CONCERNS ROANOKE DON' T BELIEVE
IT WOULD BE QUITE ETHICAL TO CONSIDER LYNCHBURG AT THIS TIME ACCOUNT OF MEPET-
'INGS SCHEDULED FOR MAY 28.
'1'ne classifications of employees at Roanoke who received the wage increase were comparable
to those in the appropriate unit at Lynchburg. Prior to May 12, 1942, the respondent's
policy was to treat Roanoke and Lynchburg employees uniformly with respect to wages
and, in accordance with that policy, division-wide pay increases had been granted on the
following dates : September 1, 1933; December 1, 1936; September 1, 1937 ; October 16,
1940 ; and July 16, 1941.
7In transmitting District Manager Jackson's instructions to the foremen, J. R. Martin,
the respondent s distribution superintendent at Lynchburg, told them in his words :
* * * Mr Jackson had informed me that the line department employees at Roanoke
had been given the increase effective the 1st of May, and that it had always been a
policy of the Company to treat both Roanoke and Lynchburg alike, meaning that when
Roanoke was given a raise Lynchburg was,usually given a raise, but in this case this
was not, being done, and the 'reason it was not being done was due to the fact that
there was a scheduled meeting with the i epresentatives of the labor union with refer-
ence to discussing a proposed agreement, and in view of that fact it was not considered
ethical at this time to consider the Lynchburg employees, and that we wanted them
to pass that information on to the men, because they would undoubtedly, we knew,
hear about it, and we did not want them to get it in a garbled form. We wanted them
to know the truth about it, and that was the ti uth.
8 The petition in full reads as follows : -
Mr. J. B JACKSON
MAY 18, 1942.
DEAR SIR: We fellow employees hold great esteem for you as our manager and have
appreciated eveiy adiantage that you have given us in the past And through careful
thinking we do not want to be governed or affiliated with any union. We the under-
signed acknowledge with our signatures [Signatuies omitted ]
Painter, a former member of the Union, testified that he prepared the petition at home
and circulated it on his own initiative because of a personal hostility toward labor
organizations.
,1
APPALACHIAN ELECTRIC POWER COMPANY 827
working hours or those of other employees. In circulating the peti-
tion, Painter discussed with some employees the pay increase given
to Roanoke employees and suggested that an increase for Lynchburg
employees might be obtained by signing the petition. Supervisors,
knew of the circulation of the petition on company time and property,
but took no steps to stop such conduct. " On- May 18, Martin learned
of Painter's activity and informed Jackson that "a petition to do away
with the Union" was being circulated among the employees. Some-
time during the week of May 18, Robert Reynolds, the respondent's
general line foreman at Lynchburg, and Superintendent Martin's as-
sistant, questioned, Painter as to what progress he was,making in get-
ting signatures to the petition and copied the names of those who had
signed. Painter was not docked in pay for the time spent in such ac-
tivity. On May 2'5, Painter delivered the 'petition, containing. the
.signatures of 66 employees,9 to District Manager Jackson. Each
supervisor was polled to,ascertain whether he had participated in the
preparation or circulation of the petition, and the respondent found
that none of them had any active connection with it. The next day,
when union representatives appeared for the bargaining negotiations,
the respondent acquainted them with, the contents of the petition and
stated that it wished to consult with the Board's Regional Director with
respect to the respondent's obligation to bargain. Subsequently, after
conferences with the Regional Director,10 the respondent stated in
substance that it would not bargain with the Union in view of the
petition ; and the Union filed the charges which gave rise to the in-
stant proceeding.11
The respondent does not deny that it has, refused to bargain with the
Union -but contends that it was justified in such refusal by virtue of
the Union's loss of its majority status; it claims that by means of the
petition the employees repudiated the Union and revoked its author-
ity to act as their collective bargaining representative and that, there-
fore, the Union was not the exclusive representative of the employees
on and after May 26, 1942, when the Union appeared to conduct bar-
gaining negotiations on their behalf and requested such recognition.12
This constituted a majority of the respondent ' s employees in the unit hereinabove found
to be appropriate for the purposes of collective bargaining
10 The respondent offered to grant a wage increase to the Lynchburg employees , similar
in all respects to that given the Roanoke employees , provided such action would not be
considered an unfair labor practice ; the Union refused to agree to the proposal unless such
wage increase was credited to the Union and provided that the respondent bargain with
the Union . No agreement was reached . Subsequently , in July 1942 , the respondent
granted Lynchburg employees a wage increase winch was made, retroactive to conform
to that given the Roanoke employees in May 1942.
11 Prior to the filing of the charges, the respondent had stated that it contemplated filing
with the Board a petition to set aside the certification , or for other appropriate relief; no
such application was made
12 For the , purposes of our decision , we assume , without deciding , that the language of
the so-called petition sufficiently evinces a desire on the part of the employees to revoke
the Union 's authority to act as their representative
N
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I
We reject the respondent's contention. The Congress has conferred
on the Board exclusive jurisdiction to determine disputes as to, repre-
sentation affecting commerce and gave it machinery by way of secret
ballot election for making such determination. The Board alone may
certify the representative designated by the employees as their bar-
gaining agent. So long as the certification remains in full force and
effect, the representative certified by the Board must be recognized.
Generally, the employer must accord to a certified representative rec-
ognition as the proper bargaining agent for a reasonable period of
time after issuance of the certification, or until'the certification is set
aside or replaced by appropriate action of the Board .1-3 The fruition
of collective bargaining in an agreement often requires negotiations.
lasting several months. It is therefore essential to ,the effectuation
of the policies, of the Act that the representative status, once estab-
lished, be vested with a substantial degree of stability. Here, pur
suant to a secret ballot of the employees, the Union's authority as
exclusive bargaining representative was established in an election con-
ducted under the supervision and direction of the Board. The fairness
of the election is not questioned. Not more than 21/2 months had
elapsed after the issuance of the certification when the respondent
challenged the Union's authority to act as the exclusive representative
of the employees. Clearly the certification was then in full force and
effect. The signing of a petition, under the circumstances disclosed
here, cannot operate to alter the Union's status established in a secret
election conducted by the Board. To hold otherwise would upset
orderly procedure, destroy the value of the Board's election machinery,
and 'seriously impair the stability of collective bargaining negotia-
tions.14
13 Indeed , it has been the practice of the Board in the normal representation case to
refuse to explore alleged changes of sentiment within a year of certification even when,
advanced by employee representatives . See, for example , Matter . of Monarch Aluminum
Mfg. Company and International Union of Mine, Mill & Smelter Workers ( C. 1. 0.), 41
N. L. R. B 1. Clearly such a limitation should be applied equally to an employer. In.
conformity with such practice and in view of-our finding hereinafter that the respondent
was responsible for defections in the ranks of the Union, we disregard testimony given
at the hearing by employees that they no longer desired to bedrepresented by the Union.
14N. L. R. B. v Botany Worsted Mills , et al, (C. C. A. 3), decided-January 18, 1943,
11 L. R. R. 684, enf 'g as mod . 41 N. L. R. B. 218. The Court there, in upholding the
Board's order directing an employer to bargain with a certified union notwithstanding, a
majority of the employees in the appropriate unit had repudiated it 1 week after the
election , stated :
Botany here contends that the rights of the employees under the Act entitle them
to choose their bargaining agent, but like any other agent the authority may be
terminated at the wish of the principal.
The argument , while containing some elements of plausibility , would, if accepted,
make chaos out of the administration of the statute and prevent the protection of
the very rights which it aimed to secure . * * * The Board has within its author-
ity power to ascertain the will of the majority of a given group of employees by
election or other means . The election method is chosen, we take it, because secret
ballot is regarded as the most effective way of getting an untrammeled expression of
APPALACHIAN ELECTRIC POWER COMPANY -829
Apart from any consideration of the binding force of the certifica-
tion as set forth above, we are of the opinion that the respondent is in
no position to escape collective bargaining by taking refuge in the
alleged revocation,of the Union's majority status. Prior to May 1942,
the respondent had customarily treated Roanoke and Lynchburg
employees alike with ' respect to wages. Faced with competition of
war industries for manpower, the respondent had been considering
the payment of higher wages in both the Roanoke and Lynchburg
districts as a means of bolstering employee morale as early as the fall
of 1941.. Despite actual and threatened loss of employees, the respond-
ent delayed coping with its personnel problem'until late in the spring
of 1942. About May 12, 1942, having arranged a union bargaining
conference scheduled not more than 2 weeks hence, it acted. Instead
of treating with the Union as the proper representative of the Lynch-
burg employees as to wage rates, a matter vitally affecting the morale
of its employees, the respondent unilaterally departed from its estab-'
lished practice of uniform wage treatment for employees in both dis-
tricts by granting a pay increase to Roanoke employees and with-
holding a pay increase from Lynchburg employees. Admittedly, if
the Board had not certified the Union, the respondent would have
granted at the same time a pay increase to Lynchburg employees as
well as to those employed in Roanoke.
In addition to such disparate treatment, by direct oral communica-
tions to the Lynchburg employees, thus again ignoring the Union, the
respondent emphasized the fact that a pay increase, which would have
been normally then granted to them, was being withheld "pending
negotiations with the Union." By such action the respondent made
clear that its departure-from established wage policy involved discrim-
ination ' against' organized workers which favored unorganized em-
ployees, otherwise similarly situated, and that discontinuance of such
discrimination was dependent upon the uncertainties of the collective
bargaining negotiations scheduled to follow. The employees discrim-
inated against reacted promptly; within less than a week thereafter, a
movement began to disaffiliate from the Union. Plainly, in signing
the disaffiliation petition the employees were influenced by the forces
thus generated by the respondent to follow a course designed to obtain
for themselves a wage increase.
the desire of'the electorate . Surely it is not to be defeated of all its effectiveness
by a communication, undisclosed to the Board, repudiating, immediately after the
election was held, the ballot count. The employees in this case, if they wished to
change their minds concerniiig a bargaining-agent, could have asked the Board for
another election. If the Board had arbitrarily refused it within a reasonable time
then we might have a case where a question could be raised whether it
-
had done its
duty under the statute. But those are not the facts of his case. -We conclude that
there is no' merit in Botany's contention that the Board erred in its order that the
employer must bargain with the certified bargaining agent.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Moreover, the circulation on company time and property with the
knowledge and acquiescence of responsible company officials of a peti-
tion addressed to management did not, in our opinion, evoke from the
employees, sensitive as they are to avoid the displeasure of their em-
ployer, a free expression of their choice. Accordingly, we find that by
departing from its established practice of uniform wage treatment for
Roanoke,,and Lynchburg employees, by announcing such departure to
the Lynchburg employees as described above, and by permitting, en-
couraging, and assisting in the circulation of the petition on company
time and property, the respondent discouraged its employees from
engaging in collective bargaining thr"ough a representative theretofore
duly designated by them, and thereby interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed in Sec-
tion 7 of the Act. The defections from-the.ranks of the Union were
-the direct result of the respondent's interference, restraint, and coer-
cion.. We do not, therefore,(recognize the validity of the defections.
To do so would be to permit the respondent to evade its duty to bar-
gain with the Union because of the dissipation of its majority resulting
from other of the respondent's unfair labor practices.15
We find, as did the Trial Examiner, that on May 26, 1942, and at all
Mimes thereafter, the respondent refused to bargain collectively with
the Union as the exclusive'representative of its employees in an appro
priate unit with respect to rates of pay, wages, hours of employment,
and other conditions of employment,- and by such refusal interfered
with, restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above,
occurring in connection with the operations of the respondent described
in Section I, above, have.a close, intimate, and substantial relation to
trade, traffic', and' commerce among the several States and tend to lead
to labor disputes-burdening and obstructing commerce and the free
flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in unfair labor prac-
tices, we shall order it to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of the Act. We
have found that the respondent has refused to bargain collectively with
the Union as the representative of the majority of the employees in an
1 5 See, for example , National Labor Relations Board v. Biadford Dyeing Assn , 310 U. S.
318, 340; Oughton v. National Labor Relations Board, 118 F. (2d) 486 (C. C. A. 3),
cert denied , 315 U. S. 797. 1
APPALACHIAN-SLECT,ZIC POWER COMPANY 831
appropriate unit. We shall direct, therefore, that- the respondent,
upon request, bargain collectively with the Union. - '
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. Local Union B-1182 of the International Brotherhood of Elec-
trical -Workers, affiliated with the American ` Federation of Labor,
,is a labor organization, Within the meaning of Section 2- (5) of the
Act.
2. All' linemen, groundmen, laborers, street-light cleaners, trouble-
men, electricians, electricians' helpers, operators, metermen, cut-in
Men, meter helpers, meter readers, appliance servicemen, the store-
-room helper, maintenance men, mechanics' helpers, inspectors, and
car washers employed by the respondent in the Lynchburg District,
excluding surveyors, rodnien, and janitors, and sales, accounting, cleri-
cal, and supervisory employees, constitute, and at all times material,
herein constituted, a unit appropriate for the purposes of collective
bargaining, within the meaning of Section 9 (b) of the Act.
3. Local Union B-1182 of the International Brotherhood of Elec-
trical Workers, affiliated with the American Federation of Labor, was
on March 14, 1942, and at all times thereafter has been, the 'exclusive
representative of all employees in said unit for the purposes of col-
lective bargaining, within the meaning of Section 9 (a) of the Act.
4. By refusing on May,26, 1942, and at all times thereafter, to bar-
gain collectively with Local Union B-1182 of the International
Brotherhood of Electrical Workers, affiliated with the American Fed-
eration of Labor, as the exclusive representative of its employees in
the appropriate unit, the respondent has engaged in and is engaging
in unfair labor practices, within the meaning of Section 8 (5) of the
Act.
5. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the-meaning of-Section 8 (1) of'the Act. -
6. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act. I
ORDER
Upon the basis of the foregoing findings of fact and conclusions
of law, and pursuant to Section 10 (c) of the National Labor Rela-
tions Act, the National Labor Relations Board hereby orders that the
832 1 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,respondent, Appalachian Electric Power Company; its officers, agents,
'successors, and assigns, shall:
1. Cease and desist from :
(a)-Refusing to bargain collectively with Local B-1182 of the In-
ternational Brotherhood of Electrical Workers, affiliated with the
'American Federation of Labor, as the exclusive representative of all
linemen, groundmen, laborers, street-light cleaners, troublemen, elec-
tricians, electricians' helpers, operators, metermen, cut-in men, meter
helpers, meter readers, appliance servicemen, the storeroom helper,
maintenance men, mechanics' helpers, inspectors, and car washers em-
ployed by the respondent in the Lynchburg District, excluding sur-
veyors, rodmen, and janitors,. and sales, accounting, clerical, and super-
visory employees ;
(b) Discouraging membership in Local B-1182 of the Interna-
tional Brotherhood of Electrical Workers, affiliated with the Ameri-
can Federation of Labor, or ' any other labor organization of „its
employees, by in any manner discriminating in regard to their hire
or tenure of employment or any term or condition of their employ-
ment;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, joint, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purposes of collective bargaining or other
mutual aid or protection, as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act: '
(a) Upon' request, bargain 'collectively with Local B-1182 of the
International Brotherhood of Electrical Workers, affiliated with the
American Federation of Labor, as,the exclusive representative 6f all
linemen, groundmen, laborers, street-light cleaners, troublemen, elec-
tricians, electricians' helpers, operators, metermen, cut-in men, meter
helpers, meter readers, appliance servicemen, the storeroom helper,
maintenance men, mechanics' helpers, inspectors, and car washers, em-
ployed by the respondent in the Lynchburg District, excluding sur-
veyors, rodmen, and janitors, and sales, accounting, clerical, and
supervisory employees, in respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment;
(b) Post immediately in conspicuous places in the Sixth Street
shop at Lynchburg, Virginia, and at each of the respondent's Lynch-
burg District substations, and maintain fora period of at least sixty
(60) consecutive.days from the date of posting, notices to its employees
stating : (1) that the respondent will not engage in the conduct from
^vhich it is ordered to cease and desist in paragraphs 1 (a), (b), and.
APPALACHIAN ELECTRIC POWER COMPANY 833'
(c) of this Order; and (2) that the respondent will take the affirma
tive-action set forth in paragraph 2 (a) of this Order; I .
(c)' Notify the Regional Director for the Fifth Region in writing
within =ten (10) days from the date' of this Older what steps, the
respondent has taken- to comply herewith. - --
Mn. GERARD D. REILI Y, concurring specially : .
I am unable to agree with the finding that respondent by granting a
wage increase to employees at Roanoke, while withholding a similar
increase from employees at Lynchburg, committed an unfair labor
practice. In the prior representation proceeding before the Board,
the respondent contended that because it had always accorded uniform
wage treatment to employees at Lynchburg and Roanoke, the em-
ployees at Lynchburg alone did not constitute an appropriate unit for
collective bargaining. But the Board's decision overruled this con-
tention and found that the employees at Lynchburg constituted a sepa-
rate unit. The Board thereupon certified the Union as exclusive
representative of the Lynchburg employees. Thus, the respondent
was no longer justified in handling problems concerning terms and
conditions of employment alike in both plants, since the Lynchburg
employees had chosen a representative for collective bargaining,
whereas those at Roanoke had not. The respondent was therefore
free to take unilateral action with respect to the wages of the Roanoke
employees whenever economic conditions so required. It was not free
to take unilateral action, however, with respect to the Lynchburg
employees; indeed, had it done so, this Board might well have found
that respondent was thereby attempting to undermine the prestige of
the bargaining agent which the employees had selected."' Respondent,
in, my opinion, quite, properly delayed treatment of the wage problem
with respect to the Lynchburg employees for consideration at the bar-
gaining conferences with the Union, which had been scheduled' for
later in the month.
While I cannot agree that the alleged defections from the Union are
traceable to any improper conduct by the respondent, I concur in the
finding that the respondent was not justified in disregarding the
Board's certification and refusing to bargain with the certified repre-
sentative merely because it had been presented with a petition whereby
the employees allegedly revoked their authorization of the Union as
collective bargaining agent."' The unreliability of such petitions as
11 Cf, for example, Matter of Schmidt Baking Co , Inc. and Local 622, Bakery Drivers
and Salesmen, A F L, 27 N L R. B. 864, and cases cited the^ein
" National Labor Relations Board v. Botany Worsted Mills, decided January 18, 1943
(C C A. 3), 11 L R R. 684 ; Matter of The Century Oxford Mfg. Corp and Wholesale
& Warehouse Workers Union, Local 65, C. 1. 0 , 47 N. L B B., No 103, issued this day.
513024-43-vol 47--53
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence'of employees' desires concerning representatives for collective
bargaining is illustrated by the fact that here the petition was circu-
lated in the respondent's plant under the eyes of its foremen and super-
visors. Shifts of allegiance following certifications present -difficult
problems to this Board but employers cannot.take it upon themselves
to disregard certifications which remain in full force and effect and
which the Board has taken no steps to reconsider.