Cullman Electric Cooperative

National Labor Relations Board - Board Decisions

Jun 17, 1952

99 N.L.R.B. 753 (N.L.R.B. 1952)

CULLMAN ELECTRIC COOPERATIVE 753
'CULLMAN ELECTRIC COOPERATIVE and LOCAL UNION 558 , INTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL. Case, No.
10=CA -1115. June 1 7, 1959
Decision and Order
On November 14, 1951, Trial Examiner Isadore Greenberg issued
his Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices in violation of Section 8 (a) (1) and (3) of the National
Labor Relations Act, and recommending that the Respondent cease
and desist therefrom and take certain affirmative action, as set forth
in the copy of the Intermediate Report attached hereto. The Trial
ll miner also found that the Respondent had not violated the Act
with respect to Lawson Taylor and consequently recommended dis-
missal of the complaint as to him. Thereafter, both the Respondent
and the General Counsel filed exceptions to the Intermediate Report,
and also supporting briefs.
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, the briefs, and the entire record in
this ease, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the additions set forth below.
1. The Respondent contests the Board's jurisdiction, contending
that its activities do not affect commerce within the meaning of the
Act. In agreement with the Trial Examiner, we find that the Respond-
ent is engaged in commerce within the meaning of the Act, and that it
would effectuate the policies of the Act to assert jurisdiction in this
case.1
2. The Trial Examiner found, and we agree, that the Respondent
interfered with, restrained, and coerced its employees in violation of
Section 8 (a) (1) of the Act. In reaching this conclusion, we rely on
the following conduct : (1) Superintendent Johnson's interrogation of
employee Estes as to whether the latter had signed a union application
card, how many other employees had signed such cards, and who had
attended the meetings of the Union; (2) Superintendent Johnson's
interrogation of employee Nunnelly as to Nunnelly's attitude toward
the Union; (3) Manager Wood's warning while making an antiunion
speech that the Respondent had the power to discharge any employee
"for the way he parted his hair"-a thinly veiled threat that any
employee who supported the Union might be discharged on any con-
venient pretext; (4) conducting a private poll among the employees by
1 Black River Electric Cooperative, 98 NLRB 539.
99 NLRB No. 97.
754 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instructing the employees who wished to repudiate the Union to rise
and those who wished to be represented by the Union to remain seated ;
(5) Superintendent Johnson's statement to employee Taylor imme-
diately following the Board election that Taylor might as well start
looking for another job, which statement was made immediately after
Johnson's unsuccessful attempt to induce Taylor to renounce his union
activities; (6) Manager Wood's surveillance at the scene of the Union's
scheduled meeting of August 28, 1950; 2 (7) prohibiting employees
during nonworking time from inquiring of a union representative as
the outcome of his meeting with Manager Wood concerning union
recognition; 3 and (8) promulgating and enforcing its rule against
discussion of unionism during working hours for the discriminatory
purpose of impeding the Union' s organizing efforts.4
3. In view of the Trial Examiner's credibility resolutions, which we
see no reason to disturb, we find that Respondent did not discharge
Lawson Taylor in violation of Section 8 (a) (3) of the Act.
4. For the reasons fully detailed in the Intermediate Report, we
find, in agreement with the Trial Examiner, that the Respondent dis-
charged Elbert O. Estes in violation of Section 8 (a) (3) and (1)
of the Act.
Order
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Cullman Electric
Cooperative, Cullman, Alabama, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Discouraging membership in Local Union 558, International
Brotherhood of Electrical Workers, AFL, or any other labor organi-
zation of its employees, by discriminatorily discharging any of them
or by discriminating in any other manner in regard to their hire or
tenure of employment, or any term or condition of employment because
of their union membership, activity, or adherence.
(b) Interrogating its employees concerning their union activities
or views; threatening its employees with economic reprisal for sup-
porting the Union; polling its employees as to whether or not they wish
to be represented by a union; engaging in surveillance of union meet-
2 Although 'se agree with the Trial Examiner's finding that Wood's attendance at the
first union meeting did not constitute surveillance , we do so on the basis of the undisputed
evidence that Wood was invited by several employees to attend the meeting and was per-
mitted to remain in attendance without objection , and not for the additional reason given
by the Trial Examiner that the meeting was devoted only to a general discussion of the
history and rights of labor by the Union 's attorneys.
31. F. Sales Company, 82 NLRB 137.
4 Standard-Coosa -Thatcher Company, 85 NLRB 1358 ; Cherry Rivet Company, 97 NLRB
1303.
CULLMAN ELECTRIC COOPERATIVE 755
ings, and in any other manner interfering with, restraining, or
coercing its employees in the exercise of the rights to self-organization,
to form labor organizations, to join or assist Local Union 558, Inter-
national Brotherhood of Electrical Workers, AFL, or any other labor
organization, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or 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 Elbert O. Estes immediate and full reinstatement to his
former or a substantially equivalent position without prejudice to
his seniority or other rights and privileges.
(b) Make whole said Elbert O. Estes in the manner set forth in the
section of the Intermediate Report entitled "The Remedy" for any
loss of pay he may have suffered by reason of Respondent's discrimi-
nation against him.
(c). Upon request, make available to the Board or its agents, for
examination and'copying, all payroll records, social security payment
records, time cards, personnel records and reports, and all other records
necessary to analyze the amounts of back pay and the right of rein-
statement under the terms recommended in this order.
(d) Post immediately at its place of business at Cullman, Alabama,
copies of the notice attached hereto, marked "Appendix A." s Copies
of said notice, to be furnished by the Regional Director for the Tenth
Region, shall after being duly signed by the Respondent's representa-
tive, be posted by the Respondent immediately upon receipt thereof,
and maintained by it for sixty (60) days thereafter in conspicuous
places, including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other
material.
(e) Notify the Regional Director for the Tenth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent discrimnlatorily discharged Lawson Taylor in viola-
tion of Section 8 (a) (3) of the Act, be, and it hereby is, dismissed.
$ In the event that this Ouler is enforced by a decree of the United States Court of
Appeals. there shall he substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a 1) erne of the United States Court of Appeals. Enforcing an Oider "
756 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 discourage membership in LOCAL UNION 55S,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, or
in any other labor organization of our employees, by discharging
any of our employees or in any other manner discriminating
against them in regard to their hire and tenure of employment or
any term or condition of employment.
WE WILL NOT interrogate our employees concerning their mem-
bership in or adherence to LOCAL UNION 558, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL, or any other labor
organization, or threaten reprisals for such membership or
adherence.
WE WILL NOT keep any union meetings of our employees, or any
of their other concerted activities, under surveillance.
WE WILL NOT conduct any polls or elections among our em-
ployees on the question of whether or not they wish to be repre-
sented in collective bargaining by a union. ,
WE WILL NOT promulgate or enforce any rules prohibiting our
employees from engaging in discussions of unions on our premises
or during working hours, except insofar as such rules may be
reasonably necessary to avoid disruptions of our operations.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist LOCAL UNION 558,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, or
any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or -to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment 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 ELBERT O. ESTES immediate and full rein-
statement to his former or a substantially equivalent position,
without prejudice to any seniority or other rights and privileges
previously enjoyed, and make him whole for any loss of pay
suffered as a result of the discrimination.
All our employees are free to become or remain or refrain from
becoming members of the above-named union or any other labor
CULLMAN ELECTRIC COOPERATIVE 757
organization except to the extent that this right maybe affected by an
agreement in conformity with,Section 8 (a),, (3) of the, amended Act.
We will not discriminate in regard to hire or tenure of employment
or any term or condition of employment against any employee because
of membership in or activity on behalf of any such labor organization.
CULLMAN ELECTRIC COOPERATIVE,
Employer.
Dated ------------ By -----------------------------------
(Representative ) (Title)
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
STATEMENT OF THE CASE
Upon a charge and amended charge duly filed by Local Union 558, Interna-
tional Brotherhood of Electrical Workers, herein called the Union, the General
Counsel of the National Labor Relations Board,' by the Regional Director for
the Tenth Region (Atlanta, Georgia), issued a complaint on June 14, 1951, against
Cullman Electric Cooperative, herein called the Respondent, alleging that the
Respondent had engaged in and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (a) (1) and (3) and Section 2 (6)
and (7) of the Labor Management Relations Act, 1947 (Public Law 101, 80th
Congress; 61 Stat. 136), herein called the Act. Copies of the charge, amended
charge, the complaint, and notice of hearing thereon were duly served upon
the Respondent and the Union.
With respect to unfair labor practices the compaint, as amended at the hear-
ing, alleges in substance that the Respondent on specified dates during June
and August 1950, interrogated its employees concerning their union activities
and affiliations, threatened to discharge employees if they joined or assisted
the Union, and engaged in surveillance of the organizational activities of its
employees. It further alleges that on September 6, 1950, the Respondent dis-
charged employees E. 0. Estes and L. A. Taylor because of their membership in
and activities on behalf of the Union, and has thereafter refused to reinstate
them.
In its answer, duly filed, the Respondent denies that it is engaged in business
activities which affect commerce within the meaning of the Act, and denies the
commission of any unfair labor practices.
Pursuant to notice, a hearing was held at Cullman, Alabama, on July 17 and
18, 1951, before the undersigned Trial Examiner, duly designated by the Chief
Trial Examiner of the Board. The General Counsel, the Respondent, and the
Union were represented by counsel ; the Union also by a lay representative.
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 a motion by the General Counsel to conform the pleadings to
the proof with respect to such formal matters as the spelling of names, dates, and
the like, was granted without objection. Before the close of the hearing counsel
for all the parties were heard in oral argument. Opportunity was afforded all
parties to file with the Trial Examiner, briefs and/or proposed findings of fact,
' The General Counsel and his representative at the hearing are herein referred to as
the General Counsel ; the National Labor Relations Board as the Board.
215233-53-49
758 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and conclusions of law. A brief was received from counsel for the Respondent.
In its brief, Respondent moves for a dismissal of the complaint. This motion is
disposed of by the findings, conclusions, and recommendations hereinafter made.
Upon the entire record in the case, and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE RESPONDENT 'S BUSINESS
The Respondent, Cullman Electric Cooperative, is a nonprofit electric coopqra-
tive, existing by virtue of and under chapter 3, title 18, Code of Alabama of
1940, having its principal office and place of business at Cullman, Alabama,
where it is engaged in the business of buying, selling, and distributing electric
service for its approximately 10,000 customer-members in Cullman, Winston,
Lawrence, and Morgan Counties in the State of Alabama. It is financed by loans
from the Rural Electrification Administration.
During the calendar year 1950, in the course and conduct of its business, the
Respondent purchased materials and supplies consisting principally of electricity,
wire, transformers, glass, poles, and meters, of a total value of approximately
$193,000, of which approximately $22,000 represents the value of purchases made
outside the State of Alabama During the same period, the Respondent sold more
than 17,400,000 kilowatt hours of electricity to its consumer-members, valued at
in excess of $460,000 all of which sales were made within the State of Alabama.
The Respondent is not required to sell its electricity nor to extend its other
services to consumers it does not wish to serve, and its sales are made almost
exclusively to members of the cooperative, for whom it is the sole source of
electric power. About 94 percent of the Respondent's members is farmers ;
about 85 percent of the electric power sold by the Respondent is sold to such
rural members. Among the Respondent's other customers are a number of
industrial establishments, such as sawmills, cotton gins, and the like, and at
least one municipality, which purchases electricity for use by some of its
municipal departments. The record does not reveal what proportion of the
Respondent's sales are made to such customers, nor does it describe the extent or
nature of the latter's business operations.
The Respondent contends that the Board does not have jurisdiction over this
matter because: (1) There is no showing that the Respondent's business opera-
tions substantially affect interstate commerce; and (2) the Respondent is not a
"public utility" in the sense of being obligated to make its services available
to any member of the public demanding such services. It argues further that
the Respondent purchases its electric power from TVA, a Government-owned
enterprise, instead of from a public utility company, and consequently, is not
even "connected with any public utility."
Although in an earlier case cited by the Respondent, the Board, by a divided
decision, held that it would not effectuate the policies of the Act to assert juris-
diction over a nonprofit rural electric cooperative similar to the Respondent
(Platte-Clay Electric Cooperative, Inc., 83 NLRB 863), it has more recently ad-
hered to the policy of taking jurisdiction over such enterprises, which, in the
view of the Board, should "be treated as a public utility" for purposes of decid-
ing jurisdictional issues Cherokee County Rural Electric Cooperative Associa-
tion, 92 NLRB 1181; Buckeye Rural Electric Cooperative, Inc., 88 NLRB 196;
Wheatland Electric Cooperative, Inc., 94 NLRB 109; Appalachian Electric Co-
operative, 93 NLRB 1278.2
2 The cooperative involved in the Appalachian case, cited above, purchased its, electricity
from TVA.
CULLMAN ELECTRIC COOPERATIVE' - • • 759
I conclude and find that the Respondent is engaged - in commerce within the
meaning of the Act, and that it falls within the class of enterprises over which
the Board, as a matter of policy, asserts its jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
Local Union 558, International Brotherhood of Electrical Workers, affiliated
with the American Federation of Labor, is a labor organization admitting em-
ployees of the Respondent to membership.
III. TIDE UNFAIR LABOR PRACTICES
A. Sequence of events'
During or prior to May 1950, information reached the Respondent that the
employees of some electrical cooperatives in northern Alabama had organized-
into unions, and that collective bargaining agreements had been negotiated
between the said unions and employers. Sometime thereafter, during the month
of May, Manager Claude Wood called the Respondent's employees to a meeting
on the Respondent's premises and addressed them on the subject of union organi-
zation Wood told the emplo} ees that there had been some union activity among
the employees of other electrical cooperatives in Alabama, and that efforts might
be made to organize the Respondent's employees. He expressed the view that
no union was needed by the Respondent's employees, and the hope that they
would not attempt to bring one in. After pointing out the disadvantages of
unions, Wood announced it rule prohibiting the discussion of union matters by
the emplo} ees during working hours, under penalty of discharge.'
Shortly before the aforesaid meeting, during May 1950, employee Lawson
Taylor bad requested the American Federation of Labor'to help him organize
the Respondent's employees. The matter was referred, to Business Manager
Charles S. Goidel of the Union, as a result of which Goidel met during 'the
month of June with some of the Respondent's employees, including Taylor and
Elbert O. Estes, for a preliminary discussion.
In the latter part of June, a larger group of the Respondent's employees met
at or near a picnic ground in Cullman, where some of them signed union appli '
cation cards, and arrangements were made for another meeting at which addi
tional employees were to be present. At the next meeting,' held shortly after-
wards at the same site, those present decided that they had enlisted a majority
of the Respondent's employees in the Union, and that Goidel, as their repre-
sentative, should call on the Respondent to request recognition of the Union.
Pursuant to the aforesaid decision, Goidel visited Manager Claude Wood at the
latter's office on or about Monday, June 26, 1950, informed him that the Union
represented a majority of the employees, offered to submit signed application
cards to prove this claim, and requested that the Respondent recognize the Union
as collective bargaining representative of the employees. Wood declined to ex-
amine the cards and replied that he had no authority to grant the Union's
request, but said that he would take the matter up with the Respondent's board
of directors and would notify Goidel as to the Board's decision.'
7 Unless otherwise indicated, the findings of fact made herein are based upon undisputed
evidence.
+ Based on the composite testimony of Lawson Taylor, Manager Wood; E. O. Estes, R M:
Vei3t, Odie Q Johnson, and Doyle Wilhite, and a reconciliation thereof. • '
5 Both of the meetings held at the picnic ground were advertised by employee Lawson
Taylor by posting a notice on the bulletin board of the Respondent 's warehouse.
U Based on the testimony of Goidel and Wood, which is in substantial agreement as to
what occurred on the above-described occasion.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the afternoon of the same day, Goidel returned to a point near the Re-
spondent's premises, parked his car nearby, and waited for the employees to
return from their work in the field, in order to notify them of the result of his
meeting with Wood. At approximately 4: 30 that afternoon some of the Re-
spondent's trucks began to come into the Respondent's yard carrying employees
returning from their work.' A number of these employees carne to Goidel to
ask him what had occurred during his visit to Wood. When Goidel began
to tell the employees about his conversation with Wood, the latter approached
the group and ordered the employees to return to the Respondent's premises,
remarking that he could discharge everyone of them for talking to Goidel during
working hours!
On the day during which the above-described incident occurred, or the day
following, Superintendent of Operations James W. Johnson asked employee
Estes how many of the Respondent's employees had signed union application
.cards. When Estes refused to give him this information, Johnson asked, "Well,
you signed, didn't you?" Estes answered, "Yes, sir, I signed one and I don't
.care if you know it." Johnson then persisted, saying, "Well, I want to know
-how many signed." Estes still refused to answer that question, whereupon
.Johnson asked Estes why he wished to affiliate with the Union! At about the
same time, Superintendent Johnson also interrogated employee Willie Roy Nun-
nelly about the Union while they were at work, asking what Nunnelly thought
about the Union. Nunnelly called Johnson's attention to the rule against dis-
cussing the Union during working hours and declined to answer his question 10
About a day or two after June 26, the Respondent's employees were assembled
at a meeting in the director's room of the Respondent's offices and were ad-
dressed on the subject of the Union's organizational campaign by Manager
Wood and Superintendent of Operations Johnson. Both Wood and Johnson
urged the employees to refrain from supporting the Union, and compared the
Respondent's working conditions with those prevailing under union agreements,
to the disadvantage of the latter. Johnson also rebuked the employees for hav-
ing become connected with the Union without letting him "know anything."
Wood told the employees that they were permitting Goidel to "slick-tongue"
them into "something [they] didn't know what [they were] getting into," and
urged them to forget the Union. He warned the employees further that if any
of them were caught talking about the Union on the job, they would be dis-
T According to Wood's testimony, It Is the practice for the field employees to begin return-
ing to the warehouse at about 4 or 4: 30 p. m., and to wait around for quitting time, which
is at 5 p. m. Sometimes, according to Wood, there Is work around the warehouse for the
employees to do until quitting time.
8 Based on the testimony of Goidel, Taylor, and Estes, which I credit. Goidel testified
that Wood "proceeded to cuss out" the employees, saying that they were "not off duty,"
and he could "fire every damn one of them for talking to" Goidel. Taylor and Estes testi-
fied that Wood remarked that he could fire the employees for talking to that "black-headed
s-of-a-b-." Wood denied he so referred to Goidel and even denied that Taylor and
Estes were present ; he further testified that he had simply ordered the men to "get your-
self back to work," and had said that "we are not going to have any talking about labor
union while on working hours." Another witness, Nunnelly, who testified that he did not
hear all that was said on the occasion in question, stated that he only heard Wood order
the men back to work until their working hours were over.
0 Based on the undenied, credited testimony of Estes. Johnson admitted that during
the same conversation with Estes he had "probably" asked him who attended the meetings
of the Union, and that he was "quite sure" he had reported to Manager Wood on his
talk with Estes. I so find.
10 Based on the undenied, credited testimony of Nunnelly. The latter testified that this
conversation took place about 3 or 4 weeks before August 25, 1950, when he left the
Respondent's employ.
CULLMAN ELECTRIC COOPERATIVE ,, 761
charged , and remarked that any employee could be discharged "for the way
[he parted his] hair."" ;
On or about Friday, June 30, 1950, Manager Wood held another meeting of the
employees on the Respondent's premises. He told them in substance that,the
Union had demanded recognition, claiming to represent a majority of the em-
ployees; that many of the employees had since informed him that they wished
to withdraw from the Union ; and that he was desirous of ascertaining the wishes
of the employees with respect to this matter before the employees left for their
vacations, which were scheduled to commence the following week. Wood
directed those employees who wished to repudiate the Union to rise, and the
others to remain seated. All the employees except three (Taylor, Estes and one
other) arose. Thereupon Wood announced that apparently the employees did
not desire to be represented by the Union and he would not have union repre-
sentative Goidel appear at a meeting of the Respondent's board of directors 12
About a half-hour after this vote was taken, Wood told employee Taylor, "you
might as well forget about the Union because it isn 't coming in." 18
During the month of August 1950, the Union scheduled two meetings for the
Respondent's employees, which were to be held in the county courthouse in Cull-
man. The second of these meetings was advertised to take place on the evening
of Monday, August 28; the first about 2 or 3 weeks before that date. The first
meeting at the courthouse was attended by approximately 15-20 employees, and
was addressed by the Union's attorneys on the general subject of organized labor
and the functioning of the National Labor Relations Act. Manager Wood at=
tended this meeting, leaving after the attorney's finished their talks. According
to Wood's uncontradicted testimony, which I credit, he had been invited by sev-
eral of the Respondent's employees to attend the meeting, and he did so without
any objection to his presence being expressed by anyone.
The second union meeting, which, like the first, was advertised by a notice
posted on the Respondent's bulletin board, did not actually take place, since only
employees Taylor and Estes, in addition to Union Representative Goidel, appeared
et the meeting place. While these three were standing in front of the courthouse
"Based on the composite testimony of Taylor , Estes, W. It. Nunnelly, Manager Wood,
R. M. Vest, J. W. Johnson , O. Q. Johnson , and Doyle Wilhite. I have based the above
findings on a reconciliation of all their testimony . Taylor at one point testified that Wood
had told the employees at this meeting that if he ( Wood ) knew who the leaders of the
Union were, or who signed union cards , he would discharge them. Since I am convinced
by the evidence as a whole that Wood , Instead, threatened to discharge any employees
caught discussing the Union on the job, I am rejecting Taylor's testimony to the limited
extent that it is in conflict with my findings to that effect . Wood, Vest, the two Johnsons,
aad Wilhite denied generally that Wood had uttered any threats to discharge employees
who joined or assisted the Union. To the extent that these denials are inconsistent with
my above findings, I do not credit them. Nunnelly's demeanor on the witness stand, and
the cold record of his testimony in the transcript, both revealed a reluctance on his part
to give any testimony against the Respondent. I am constrained, therefore, to give great
weight to his testimony that Wood had made the remark that it was within his power to
discharge any employee "for the way he parted his hair "
12 Based on the testimony of Taylor, Estes, James W. Johnson, Odle Johnson, Doyle
Wilhite, and Manager Wood. The testimony of all the witnesses as to what occurred
at this meeting is in substantial agreement , although there was some conflict , which I do
not deem to be significant, as to how Wood formulated the question on which the employees
were to vote . Some of the witnesses understood the question to be whether the employees
wished to repudiate the Union ; others, whether or not they wished to have Goidel Invited
to a meeting of the board of directors to present the demand for recognition of the Union.
It is clear , in any event, that the standing vote taken by Wood did require the employees
to express , openly their individual desires as to whether or not the Union should continue
to represent them.
13 Based on Taylor's undenied testimony , which I credit.
762 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shortly before the time the meeting was scheduled to begin, Manager Wood
drove past the courthouse in one of the Respondent's trucks, and then circled
around the block two or three times, passing by the entrance of the courthouse
in the same direction each time."
On June 29, 1950, 3 days after demanding recognition of the Respondent, the
Union filed with the Board a petition for certification as collective bargaining
representative of the Respondent's employees (Case No. 10-RC-976). Following
that date, the parties entered into a consent election agreement, and an election
was conducted by agents of the Board on August 29, 1950. It is stipulated that 6
of the employees voted for representation by the Union and 26 voted against.
Employee Lawson Taylor acted as the Union's official observer at the aforesaid
election. About a half-hour after this election, while Taylor and Superintendent
Johnson were driving in a company truck to perform some work, Johnson told
Taylor that in view of the results of the election he (Taylor) "might as well stop
canvassing for the Union." Taylor asserted that he "was not through with
it and . . . was still as much for the Union as ever." Johnson then told Taylor
that he "might as well start looking for another job," that Taylor was "not
wanted there." 16
B. Conclusions as to interference, 7estraint, and coercion
When the Respondent suspected that some union might attempt to organize
its employees, even before any such attempt actually was initiated, it began,
through Manager Wood and Superintendent of Operations Johnson, to carry on
a campaign designed to forestall the unionization of its employees. That cam-
paign bore two aspects : the first consisted of communicating to the employees
the Respondent's opposition to union organization, and of seeking to persuade
them that it was to their advantage to remain unorganized ; the second, of
prying into the details of the employees' organizational efforts through inter-
rogation and surveillance, interfering with the union activities of the employees
by promulgating and enforcing a discriminatory no-discussion rule, making
veiled threats that employees who supported the Union might be discharged,
and requiring the employees by means of a standing vote to reveal their attitude
towards the Union. Insofar as the Respondent's efforts to combat the Union
were restricted to the expression of views, arguments, and opinions, without
including therein any threats of reprisal or promises of benefit, they did not,
of course, constitute violations of the Act, for such expressions are protected
both by the provisions of Section 8 (c) of the Act, and the constitutional priv-
ilege of free speech. Some of the Respondent's antiunion activities, however,
exceeded the bounds of these protections; they are discussed below.
At the first meeting of the Respondent's employees addressed by Manager
Wood on the subject of unionism, during May 1950, Wood, in addition to ex-
14 Based on the undenied, credited testimony of Goidel, Taylor, and Estes . Wood admitted
driving past the courthouse on the occasion in question , and seeing Estes standing in front
of the building. He testified further that he may even have circled around the block
several times, but did not recollect why he did so, if he did, or what the purpose of his
driving past the courthouse was on that particular evening. Wood explained that he
frequently had occasion to drive on that route in the ordinary course of his comings and
goings, and that at times he might find it necessary to retrace his route, such as to return
to his office to pick up something he had forgotten to take home, or the like. He denied
that his purpose in driving past the courthouse that night was to spy on the meeting of the
Union.
15 Based on the testimony of Taylor, which I credit. Johnson denied generally that at
any time in talking to Taylor he had referred to "the Cooperative firing him because he
belonged to a union , or was in union activities " To the extent that this general denial
is in conflict with the above-quoted testimony of Taylor, I do not credit it.
CULLMAN ELECTRIC COOPERATIVE 763
pressing his opposition to the advent of a union, announced that any employee
caught discussing the subject of unions during working hours would be subject
to the penalty of discharge. On, June 26, 1950, when some of the Respondent's
employees, stepped outside the Respondent's premises , after completing their
day's work, but before their official quitting time, to inquire of Union Repre-
sentative Goidel how the Respondent had received the Union' s_ request for
recognition, Wood angrily ordered them to return to the Respondent' s premises,
and warned them that they could be discharged for talking to Goidel during
working hours. The Respondent's rule against discussion of unionism during
working hours was reiterated by Wood,at the meeting of employees held a day
or two later, this time reinforced not only by the warning that anyone caught
violating the rule would he discharged, but also by the remark that the Respond-
ent could discharge any employee, for any reason, including the Respondent's
dislike of the way such employee "parted his hair." Wood testified that be
promulgated the rule because the subject of union organization is a controversial
one, and he was desirous of preventing disruption of the Respondent's oper-
ations by prohibiting the employees from engaging in such discussions when
they were at work. If that were the real motive and effect of the rule as
announced and enforced by the Respondent, the Respondent would have been
clearly within its rights in establishing and applying it. The Board has rec-
ognized in its decisions that working time is for work, and that the Act does not
prevent an employer from promulgating and enforcing reasonable rules govern-
ing the conduct of employees during working hours 36
I am persuaded by the evidence in this case, however, that the Respondent's
announcement and enforcement of the no-discussion rule was neither motivated
by a bona fide desire to prevent disruption of its operations by prohibiting con-
troversial discussions during working hours, nor that the promulgation and
enforcement of the said rule had that effect. On the contrary, even after the
announcement of the rule, the Respondent's own officials and supervisors engaged
in antiunion activities and discussions during working hours, as witness the
various meetings held during working hours as part of the Respondent's antiunion
campaign, Superintendent Johnson's interrogation of employee Nunnelly about
union affairs during working hours, during which Nunnelly himself called John-
son's attention to the rule in an effort to avoid answering his questions, and
Johnson's conversation with Taylor during working hours on the day of the
Board-conducted election, in which he urged Taylor to cease his efforts on behalf
of the Union. Moreover, the Respondent announced the no-discussion rule simul-
taneously with its discovery that union activity had been carried on among em-
ployees of other enterprises in the vicinity similar to its own; the announcement
was made at a meeting which marked the beginning of the Respondent's antiunion
campaign . This, coupled with the complete absence of any evidence in the record
that union discussions on the part of the Respondent's employees had interfered
with their work or threatened to do so, tends to negate the Respondent's conten-
tion that the promulgation of the rule was occasioned by any necessity or desire
to avoid disruption of work rather than by an intention to interfere with and
impede the organizational efforts of its employees. In addition, as uncontradicted
evidence in the record reveals, and I find, the Respondent's employees customarily
and openly engaged in discussion during working hours of all sorts of subjects,
including politics, sports, and many others, without in any way being restricted
by the Respondent or its supervisors from doing so. With regard to the Respond-
ent's enforcement of the no-discussion rule, it is significant that it was enforced
16 Peyton Packing Company, Inc., 49 NLTtB 828 , 843, May Department Stores Company,
59 NLRB 976, 980-981.
764 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only as applying to prounion discussion or activity, while antiunion discussions,
as has been noted above, were not only sanctioned by the Respondent during
working hours, but carried on by its own representatives. On the occasion
when the employees were forcefully instructed by Manager Wood to desist from
engaging in conversation with Union Representative Goidel, these employees had
returned to the Respondent' s premises after completing their day's work in the
field, and the said conversation occurred during the short period while the
employees were waiting around the premises to be dismissed for the day. There
is nothing in the record to indicate that the employees were neglecting their work
by talking to Goidel, although Manager Wood testified generally that " at times"
the Respondent found work for the employees to do around the warehouse during
the period between their return from the field and the official quiting hour."
Under all these circumstances I am convinced, and find, that the Respondent
announced and enforced its rule against discussing the subject of unions during
working hours for the discriminatory purpose of impeding any attempts by a
union to organize its employees ; that the promulgation and enforcement of the
said rule did not bear any reasonable relationship to the efficient operations of
its business ; and that the necessary effect of the promulgation and enforcement
of the rule, in the circumstances of this case, was to interfere with, restrain, and
coerce the Respondent's employees in the exercise of their rights under Section
7 of the Act, in violation of Section 8 (a) (1) thereof.18
On June 26 or 27, 1950, Superintendent Johnson, as has been set forth above,
questioned employee Estes as to whether the latter had signed a union applica-
tion card, how many other employees had signed such cards, and who had at-
tended the meetings of the Union. Johnson admittedly reported on this con-
versation to Manager Wood. At about the same time, Johnson also interrogated
employee Nunnelly during working hours with regard to the latter's attitude
towards the Union. Such interrogation by an employer of an employee, es-
pecially by an employer who has made plain his opposition to the organization
of his employees, necessarily has the effect of intimidating the employees from
exercising freely their self-organizational rights under the Act, and is not pro-
tected by the employer's right to express his views, arguments, or opinions,
The Board has consistently held that such interrogation constitutes, per se, a
violation of Section 8 (a) (1) of the Act. I find that by Johnson's above-de-
scribed questioning of Estes and Nunnelly the Respondent interfered with, re-
strained, and coerced its employees in the exercise of their statutory rights,
thereby engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.19
Also on June 26 or 27, 1950, Manager Wood, in addressing the Respondent's
employees, coupled to his antiunion speech a warning that the Respondent had
the power to discharge any employee "for the way he parted his hair." It
hardly requires any laboring of the point to make it plain that such a remark,
made in the context of an address stressing the employer's opposition to the
unionization of his employees, and under circumstances where the employer has
"It is reasonable to infer from all the circumstances surrounding the Goidel incident
that if the employees had stepped off the Respondent 's premises for a few minutes on
that occasion for any other purpose except to pursue their interest in the Union, no
objection would have been raised thereto. I conclude and find that Manager Wood ordered
the employees to return at once to the Respondent's premises, under penalty of discharge
if they disobeyed these instructions, only because the employees were speaking to a union
representative.
18 Cf. Standard-Coosa-Thatcher Company, 85 NLRB 1358, 1364; W. C. Nabors Company,
89 NLRB 538, 566; Allen-Morrison Sign Co, Inc, 79 NLRB 904, 917; Hershey Metal
Products Company, 76 NLRB 695, 696; Macon Textsles, Inc., 80 NLRB 1525, 1527.
39 Standard-Coosa-Thatcher Company, supra, and cases therein cited.
CULLMAN ELECTRIC COOPERATIVE 765
actively questioned employees about.' their union activities and sympathies,
amounts to nothing less than a thins veiled threat that any employee who de-
fied the employer's exhortations to refrain from supporting the Union might be
discharged by the employer on any convenient pretext. Of a kind with Wood's
oblique threat is the statement made to employee Taylor by Superintendent
Johnson immediately following the election on August 29. The suggestion that
Taylor might as well start looking for another job because he was not wanted
in the Respondent's employ, made immediately following Johnson's unsuccessful
attempt to induce Taylor to renounce his union activities, can be interpreted
only as a threat that Taylor would be discharged for his allegiance to the Union.
It is an established principle that an employer violates the explicit language and
intent of the Act when he threatens economic reprisal against prounion em-
ployees. What an employer may not say bluntly, he may not communicate to
his employees by indirection or innuendo. I conclude and find that the Re-
spondent, by the above-quoted remarks of Manager Wood and Superintendent
Johnson, committed unfair labor practices within the meaning of Section 8 (a)
(1) of the Act.
The standing vote conducted by Manager Wood among the Respondent's em-
ployees on June 30, 1950, whereby those employees who wished to repudiate the
Union were instructed to rise, and those who still wished to be represented by
the Union were told to remain seated, has been described above. Such employer-
conducted polls have been consistently held to constitute an illegal infringement
on the rights of employees which are protected by the Act, even where the
employer, contrary to the facts herein found, allowed the employees to express
their preference by a secret ballot. To permit employers to derogate to them-
selves the function of ascertaining the wishes of their employees with respect
to representation for purposes of collective bargaining, would, for obvious rea-
sons, make a mockery of the right of employees freely to designate their own
bargaining representatives. For an avowedly antiunion employer such as the
Respondent to require its employees openly to take a stand for or against the
Union at a meeting conducted by the employer, amounts, in addition, to a form
of interrogation such as is proscribed by the Act. I find that by conducting
the poll as above-described, the Respondent interfered with, restrained, and
coerced its employees in the exercise of their rights under the Act, in violation
of Section 8 (a) (1) thereof.'"
There remain for consideration the contentions of the parties with respect to
the alleged surveillance of union meetings by Manager Wood. The first of these
meetings, held in early August 1950 at the courthouse in Cullman, was attended
by Wood. Under ordinary circumstances, the mere attendance by a representa-
tive of management, at a meeting of employees held in the course of their own
concerted activities, has the effect of restraining and coercing them in the exer-
cise of the right to carry on such activities. Consequently, the Act has been
interpreted so as to forbid employers or their representatives from placing
employees under restraint by intruding at such meetings. That principle, sound
though it is, must be reasonably applied, and I am of the opinion that it would
not effectuate the purposes of the Act to base a finding of unfair labor practices
on Wood's conduct in attending the Union's first meeting at the courthouse.
It is undisputed that Wood was invited by some of the employees to attend the
meeting. Further, he was permitted to remain in attendance without objection.
Moreover, since the meeting was devoted only to a general discussion of the
history and rights of labor by the Union's attorneys, it could hardly be said that
20 Cf. Stainless Ware Company of America, 87 NLRB 138, 153, 155 ; Stocker Mfg. Co., 86
NLRB 666, 667 ; Granite State Machine Co ., Inc., 80 NLRB 79, 101.
766 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Wood's attendance served in any way to inhibit the activities there carried on.
I shall therefore make no finding that Wood's attendance at the first meeting
constituted an unfair labor practice. -
I am persuaded, however, that the situation is different with regard to Wood's
conduct in connection with the meeting of the Union scheduled to be held on
the night before the Board election, namely, on August 28, 1950. We have seen
that the Respondent manifested its opposition to the Union, and made active
efforts to ascertain what progress it was making in enlisting the Respondent's
employees. Moreover, through the threatening remarks made by Wood and
Johnson, and the promulgation and enforcement of a discriminatory rule against
union discussion, the Respondent had exhibited its determination to impede the
Union's organizational activities. Wood's circling of the scene of the Union's
scheduled meeting on August 28, in the light of these facts, impels the conclusion,
in the absence of a reasonable explanation to the contrary, that he deliberately
went past the meeting place of the Union several times for either or both of the
following reasons : to ascertain which employees, or how many, were coming to the
meeting, and to restrain and coerce employees, by showing himself at the scene,
from attending it. In any,event, Wood's presence at the scene, at the time
and in the manner in which he was there, necessarily would have a restraining
and coercive effect upon the employees. There is no showing that Wood was
asked to attend this meeting of the Union. It may be true, as Woods testified,
that it was not unusual for him to drive on that particular route in the ordinary
course of his day's activities. However, I am not persuaded that his ordinary
comings and goings would account for his circling around the courthouse several
times, without interruptions, at the precise time that employees were standing
near the entrance of the building in anticipation of a scheduled meeting of the
Union. Although Wood remembered driving past the courthouse, and seeing
employee Estes there, he failed to explain what led him, on that occasion, to
circle around the scene several times as he did. I conclude and find, on the
basis of the record as a whole, that Wood drove past the scene several times to
keep the meeting place of the Union under surveillance, and that his conduct
in so doing necessarily interfered with, restrained, and coerced the employees
in the exercise of their rights under the Act. I further find that the Respondent
thereby committed unfair labor practices within the meaning of Section 8 (a)
(1) of the Act 21
C. The alleged discriminatory discharges of Lawson Taylor and Elbert Estes
Taylor.entered the Respondent's employ in November 1947, as a trainee under
the Veterans' Training Program, at a starting rate of pay of 60 cents per hour.
His employment was terminated as of September 6, 1950, at which time he was
working for the Respondent as a "Class B lineman" at a pay rate of 90 cents
per hour.
The complaint alleges that Taylor's employment was terminated by the Re-
spondent's action in discharging him because of his union affiliation and
activity. In its answer the Respondent denies that it discharged Taylor, and
alleges affirmatively that the latter resigned from its employ.
Estes was in the Respondent's employ from December 1945 until September
6, 1950, when he was admittedly discharged. He started as a "right-of-way"
employee at 50 cents per hour, and was engaged in the same kind of work at the
time of his discharge, but by that time he had advanced to a wage rate of 85
cents per hour.
21 See : H & H Manufacturing Company, Inc., 87 NLRB 1373, 1375, 1388-1389
9
CULLMAN ELECTRIC COOPERATIVE 767
Both Taylor and Estes were absent from work , with the permission of Manager
Wood, on Friday, September 1, 1950. Taylor had requested the day off, which
was granted by Wood , for the purpose of going to Birmingham , where as he testi-
fied without contradiction , and I find, he received some inoculations in connec-
tion with his membership in the Naval Reserve R2 Estes received permission
from Manager Wood to take the day off to permit him to repair the roof of his
house.
According to Estes' undenied testimony, which I credit, he completed the afore-
said repairs before noon of Friday At about that time, Taylor, having returned
from Birmingham , came to Estes ' house and suggested they drive to Huntsville,
Alabama, in order to file applications for jobs with the electric department of
the said municipality, which they had heard were open. Acting on this suggestion,
Taylor and Estes drove to Huntsville, arriving there at or shortly before noon,
and filed applications for the positions in question.23
On Tuesday, September 5, Assistant Manager George B. Terry and Superin-
tendent Johnson came to the place where Estes was working and, while Johnson
waited at a point some distance away, Terry engaged Estes in conversation.
,Terry said to Estes, "It looks like you are not satisfied with your job. What
about just quitting?" After some further conversation, Estes informed Terry
that lie would not quit, and said, "If you want me to quit, just fire me." Terry
answered, "No, I don't want to do that," and then left, saying, "Well, I am going
over to see Taylor." 24
The next morning, Wednesday. September 6, when Estes reported for work,
Superintendent Johnson told him that Terry wished to see him. Terry informed
Estes that he would "have to fire" him, that Terry had been instructed by Man-
ager Wood to discharge Estes and Taylor on the previous Monday, but that he
hated to do it and had "put it off until now." When Estes pressed Terry for
some reason for his discharge, the latter stated that he did not know the reason,
that he was satisfied with the work of Estes and Taylor ; and that he would
22 According to Taylor ' s undented , credited testimony , he had taken time off , with per-
mission, on about five previous occasions in order to receive a series of inoculations which
were required as a result of his membership in the reserve forces of the Navy. On each
of these occasions he was absent from work the whole day.
29 Based on the credited testimony of Taylor and Estes There is some conflict between
the testimony of Taylor and Nunnelly as to the time of day when Taylor and Estes arrived
at their destination , but I deem this conflict to be of little significance . The evidence as
a whole convinces me that Estes and Taylor came to Huntsville sometime around noon.
14 Based on the credited testimony of Estes Terry admitted that during this conversa-
tion he "probably told [Estes ] it looked like he wasn 't satisfied with his work ." Terry
also testified that he did not recollect whether or not he suggested that Estes quit his
lob with the Respondent . Terry and Johnson testified that on the occasion in question,
Terry first questioned Estes as to whether or not be had been to Huntsville the previous
Friday applying for another job; that Estes denied having been there ; that Johnson
then confronted Estes with the statement that the Respondent had ascertained that Estes
had been to Huntsville and had filed an application for a job there , whereupon Estes
defiantly admitted that he had . Estes denied that either Terry or Johnson on this occasion
said anything to him about having been to Huntsville . Estes impressed me as a more
reliable witness than either Terry or Johnson . Moreover , both Estes and Terry agreed
In their testimony that Estes was not discharged on the occasion of this conversation,
but on the next day. Terry testified further that he had been Instructed by Manager Wood
to ascertain whether Estes had been to Huntsville on the day he took the day off to fix
his roof, and if he found that Estes had made the said trip , to discharge him. It is
reasonable to believe that if, in fact, Terry and Johnson had confronted Estes with an
accusation that he had been to Huntsville, and had obtained a confession from him, as
they claimed , they would have discharged Estes on the spot.
kc
768 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be willing to help them obtain other employment, even to the extent of driving
them about in his car to look for work Y
It is undisputed that on Tuesday, September 5, after talking to Estes, As-
sistant Manager Terry drove to the place where Taylor's crew was at work and
asked to speak to Taylor. According to the testimony of Taylor, the following
discussion took place: Terry informed Taylor that he (Terry) had been in-
structed by Manager Wood to discharge Estes and Taylor on Monday ; that he
hated to do this, and had delayed carrying out the instructions until then ; but
that, like everybody else, he had his orders to carry out and therefore was
forced to "come and 'say it." Taylor then told Terry that he had already
informed Superintendent Johnson of his intention to quit his job on the following
Friday, whereupon Terry 'asked him whether he would not quit at once. To
this Taylor replied, "No, I have my time turned in for Friday. If you want
to fire me now, go ahead." Terry answered, "0. K., come by in the morning and
pick up your check." 28 Terry's account of his conversation with Taylor is in
conflict with the foregoing. According to Terry, he had already been informed
of Taylor's intention to quit at the time he opened the conversation with Taylor,
and he simply remarked to him that Foreman Vest and Superintendent Johnson
had told him of Taylor's plans, whereupon Taylor affirmed the fact that he was
quitting on Friday. Terry further testified that after this opening exchange, he
engaged Taylor in conversation about "some bad debts and things, and try to
help him getting straightened out, and I didn't want him to leave feeling bad,
if there was anything the matter, and if I could help him I would be glad to,
and he became mad. . . ." Terry's testimony continues : "Well, he told
me if it was satisfactory with me it would be with him, he would just call in
the next morning ... and pick up his check." At that point, Terry further
testified, he told Taylor that if the latter wished to work "on until Friday, it
was perfectly all right," whereupon Taylor insisted on picking up his check the
next morning (Wednesday). It is undisputed that Taylor's employment was
terminated the next morning, when he received his final pay check.
Insofar as Taylor's termination is concerned, the only significant factual
issue which results from the conflicts in testimony above summarized, is
whether the Respondent insisted on discharging Taylor as of Wednesday, Sep-
tember 6, instead of allowing him to leave its employ voluntarily on Friday,
September 8, or whether Taylor insisted on being paid off on Wednesday, Septem-
ber 6, as Terry testified. Taylor admittedly had announced his intention of
quitting on Friday, and as he himself testified, he told Terry when the latter
approached him on Tuesday that he was quitting on Friday. It is likewise clear
from the testimony of Manager Wood that Wood had instructed Terry on the
preceding Friday, September 1, to discharge both Estes and Taylor if it were
"Based on Estes' credited testimony . Terry testified that on the day he discharged
Estes he told the latter that he was being discharged "due to the falsehood about the trip
to Huntsville, and also about some complaints that had come in from the other employees,
and anything further, that he would have to talk to Mr. Wood about." I do not credit
this testimony.
26 Taylor had admittedly made a statement to Superintendent Johnson before the above-
described conversation with Terry, earlier the same day, that he was quitting his job
with the Respondent the following Friday. Johnson's testimony as to when Taylor first
informed him of his intention to quit was confused, but at one point he testified that on
the Tuesday prior to the day Taylor's employment was terminated, Taylor had informed
him that he would not "be back the following Monday." An employee in Taylor' s crew,
Odie Q. Johnson, also testified with respect to the conversation between Superintendent
Johnson and Taylor, and from his description, it would appear that on Tuesday, Septem-
ber 5, Taylor told Johnson that he was going to quit his job on the following Friday.
I conclude and find that on Tuesday, September 5, Taylor told Superintendent Johnson
that lie was quitting the Respondent's employ on the following Friday.
CULLMAN ELECTRIC COOPERATIVE, 769
ascertained that they had made the trip to, Huntsville on, that day. Conse-
quently, this case presents a situation where the Respondent had determined to
discharge Taylor prior to its discovery that he intended definitely to quit.
Assuming, as I do, that the Respondent was anxious to rid itself of Taylor
because of his stubborn adherence to the Union, I find it difficult to believe that
Terry would not readily have accepted Taylor's offer to quit the Respondent's
employ on Friday, September 8, but instead would have insisted that he be dis-
charged as of Wednesday, September 6. This is especially incredible in view
of Terry's attempt to induce Estes to quit, immediately preceding his discussion
with Taylor. I think it probable that even if Terry had determined, after
unsuccessfully asking Estes to quit, that it was necessary to discharge both
men in order to get rid of them, he would promptly have seized upon Taylor's
voluntary offer to quit on the following Friday when the latter announced that
intent. For these reasons I am unable to credit Taylor's testimony that Terry
insisted on terminating his employment as of Wednesday, September 6, instead
of permitting him to work through Friday. I conclude and find, therefore, that
Taylor quit his employment on Tnesda^. September 5, his termination to take
erect as of the end of that day.
In this connection , the General Counsel contends that even if Taylor did quit
his employment, the circumstances are such that his quitting should not be
deemed to have been a voluntary act, but that, in fact, he was forced out of
the Respondent's employment, and his termination should be held to have con-
stituted a "constructive discharge." I can conceive of circumstances where an
antiunion employer can make a prounion employee's job so untenable that the
employee is forced to quit, but I am not convinced that in this case Taylor was
constructively discharged within the meaning of the Act. I am persuadew
that the Respondent demonstrated an intent to rid itself of Estes and Taylor
as employees because of their affiliation with the Union. It seems equally clear
that Taylor, like Estes, would have been discharged had he not quit. But
unless the employer in such a situation does something more than manifest
his intention to discharge the employee, no case of discriminatory discharge
has been established until the discharge is effectuated. , Had the Respondent
here have taken some affirmative action, such as assignment of Taylor to odious
tasks, or discriminatory treatment of Taylor with respect to privileges, or the
like, the argument might be valid that it would be unreasonable to require
Taylor to have submitted to such discriminatory treatment in order to retain
his right to a remedy under the Act. In the absence of such a showing, it is my
conclusion that the General Counsel has railed to establish a case of constructive
discharge of Taylor.
I have already indicated that on the basis of the record as a whole 1 view
the discharge of Estes as having been discriminatorily motivated. The Re-
spondent contends that it discharged Estes for two reasons: (1) That he had
been for some time previous to his discharge a, generally unsatisfactory em-
ployee; (2) because he requested a day off on Friday, September 1, in order
to repair his house, and then utilized that day instead for the purpose of making
a trip to Huntsville to apply for another job, following which he lied to the
Respondent by denying that he had done so.
In support of its contention that Estes was an unsatisfactory employee, the
Respondent adduced the following testimony : Assistant Manager Terry testi-
fied that he had received some complaints from Foreman Shaw, who was in
charge of the service truck on which Estes worked as a helper, to the effect that
Estes was a "trouble-maker among the men . . . and a tale-bearer," also
that Estes',"work was not too satisfactory because he didn't seem to want to
do anything. He just taken the attitude that all he wanted was pay day."
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Terry also testified that on some unspecified occasion when it was proposed to
transfer Estes to Foreman Vest as a helper , Vest "refused to work him," and
that some unidentified employees had complained against Estes to Terry.
Terry testified that he had spoken to Estes about these complaints , and had
"told him he should try to apply himself on the job and make a better hand." He
could not recall a specific occasion when he had spoken to Estes on that subject,
could not recall how long before Estes' discharge he had made these comments
to him, but could only remember that he had spoken to him "about twice ...'
probably several months apart." At a later point in his testimony , Terry as-
serted that Shaw had asked him "time and time again to transfer [Estes] to
some other work ." Terry elaborated his testimony under later questioning by
stating that he received intermittent complaints against Estes for the period of
about a year during which Estes was last in the Respondent 's employ ; that he
could not recall how long before the date of Estes' discharge he had made a
direct criticism to Estes about the latter 's work ; that Estes ' work did not, in
any event , show any improvement since that last time ; that he ( Terry) had
then resorted to asking Estes' foreman to prod him to improve his work; but
that he (Terry ) had never sought to obtain any further reports from the fore-'
man as to whether any such efforts to induce Estes to mend his ways had been
successful.
Superintendent Johnson testified : "As far as Estes' work , when you speak of
actual , physical work, it was all right . There was nothing wrong with his work.
His mental attitude became bad. His cooperative spirit just disappeared com-
pletely . He adopted a rather independent attitude and as best I could tell
did not have the job 's interest at heart." Johnson also testified that Shaw,
Estes' foreman , had "quite regularly ," in fact, every few days, voiced com-
plaints against Estes to Johnson, to the general effect that Estes was a disrup-
tive influence because he pried into the rates of pay , of other employees, and
carried tales from one person to another with respect to their pay rates, and
the like. On one occasion, Johnson testified , he learned that Estes had made
an unauthorized examination of the records of the Respondent to ascertain its
rates of pay for other employees . No direct criticism of this action was made
to Estes, according to Johnson , but a general notice to all employees was posted,
advising them that they were not to tamper with office records or equipment.
Doyle Wilhite, one of the Respondent 's nonsupervisory employees , testified
that he had observed Estes at times when they were working at the same site,
and that Estes "was causing right smart of friction on the gang . . . just
talking from one to another. Trying to pick up what one said and then go
to another."
Manager Wood testified , in sum, that he had received many complaints about
Estes, mostly to the effect that he was a tale-bearer , and that he was not coop-
erative.
Upon a consideration of the testimony given with respect to Estes' alleged
deficiencies as an employee , I am convinced that it consists largely of an exag-
gerated summary of faults which in reality played no part in the Respondent's
determination to discharge Estes, but which are now brought forward in retro-
spect to buttress the Respondent 's defense . The testimony , as can be seen from
the summary thereof set forth above, was for the most part extremely vague,
indicating that the witnesses had difficulty in recalling any specific exhibitions
of Estes' shortcomings which made any definite impression on the Respondent's
supervisors at the time they occurred . Moreover , the general criticisms made of
Estes as a "trouble-maker," "tale-bearer ." malcontent ," and the like are of a
nature so easily equated by an antiunion employer with his resentment of the
Iegitiniatpaetivities of a prounion employee, that I am inclined to believe that
CULLMAN ELECTRIC COOPERATIVE 771
to a great extent they consist of a rationalization or articulation of the Re-
spondent 's demonstrated hostility against Estes based on his persistent support
of the union organizational campaign . The mere fact that Estes was kept in
the Respondent 's employ for about a year after he allegedly became an unsatis-
factory employee , and that no discipline was ever taken against him, nor any
warning ever issued to him that he would be discharged if his work did not
improve, is in itself indicative of the fact that , on the whole, apart from his
adherence to the Union , Estes was considered a satisfactory employee. This
is not to imply that he was necessarily free of faults ; the evidence does
indicate that he probably irritated some of his supervisors and fellow -employees
at times. However, the evidence falls far short of convincing me that Estes,
whose actual workmanship was concededly satisfactory to the Respondent, was
so objectionable in other ways that the Respondent would have discharged him
on the ground that he was generally unsatisfactory as an employee.
The testimony offered by the Respondent in support of the contention that
Estes was discharged because he had requested and been granted a day off from
work on false pretenses , may be summed up as follows : 2' On Thursday , August 31,
10,50, the day before Estes took the day off, there had been a storm which damaged
some of the Respondent 's power lines, thus creating a need for all available
employees to remain on the job. On that Thursday , Estes told Manager Wood
that the roof of his house needed repairs, and asked Wood for permission to take
a day off from work on the next day ( Friday, September 1) in order to make
these repairs . Wood granted his request. On Friday, Wood was told that Estes,
accompanied by Taylor, had been in Huntsville during the day and had there
filed an application for a job. He then called Terry and instructed the latter to
discharge Taylor and Estes if he could establish that they had indeed been in
Huntsville . Terry called the man with whom the job applications had been filed,
satisfied himself that Estes and Taylor had in fact been in Huntsville on Friday,
and then carried out his instructions by discharging Estes?"
Estes testified without contradiction, and I find, that on Friday, September 1,
he actually made the repairs on the roof of his house , and had completed them
during the forenoon of that day . It was only after the said repairs had been
completed that he went to Huntsville, where he and Taylor made job applications
and later did some fishing According to the testimony of Taylor and Estes,
which I credit, they had been planning to drive to Huntsville on Saturday, Sep-
tember 2, to inquire about the job openings there, but decided to make the trip
on Friday after they got together late that morning and found that both of them
had completed taking care of the business for which they had taken the day off.
There is nothing in the record to indicate that either or both of them knew in
advance how much of Friday would be taken up by the business to which they
had to attend ; there is no proof that they deliberately asked for a whole day off
knowing in advance that they would be in a position to return to work for half
a day. Nor is there any evidence that the Respondent requested either of them
to return to work for part of the clay on Friday if they were able to do so.
Assuming that there had been a storm on Thursday which blew down some of the
Respondent 's lines, as I do, the situation must have been gotten pretty well in
hand during Thursday ; 29 otherwise it is reasonable to expect that Manager Wood
27I have aheady considered and rejected the contention that Estes was questioned about
his trip to Huntsville by Assistant Manager Terry and Superintendent Johnson on Tues-
day September 5, and that he lied to them about it.
zs Testimony of Manager Wood, Assistant Manager Terry , and Superintendent Johnson
20 Assistant Manager Terry testified • "We had a storm on Thursday and I ' ll say every-
body went , to work, approximately around from-5 • 00 toA;*,00 o'clock , and we worked all
day and I went home about 10 • 00 o'clock that night and still the next morning started
working again "
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would not have granted two badly needed employees the next day off. It is sig-
nificant that, so far as the record shows, Wroood made no effort to dissuade Taylor
or Estes from taking the day off on Friday, or to persuade them to postpone their
business until a more convenient time for the Respondent. These facts impel
the' conclusion that in Manager Wood's Judgment, the Respondent could spare
these two employees from their work for the whole of Friday Wood himself,
apparently, entertained no doubts of that, since, as the record shows, he granted
the request for a day off to both Estes and Taylor without consulting any of his
subordinate supervisors about the advisability of doing so. In all of the cir-
cumstances, it can hardly be said, as the Respondent contends, that Estes falsified
to the Respondent in requesting permission to be absent from work on Friday.
Nor can it be said that the Respondent reasonably entertained the impression,
after learning of Estes' trip to Huntsville, that Estes had lied about the matter
when he asked for the day off. It would have been an easy matter to check on
Estes' claim that he had, in fact, made repairs to his roof on Friday. In view
of the flimsiness of the reasons advanced by the Respondent for discharging
Estes, and in the light of all the evidence of the Respondent's hostility against
the Union, and the threats made by the Respondent that it was in a position to
seize upon any pretext in order to discharge prounion employees, and that an
employee who refused to repudiate the Union should start looking for other
employment, I am persuaded that in the case of Estes, who had not concealed
from the Respondent his continued adherence to the Union even after most of
the other employees had repudiated it, the Respondent did in fact seize upon
Estes' trip to Huntsville as a pretext for discharging him, and that the real
reason for his discharge was the Respondent's desire to rid its employ of those
employees who seemed determined to continue their organizational efforts.
On the basis of the record as a whole, I conclude and find that by discharging
Estes on September 6, 19-50, and by failing and refusing at all times thereafter
to reinstate him to its employ,30 the Respondent has discriminated against him
with respect to his hire and tenure of employment, to discourage membership in
the Union, and has thereby interfered with, restrained, and coerced its employees
in the exercise of their rights as guaranteed by Section 7 of the Act, thereby
engaging in unfair labor practices within the meaning of Section 8 (a) (3) and
(1) 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 practices affect-
ing commerce, it will be recommended that it cease and desist therefrom and
take certain affirmative action designed to effectuate the policies of the Act.
10 In its answer the Respondent denies that Estes at any time after his discharge applied
for reinstatement , and contends that, therefore, no finding can be made that the Respond-
ent has refused to reinstate him. It is well settled that where any employer discrimi-
natorily discharges an employee under circumstances demonstrating the futility, of 'a
request for reinstatement, the employee is under no obligation to make the vain gesture
of applying for reinstatement in order to preserve his full, remedial rights under the
Act. Although there is no showing in the record that Estes ever-made an application for
CULLMAN ELECTRIC. COOPERATIVE' 773
.Having found that, the Respondent has discriminated in regard to the hire
and tenure of employment of Elbert O. Estes, I will, recommend that, in order
to effectuate the purposes and policies of the Act, the Respondent offer him
immediate and full reinstatement to his former, or to a substantially equivalent
position," without prejudice to his seniority and other rights and privileges.
It will also be recommended that the Respondent make Estes whole for any loss
of pay he may have suffered by reason of the Respondent's discrimination against
him, by payment to him of a sum of money equal to the amount he would normally
have earned as wages from the date of his discharge to the date of the Re-
spondent's offer of reinstatement, less his net earnings during that period 33
Loss of pay shall be computed on the basis of each separate calendar quarter or
portion thereof during the period from the Respondent's discriminatory action
to the date of a proper offer of reinstatement. The quarterly periods, herein
called quarters, shall begin with the first day of January, April, July, and Octo-
ber. Loss of pay shall be determined by deducting from the sum equal to that
which Estes would normally have earned for each such quarter or portion
thereof, his net earnings, if any, in other employment during that period.
Earnings in one particular quarter shall have no effect upon the back-pay
liability for any other quarter 33 It will also be recommended that the Respond-
ent, upon reasonable request, make available to the Board and its agents all
payroll and other records pertinent to an analysis of the amounts due as
back pay.
It has also been found that the Respondent interfered with, restrained, and
coerced its employees in the exercise of the rights guaranteed them by the Act,
by threatening reprisals against employees who exercised those rights, by inter-
rogating employees about their union affiliations and activities, by engaging in
surveillance of a union meeting, by conducting an illegal poll of employees requir-
ing them to reveal to the Respondent their attitude towards the Union, and by
promulgating and enforcing a discriminatory rule against union discussion.
In view of the above findings, I am convinced that the Respondent has demon-
strated an intent generally to interfere with, restrain, and coerce its employees
in the exercise of their rights under the Act, and that the commission of other
unfair labor practices by the Respondent is reasonably to be anticipated from
the Respondent's conduct in the past In order, therefore, to make effective the
interdependent guarantees of Section 7 of the Act, to prevent a recurrence of
unfair labor practices, and thereby minimize industrial strife which burdens and
obstructs commerce, and thus effectuate the policies of the Act, I will recommend
that the Respondent cease and desist from in any, manner infringing upon the
rights guaranteed in Section 7 of the Act.34
Since I have found that the Respondent did not discharge Lawson Taylor,
but that the latter quit his job in the Respondent's employ, I shall recommend
that the complaint be dismissed insofar as it alleges that Taylor was discrimi-
natorily discharged.
reemployment, I am convinced that in the circumstances of this case it would have been
futile for him to do so, and that Estes is entitled to the usual remedy of reinstatement
and back pay Cf. The Red Rock Company, 84 NLRB 521, 529; Kelco Corporation, 79
NLRB 759, 795
31 In accordance with the Board ' s consistent interpretation of the term , the expression
"former or substantially equivalent position " is intended to mean "former position
wherever possible and if such position is no longer in existence then to a substantially
equivalent position." See: The Chase National Bank of the City of New York,.San Juan,
Puerto Rico, Branch, 65 NLRB 827.
33 See : Crossett Lumber Co., 8 NLRB 440
s3 F. W. Woolworth Company, 90 NLRB 289.
34 See : May Department Stores v. N . L. R. B., 326 U. S. 376, affirming as modified
145 F. 2d 66 (C A. 8), enforcing 53 NLRB 1366.
215233-53-50
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case , I make the following :
CONCLUSIONS OF LAW
1. Local Union 558, International Brotherhood of Electrical Workers, is a
labor organization within the meaning of the Act.
2. By interfering with, restraining , and coercing its employees in the exer-
cise of the rights guaranteed them in Section 7 of the Act, the Respondent
has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
3. By discriminating in regard to the hire and tenure of employment' of
Elbert O. Estes, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a) (3) 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.
5. The Respondent did not commit unfair labor practices by discriminatorily
discharging Lawson Taylor.
[Recommendations omitted from publication in this volume.]
NATIONAL CARBON COMPANY, DIVISION OF UNION CARBIDE AND CARBON
CORPORATION and UNITED GAS, COKE AND CHEMICAL WORKERS OF
AMERICA, CIO, PETITIONER. Case No. 8-RC-1316. June 17, 1952
Decision and Order '
Pursuant to a stipulation for certification upon consent election,
an election by secret ballot was conducted on July 13, 1951, under the
direction and supervision of the Regional Director for the Eighth
Region, among the employees in the stipulated unit. Thereafter, a
tally of ballots was furnished the parties, which showed the results to
be inconclusive., Accordingly, a runoff election was conducted on
August 1, 1951. Upon the completion of the runoff election, a tally of
ballots was furnished the parties. The tally shows that of approxi-
mately 1,462 eligible voters, 1,278 cast valid ballots, of which 637 were
for, and 641 were against, the Petitioner. There were 3 challenged
ballots.
On August 3, 1951, the Petitioner filed a letter with the Regional
Office stating, in general terms, that it wished to protest the Employer's
conduct affecting the election results and that supporting evidence
would be supplied on the Board's request? A copy of this letter was
immediately served on the Employer by the Petitioner.
3 The tally of ballots showed that of approximately 1,479 eligible voters, 1 , 270 cast valid
ballots, of which 611 were for the Petitioner , 36 were for other labor organizations, and
623 were against the participating labor organizations . There were 7 challenged ballots.
No objections to this election were filed '
2 The letter reads : "The United Gas, Coke and Chemical Workers of America, CIO,
wish to protest the conduct of the Company affecting the results of the election held
August 1 , 1951 , Case No . 8RC1316. Evidence supporting this protest will be forthcoming
upon -the request- of the National' Labor Relations Board."
99 NLRB No. 117.