Detroit Edison Co.

National Labor Relations Board - Board Decisions

Jun 20, 1947

74 N.L.R.B. 267 (N.L.R.B. 1947)

In the Matter of DETROIT EDISON COMPANY and UTILITY WORKERS
UNION OF AMERICA, CIO, LOCAL 223 1
Case No. 7-C-1380.-Decided June 20, 1947
Mr. Max Rotenberg, for the Board.
Fischer, Brown, Sprague, Franklin d Ford, of Detroit, Mich., by
/Messrs. Harvey A. Fischer and Leon Jones, for the respondent.
Mr. Irwin J. Kasofj', of Detroit, Mich., and Mr. Herman E. Cooper,
by Mr. Ostrin, of New York City, for the CIO.
Mrs. Patricia Bromberg, of Detroit, Mich., for the Association.
Miss Grace McEldowney, of counsel to the Board.
DECISION
AND
ORDER
On July 16, 1946, Trial Examiner Charles E. Persons issued his
Intermediate Report in the above-entitled proceeding, finding that
the respondent had not engaged in the unfair labor practices alleged in
the complaint, and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the CIO and counsel for the Board filed
exceptions to the Intermediate Report; the CIO filed a brief in support
of its exceptions ; and the respondent filed a brief in support of the
Intermediate Report and, subsequently, a brief in reply to the brief of
the CIO. On April 15, 1947, a hearing for the purpose of oral argu-
ment was held before the Board in Washington, D. C., in which the
respondent, the CIO, and the Association participated.
The Board has considered the rulings made by the Trial Examiner
qt the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs filed by the parties, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner only to the extent that
they are consistent with the findings, conclusions, and order set forth
below.
1 Until October 1945 this Union was known as Utility Workers Organizing Committee
affiliated with the Congress of Industrial Organizations , herein called U W 0 C
74 N. L . R. B., No. 49. 267
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chairman Herzog and Mr. Houston do not agree with the Trial
Examiner's conclusion that the respondent has not dominated or inter-
fered with the formation or administration of the Association, or
contributed support to it, as alleged in the complaint. The Chairman,
however, does not share Mr. Houston's view that, on this record, the
Association should be disestablished. (See Remedy below.)
The facts regarding the Association and its predecessor, the Club,
are as follows :
Early in 1941, a group of non-supervisory employees of the Cus-
tomers Service Division of the respondent's Sales Department con-
ceived the idea of forming a social club in their division, similar to
other clubs among the respondent's employees. Assistant Foreman
Lawrence Van Tremper, whom they consulted about the matter, ar-
ranged for them to meet with H. R. Stevenson, assistant superintendent
of the Division. Stevenson approved the idea and encouraged them
to proceed with their plans; and at his suggestion, they used the re-
spondent's telephone to inform other employees of the Division of the
proposed club and to calla meeting for May 13,1941. At the meeting
on May 13, at which no supervisors were present, the employees voted
by a large majority to organize; and at a second meeting, held on May
20, 1941, after hearing reports of committees which had been appointed
to investigate the benefits of affiliation with the AFL, the Linkage
Club (a social club in the respondent's Sub-Station Department), and
the Michigan Bell Telephone Association (an unaffiliated labor or-
ganization of employees of another company), they voted to form "an
organization within the Company." At a third meeting, held on
June 4, 1941, Articles of Association and Bylaws were adopted. In
June 1942, these Articles were amended in minor respects; and in
August 1942, the Customers Service Division Club was incorporated
under the laws of the State of Michigan.
As recited in the Articles of Association, the original objectives of
the Club were purely social. The only membership requirement was
continuous employment by the Division for a period of not less than 6
months. Supervision of the affairs of the organization was vested in
a Board of Control, composed of representatives elected by the mem-
bers, and a president, vice president, and secretary-treasurer chosen
from that Board. Supervisors were eligible to join the Club, and the
majority of them did so; but they were not eligible to hold any elective
office. The Bylaws provided for annual meetings of the membership,
and for special meetings to be called whenever the president or
Board of Control considered them expedient, or when 10 members
filed a written request therefor.
DETROIT EDISON COMPANY 269
Until May 1944, when the Club was reorganized, as discussed below,
all meetings of the Club and of the Board of Control were held on
company premises; minutes of the meetings at which officers were
elected were sent to the respondent; and voting for representatives and
on Club questions was conducted openly during working hours through
ballot boxes placed on company premises. Like other social organiza-
tions, the Club was permitted to make free use of the respondent's
bulletin boards and inter-office telephone and mailing systems; address-
ograph plates were prepared for it by the respondent; and one of the
respondent's employees performed stenographic and clerical services
for its secretary during working hours. Before the annual member-
ship meetings in 1943 and 1944, E. J. Stouffer, superintendent of the
Customers Service Division, entertained the members as his guests
at dinner, and on another occasion paid for a supper for the women
members.
Although the activities of the Club were originally social it did
not long restrict itself to social activities. The Board of Control was
called upon to take action on complaints of the members about working
conditions; and at a special meeting of the Club on August 7, 1942, a
letter from Superintendent Stouffer was read in which he stated that,
"If at any time your Board of Governors wishes to discuss any personal
or Company matters with any Company official, we should be glad to
have you do so." Thereafter, on at least three occasions the Board of
Control met with representatives of management to discuss grievances,
wages, or working conditions.' Thus, on August 20, 1942, pursuant to
instructions received from the membership at the August 7 meeting,
the Board of Control had a conference with officials of the respondent,
at which it presented a request for a 15 percent raise for employees in
the Customers Service Division. No decision on the matter was
reached at that time, but at a subsequent meeting between the parties,
held on September 9, 1942, the respondent stated that a raise of 5
cents an hour, retroactive to August 31, would b^ given to the hourly
paid men, and approximately equivalent increases were promised for
the salaried and office employees. Again, on April 29, 1943, the Board
of Control met with Superintendent Stouffer and discussed various
working conditions, including the 48 hour week, seniority, dispatching
field workers on unusual assignments, etc.; and on August 17, 1943, it
presented a grievance to him on behalf of employee Kunart, which was
amicably settled. In addition, on several occasions Stouffer addressed
the Club membership on matters relating to working conditions.
At the special meeting of the Club on August 7, 1942, referred to
above, the advantages and disadvantages of union affiliation were dis-
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cussed, a fact which further indicates that the Club membership re-
garded its functions as not merely social. Following the discussion,
the members gave a vote of confidence in the Club. Thereafter, from
time to time, revision of the Club's constitution was considered. At
some time not definitely set by the record, but before February 1944,
A. C. Runge, the Club's president, went to Superintendent Stouffer
and "inquired about the Club changing to an Association." Stouffer
arranged a conference with P. J. Savage, one of the respondent's vice
presidents, and Runge told Savage that the Club "was desirous of
forming an association for bargaining purposes on working conditions
and wage rates, and wanted to know if the Company would recognize
this group as such." Savage replied "that they would have to go
through the regular channels of securing certification from [the Board]
before the Company would recognize them as a bargaining unit."
On March 7, 1944, the Board of Control adopted a motion that a
committee be appointed to revise the Club's Articles of Association
and Bylaws "for the purpose of providing an organization through
which the members may select representatives of their own choosing
to negotiate and bargain collectively with the management of the
[respondent] in respect to rates of pay, wages, hours of employment
or other conditions of employment," and "to provide an organization
for the employees of the [respondent] that is controlled by said em-
ployees through membership in this organization." A new constitu-
tion, embodying these provisions and changing the name of the or-
ganization from Customers Service Division Club to Detroit Edison
Employees Association, was accordingly prepared. After being ap-
proved by the Board of Control, the constitution was submitted to
the membership of the Club for a vote on or about April 27, 1944.
Prior to the election, held on company property on April 17, 1944, a
bulletin was mailed to all Club members informing them of the com-
ing election. It stated that the employees might soon be compelled
to select a bargaining agent, and that the purpose of the proposed
changes in the constitution was to provide them with a choice between
an independent union and an outside union ; it listed the advantages
of having an independent union and accordingly urged approval of
the proposed changes. Ballot boxes were maintained for several days
in the plants and offices, and employees frequently voted on company
time during the election. The changes were adopted by a large ma-
jority. On May 4, 1944, J. C. Currell, who had been elected president
of the Club in February 1944, wrote to Superintendent Stouffer,
notifying him of the Club's action; and on June 29, 1944, Currell and
John J. McCluskey, as president and secretary of the Club, filed ,with
the Michigan Corporation and Securities Commission a Certificate of
DETROIT EDISON COMPANY 271
Amendment to the Articles of Incorporation of the Club, signed by
the original incorporators , which set forth the new name and new
purposes of the organization. Both the letter to Stouffer and the
Certificate of Amendment stated that the changes were effective as of
May 1, 1944.
Under the new constitution, the Association, unlike the Club, was
authorized to admit members on a company-wide basis. Supervisors
were excluded from membership, but all other employees who had been
in the respondent's employ for 6 months were eligible to join. The
managing board, still known as the Board of Control, was made up
of representatives from each of nine divisions into which the mem-
bers were grouped; and each of these divisions, which corresponded in
general with the principal departments of the respondent's organiza-
tional plan, had, in addition, a division committee composed of elected
representatives.
The Association recognized all liabilities of the Club and took over
its bank account and personal property , and the officers of the Club
continued as officers of the Association until new elections were held on
June 30, 1944, when Currell was again elected president. Early in
May 1944, however, the Association rented space in an office building
and secured a telephone; although one meeting of the Board of Con-
trol, on May 10, was held in the respondent's General Office Building,
all Association meetings thereafter were held off the respondent's
premises.
On May 19, 1944 , the respondent issued a memorandum to its officers
and employees regarding the use of its facilities and services by em-
ployee groups, clubs, and associations. This memorandum made no
mention of the Club or the Association, but stated.that some question
had arisen as to whether the respondent's practice of supplying em-
ployee groups, organized as clubs, associations, and technical societies,
with facilities reasonable to their use and need, should be extended to
groups of employees wishing to meet to discuss or act among themselves
upon matters incident to collective bargaining, and that it was the
respondent's belief that decisions as to the appropriateness of holding
such meetings on company property might, in some cases, unintention-
ally lead to lack of impartial treatment as between groups. After
further stating that it was the respondent's intent that there should be
entire equality of treatment of employee groups engaged in collective
bargaining activities, and that it had no desire to influence the choice
of employees in the matter of representation or non-representation for
collective bargaining or as to any particular agent or form of agency to
be used, the memorandum concluded by saying that "no use of the
respondent's premises shall be approved for the purpose of effecting
755420-48-vol 74-19
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization for collective bargaining , union business meetings, or
other related activities ," and that printing , publication , and similar
services in connection with such activities would not be permitted.
It added, however , that this policy did not prohibit the granting of a
reasonable use of bulletin boards "for the posting of notices involving
no controversial matter, as for instance meeting notices," and stated
that "such privileges have already been extended to all organizations."
It further said that permission might also be given , upon application,
to any employee or group, when reasonable or appropriate , to use the
respondent 's property , facilities , or services for such purposes as were
purely educational , recreational , charitable , or social . There is no
substantial evidence that after the issuance of this memorandum the
Association was permitted to make any use of the respondent 's property
or facilities , with the possible exception of bulletin boards.
The Association did not immediately seek formal recognition as the,
bargaining representative of any of the respondent's employees. Some-
time in June 1944 , however, a committee appointed by Currell, con-
sisting of employees Gerry B. Stitt, Duncan Preston , and John Mast,
went to S.uperintenclent Stouffer to protest , on behalf of the Association,
a proposed change in the rate of compensation paid by the respondent
to employees who used their own automobiles in connection with their
work. Stouffer told them that he could do nothing for them "because
[the Association] had no right to bargain ," but added that if they
came as employees of the Division , he would arrange a meeting with
A. P. McLay, one of the respondent's vice presidents and sales manager.
Shortly thereafter , the respondent received a letter signed "Committee
on Automobile Rental Control , Customers Service Division ," stating
that the committee had been appointed to enter into discussion of the
proposed automobile mileage contract rate. The respondent 's reply,
as well as further communications on the same subject , was addressed
to Stitt, Preston , and Mast as members of this committee rather than
as a committee from the Association . On June 26, 1944 , representa-
tives of the respondent met with a group of employees of the Customers
Service Division , including the committee, the full Board of Control of
the Association , and at least one employee who was not a member of
the Association , to discuss the points raised in the committee 's letter.
At this meeting, it was agreed that there would be no change in the car
rental rates pending a decision by the War Labor Board as to whether
the proposed changes came within its jurisdiction . Although the War
Labor Board subsequently held that its approval of the new contracts
was not required , the respondent , on December 18, 1941, issued a notice
to all employee owners of automobiles in company service , only a small
proportion of whom were employees of the Customers Service Division,
DETROIT EDISON COMPANY 273
stating that , with minor exceptions , the car rental contracts in effect
on November 26, 1944 , would be continued "until governmental restric-
tions on Company mileage are substantially removed."
On October 13, 1944, Currell , as president of the Association, wrote
to the respondent claiming that the Association had a majority in the
Customers Service Division and in the Eastern Michigan Division and
requesting recognition as exclusive bargaining agent for certain desig-
nated classifications of employees in those Divisions . Vice President
Savage replied , on October 16, 1944, questioning the appropriateness.
of the proposed unit and suggesting that the matter be submitted to,
the Regional Office of this Board "for a determination as to whether
or not the suggested unit is a proper one for collective bargaining and
for the holding of an election to determine whether or not the em-
ployees of the ultimately approved unit desire your organization as
their exclusive representative ." There is no evidence that since that
time the respondent has dealt in any way with the Association.
Upon the above facts, regarding which there is no substantial dis-
pute, it is clear that the respondent approved , encouraged , and assisted
the formation of the Club , and, during its existence under that name,
subsidized dinners for its members , and permitted it to make use of
the respondent 's meeting places, bulletin boards, telephone , mail, and
stenographic facilities, and to conduct its elections on company time
and property . We are of the opinion, and we find, that by this con-
duct, the respondent dominated and interfered with the formation
and administration of the Club , and contributed financial and other
support to it, in violation of Section 8 (2) of the Act.
The respondent admits that it encouraged and assisted the Cluu
as it did other similar organizations of its employees , but contends
that its conduct was not illegal because the Club was merely a social
organization . We find no merit in this contention, because the Club
became a labor organization in 1942. It is true that the Act does
not prohibit assistance on the part of an employer to social organiza-
tions , but only to labor organizations . However, the Act defines a
labor organization as "any organization of any kind in which em-
ployees participate and which exists for the purpose , in whole br in
part, of dealing with employers concerning grievances , labor disputes,
wages, rates of pay, hours of employment , or conditions of work."
(Emphasis supplied. ) The Club's activities on and after August 20,
1942, in seeking and procuring an increase in pay, in presenting a
grievance on behalf of employee Kunart, and in discussing working
conditions with management, as related above, clearly brought it
within the scope of this definition. The respondent both invited,
and knowingly and willingly engaged in , dealing with the Club con-
274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerning wages, grievances, and working condition's 2 We do not view
these events as isolated or of no importance. Like the 'Trial Ex-
aminer, but unlike Mr. Reynolds, we find that, although the original
purposes of the Club were charitable, social, athletic, educational,
and recreational, and although the major part of its finances and of
the activities of its officials and members were expended on these mat-
ters, it was nevertheless a labor organization, within the meaning of
the Act.
The Trial Examiner likewise found that the Club was a labor or-
ganization, but concluded that the assistance given it by the respond-
ent was not illegal because it was given with intent to aid a social
organization, and not to affect its activities as a labor organization.
We do not agree. Section 8 (2) of the Act defines the unfair labor
practice in terms of the fact of an employer's domination of, inter-
ference with, or support of a labor organization, not in terms of the
employer's intent, or purpose in extending support, or the measured
effect of such support. Moreover, it is clear that to adopt the prin-
ciple that an employer's domination of, interference with,, and sup-
port of a labor organization do not fall within the proscription of the
Act unless there is specific intent to affect its labor activities would
make impossible the accomplishment of the objective of Section 8 (2)
of the Act to keep the arena of employee self-organization free from
the effects of any interference with or support of a labor organization
by an employer. Such a principle would mean that an employer
could, with impunity, lend his unrestricted support to the social
activities of a labor organization, although the existence of such sup-
port might be determinative in enabling it to achieve majority status
and the right to represent the employees for the purposes of collective
bargaining in competition with other labor organizations. Accord-
ingly, even if it be assumed, arguendo, that the respondent's intent
was merely to aid the Club in its social activities, this cannot alter the
fact that the respondent's conduct in interfering with the formation
and administration of the Club, and giving it financial and other
support, was violative of Section 8 (2) of the Act.
The question remains whether the Association carries with it the
same legal taint and infirmity which attached to the Club, or whether
the Trial Examiner correctly found it to be "an untrammeled and free
2 Whether or not the respondent actually bargained with the Club on these matters, as
contrasted with receiving and adjusting grievances presented by the Club, is immaterial
on the question of whether it was a labor organization. See Matter of The Tappan Stove
Company, 66 N. L. R B. 759 , and cases cited therein Accordingly , since the facts are
not entirely clear as to the precise character of the dealings, we make no finding as to
whether these dealings constituted collective bargaining or merely, as the respondent con-
tends, and as the Trial Examiner has found , the presentation and disposition of grievances.
In either event, the respondent dealt with the Club as a labor organization.
DETROIT EDISON COMPANY 275
bargaining agent . . . not disqualified as a statutory representa-
tive of respondent's employees by the circumstances disclosed as to
its origin, its activities, nor by any proven relationship with the respon-
dent." As noted above, effective May 1, 1944, the Club reorganized
as a formal labor organization under the name of the Association.
Thereafter, the Association discontinued its use of the respondent's
meeting places and facilities, and the respondent gave it no further
substantial support and refused to recognize it as the bargaining repre-
sentative of any of its employees unless certified as such by the Board.
The respondent therefore contends that it cannot be held to have domi-
nated or interfered with the formation or administration of the Asso-
ciation, or contributed support to it, in violation of Section 8 (2) of
the Act.
The Trial Examiner has found that the Association was merely a
successor to the' Club, and that, despite the absence of any "line of
fracture" between the two, the Association was "a labor organization
arising after full and free discussion among the employees." It could
as easily be said, however, that the Association is really the same or-
ganization as the Club, the members of the latter having proceeded, by
way of amendment of the articles of association and corporate charter,
to change its name and to clothe it with all the powers of a full-fledged
labor organization. If, as we have found, the organization was un-
lawfully supported by the respondent in violation of Section 8 (2)
of the Act while it bore the name "Club," simply changing its name,
broadening its authority, withdrawing further support and withhold-
ing recognition from it, could not, in and of themselves, automatically
operate to extinguish the violation.3
The respondent failed to take all the steps whereby the effects of its
unlawful support of the Club might have been completely dissipated
and the employees enabled to exercise their full freedom of self-
organization in forming the Association. The Board has frequently
held that where a labor organization evolves out of an organization
dominated and supported by an employer, the new organization is
likely to suffer from the same infirmities as the old unless the employer,
prior to its formation, has unequivocally, explicitly, and publicly dis-
avowed and disestablished the original illegal organization and has
given adequate assurances directly to the employees of their freedom
from further interference in choosing their representatives.4 In the
present case, the respondent took no such action, one fact which induces
a majority of the Board to hold that the violation of Section 8 (2)
3Cf N. L. R. B. v. Southern Bell Telephone and Telegraph Co, 319 U. S 50.
See, for example : N. L. R. B. v. Southern Bell Telephone and Telegraph Co., 319 U. S.
50; Westinghouse Electric & Mfg . Co. v. N. L. R. B., 112 F. (2d) 657 (C. C. A. 2), affirmed
per curiam , 312 U. S. 660.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARII
continued into 1944.5 Although the respondent had previously dealt
with the Club as a labor organization, it did not withdraw its support
until after its formal reorganization into the Association. The re-
spondent permitted the balloting whereby the Club was reorganized as
the Association to be conducted as usual on company time and prop-
erty, thereby assisting the transformation and giving the employees
some reason to believe that it approved the proposed revision.
The Company's memorandum of May 19, 1944, which stated its pol-
icy in regard to the use of its premises by labor organizations, and pur-
ported to state its neutrality as to such organizations, also was insuffi-
cient to establish a complete line of fracture between an unlawful
predecessor and a truly independent successor organization. The
memorandum not only failed to mention either the Club or the Asso-
ciation, but was issued 3 weeks after the transformation of the Club
into the Association. By that time much of the damage could have
been done.
The record also contains some evidence of disparate treatment of the
Association and the C. I. 0. Although it is not great in amount, and
reliance on it is not necessary for the conclusion we reach, the disparity
was sufficient in the light of the background to give the employees fur-
ther reason to believe that the Association was the organization ap-
proved and preferred by the respondent. The memorandum of May
19, 1944, recited, as one exception to the prohibition against the use of
company premises or facilities by labor organizations, that all organi-
zations might have "reasonable use of bulletin boards for the posting
of notices involving no controversial matter, as for instance meeting
notices." [Italics supplied.] Despite this announced policy, the pres-
ident of the C. I. 0. and employee Wilkinson were both denied per-
mission by the respondent's union relations adviser and other super-
visors to post C. I. 0. meeting notices on the bulletin boards in May
1944, although the Association was permitted to post notices thereon.6
b The failure of the respondent to take the affirmative steps required to make the fracture
complete, while tending to prove the violation , does not-in the Chairman's opinion-
necessarily mean that the Board should apply the strongest remedy available under such
circumstances
° The record also contains some minor evidence of the respondent 's preference for the
Association - employee Stanton testified without denial that he was solicited to join the
Association by an organizer in a conversation which took place as they stood only 5 feet
from Foreman Martin 's desk , in which the organizer told him. "You'll be forced to loin"
the Association , and that Foreman Martin , who had been one of the supervisory employee
members of the Club , did not interfere On the other hand , employee Kernan was cautioned
by Supervisor Smith not to discuss the C. I. 0 . over the telephone on company time or prop-
erty. He likewise told her she had been making a lot of mistakes in her work and asked
if her union affiliation was interfering with it; when she asked what the mislakes were, he
was unable to point out any to her.
Preference for the Association was also voiced in the speech of Ronald B Greene, the
respondents ' construction engineer , to one group of employees He addressed the Construc-
tion Engineering Department in February 1945, when the C I. 0 was attempting to organ-
DETROIT EDISON COMPANY 277
The Chairman and Mr. Houston are of the opinion, and find, that
the respondent dominated and interfered with the formation and ad-
ministration of the Association and contributed support to it, in vio-
lation of Section 8 (2) of the Act,7 and thereby interfered with,
restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act.
THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth above, occurring in con-
nection with the operations of the respondent described in Section I
of the Intermediate Report, 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.
THE REMEDY
Normally, in cases in which an employer has unlawfully domi-
nated, interfered with, and supported a labor organization, we have
ordered it to withdraw or withhold recognition from, and also com-
pletely to disestablish, such organization as the representative of any
of its employees. Mr. Houston, who agrees with the Chairman in
finding that the respondent herein originally dominated, interfered
with, and contributed support to the Association, would issue such
an order in this case. On this record taken as a whole, however,
Chairman Herzog believes that complete disestablishment of the
Association is not necessary to preserve for the employees that free-
ize that department . In this speech , Greene admittedly expressed opposition to union
organization as tending to create a barrier between management and employees ; informed
these employees that, if they did not wish to retain individual bargaining , they had a choice
between a national union , such as the C I . 0 and A. F. of L , the Association , or an inde-
pendent draftsmen 's union , and stated that in choosing among them they should consider
whether they would be associating with "their own kind of people " In addition , according
to employee William K Wilkinson's uncontiadicted testimony, Greene said that the C I O.
officers did not have the same education or were not the same kind of people as the employ-
ees in their Division , and that the Association could keep them "with their own kind "
We believe, howevei, that in its dealing with the Committee on Automobile Rental Con-
trol, the respondent was careful to avoid giving the impression of bargaining with the
Association , and that that incident cannot be considered as recognition or support of the
Association.
T The Trial Examiner, in finding that the Association was not company-dominated, relied
in part upon evidence that another organization of the respondent 's employees , the Cus-
toaners Accounts Employees Association, ouginated as a social club, later became a labor
organization , and was subsequently found, on the basis of a Board -conducted consent elec-
tion, to be the exclusive representative of employees in one of the respondent's divisions.
Since no 8 ( 2) charges have ever been filed with respect to that organization , the question
of whether it is a company -dominated organization has never been litigated or decided, and
the action of the Board ' s agents with respect to it is in no way determinative of the issue
in this case . See Matter of Pacific Manxfoldtng Company, Inc ,,- 64 N. L. R. B. 1257, 1274-
1275 , and cases cited therein.
278 DECISIONS OF NATIONAL LABOR' RELATIONS BOAR])
dom to choose their bargaining representatives that is contemplated
by the Act. To that extent the Chairman concurs with Mr. Rey-
nolds, although he cannot accept his colleague 's view that Section 8
( 2) was not violated at one time by this respondent.
Our finding that the respondent has dominated , interfered with,
and supported the Association is based primarily on the fact that,
because of the circumstances under which it came into existence in
1944, the Association could not originally have appeared otherwise
than as company -dominated in the minds of the employees. Im-
mediately thereafter , however, it took concrete steps to divest itself of
the indicia of company domination and support . At the same time
the respondent announced its neutrality in matters relating to col-
lective bargaining and its intention of withdrawing the use of its
premises and facilities for organizational activities, although it did
not comply with all the requirements imposed in some of the "frac-
ture" cases . Whatever assistance has been given to the Association
in the intervening three years has been insubstantial . There is no
evidence that the respondent has ever recognized or dealt with the
Association , as such, as the representative of any of its employees.
On the contrary , when the Association requested recognition as the
representative of employees in two divisions , the respondent imme-
diately suggested that the matter be referred to the Board, and de-
clined to grant any recognition . This may not be controlling, but on
this record it is some evidence of this respondent 's good faith.
Under these circumstances , and in view of the further fact that the
record shows that during the period of the Association 's existence,
as well as for many years previously , this respondent has recognized
and dealt with nationally affiliated unions, including the charging
union, as representatives of employees in some of its divisions , Chair-
man Herzog believes that the effects of this respondent 's unfair labor
practices have to a large extent been dissipated , and that, on this
record, the requisite freedom of self-organization of the employees
may be fully restored by posting an appropriate notice for 60 days,
without complete disestablishment of the Association . The re-
spondent should also be directed to continue to withhold recognition
from the Association, or any successor thereto, unless and until certi-
fied by us. Since Mr. Houston agrees with the Chairman to this
extent, although he would enlarge the order to require complete dis-
establishment, it will be so ordered. We will also direct the re-
spondent to cease and desist hereafter from engaging in the unfair
labor practices found.
The disestablishment of a labor organization is a drastic remedy
which , in Chairman Herzog's opinion, has been employed with in-
DETROIT EDISON COMPANY 279
sufficient discrimination in recent years.8 We ought, hereafter, to
manifest fuller appreciation of the factual differences between cases.
Whatever reasons may once have existed for directing disestablish-
ment in every case in which a violation of Section 8 (2) was found,
the Chairman doubts whether that remedy is invariably necessary
today in order to effectuate the policies of the Act. This is 1947, not
1935; in the interim employees have learned much about protecting
their own rights and making their own choices with the full facts be=
fore them. There are situations in which, because of the passage of
time, or the intervening attitude of an employer, or both, it would
appear unrealistic to assume that employees' free choice is inhibited
solely because an unaffiliated organization to which many belong had
an illicit beginning.9
It seems to the Chairman that the Board, in fixing the appropriate
remedy, has tended to apply the "fracture theory" too rigidly to all
situations. Under Section 10 (c) of the Act, remedy lies within our
reasonable discretion.Y° That discretion should be exercised reason-
ably. The Board should hesitate to destroy a labor organization that
appears to have liberated itself from employer influence for more than
3 years, merely because a particular ritual proclaimed in the fracture
cases has not been fully complied with 11 There must be a locus
penitentiae in all such situations. The Chairman believes that this
employer's recent conduct indicates that it has now reached that place
of penitence. Its employees should themselves be permitted, after the
facts have come to their attention through our order and notices posted
for a reasonable period, to decide whether the Association is fit to be
their representative.
The leading Court cases upholding Board orders of disestablish-
ment 12 do not require that the Board employ that extreme remedy in
every situation in which an organization formed in violation of Section
8 (2) remains, in ghostly aspect, on the scene. They merely hold that
the Board has the power to take that step if it believes that that "may
be the only way of wiping the slate clean." 13 Often that power must
B This view looks to the future, and is not to be construed as a suggestion that cases
already decided should be reconsidered.
6 Ezekiel 18 . 2-3.
11 See opinion of the Chairman in the first Thompson Products case, 70 N L.R. B. 13, at
16 ff.
11 The ritual is normally that described in the sentence preceding footnote 3, supra.
12 See N. L. R B. V. Southern Bell Telephone and Telegraph Co, 319 U. S. 50, Westing-
house Electric & Mfg Co. v. N L. R. B., 122 F. (2d) 657 (C C. A. 2), affirmed per curiam,
312 U S 660 ; N. L. R. B. v. Link-Belt Co, 311 U S. 584; Newport News Shipbuilding &
Dry Dock Co. v. N. L R. B., 308 U. S. 241, N L. It. B. v. Falk Corporation, 308 U S 453,
N L it. B. v. Pacific Greyhound Lines, Inc, 303 U. S. 272, N. L. R B. v. Pennsylvania
Greyhound Lines, Inc, 303 U. S. 261; Western Electric Co. v. N. L. R. B., 147 F. (2d)
519 (C. C A. 4), cert. den 324 U S 870.
13 Newport News Shipbuilding & Dry Dock Co . v. N. L. R. B., 308 U S. 241, 250
280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be fully exercised. But if we find that there are other ways, we heed
not take the ultimate step. Wise governance is that which hesitates to
use all the power at its command.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Detroit Edison Company,
Detroit, Michigan, and its officers, agents, successors, and assigns
shall :
1. Cease and desist from dominating or interfering with the ad-
ministration of Detroit Edison Employees Association, or the forma-
tion or administration of any other labor organization of its employees,
and from contributing support to Detroit Edison Employees Asso-
ciation or to any other labor organization of its employees.
2, Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Withhold all recognition from Detroit Edison Employees As-
sociation, or any successor thereto, as the representative of any of its
employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said organization
shall have been certified'by the Board as such representative.
(b) Post at its offices, buildings, plants, and other places of em-
ployment, copies of the notice attached hereto, marked "Appendix
A." 14 Copies of said notice, to be furnished by the Regional Director
for the Seventh Region, shall, after being duly signed by the respond-
ent's representative, be posted by the respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive 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;
(c) Notify the Regional Director for the Seventh Region in writ-
ing, within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
AND IT IS FURTHER ORDERED that the complaint, insofar as it alleges
that the respondent, by its officers, agents, and supervisory employees,
has engaged in a continuous course of interference, restraint, and co-
ercion of its employees in the exercise of their rights to self-organiza-
14 In the event that this order is enforced by decree of a Circuit Court of Appeals, there
shall be inserted before the words, "A DECISION AND ORDER," the surds, "Decree of
the United States Circuit Court of Appeals enforcing."
DETROIT EDISON CO\IPAN Y 281
tion, to form, join, or assist labor organizations; to bargain collectively
through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining and for other
mutual aid or protection, be, and it hereby is, dismissed.
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 dominate or interfere with the formation or ad-
ministration of any labor organization or contribute financial or
other support to it.
We will not recognize Detroit Edison Employees Association
or any successor thereto as the representative of any of our em-
ployees for the purpose of dealing with us concerning grievances,
labor disputes, wages, rates of pay, hours of employment, or
other conditions of employment, unless and until said organiza-
tion shall have been certified by the Board as such representative.
DETROIT EDIsoN COMPANY,
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.
MR. JOHN M. HOUSTON, dissenting in part :
I am unable to join with Chairman Herzog in his refusal to dis-
establish the Association, because I am convinced that the sole method
by which the Board can make available to these employees their rights
guaranteed by the Act is to remove any possibility that the Association
might become the exclusive bargaining representative for them. Such
a possibility is inherent in the proposal made by the Chairman that
the respondent merely refuse to grant recognition to the Association
until it is certified by the Board.'' Such an order in no way dissipates
the effect of long domination and support which has rendered the
Association incapable of dealing at arms length with the employer
of its membership, and its places the Association in a position to com-
pete for representative status although it has been condemned by this
' A course of conduct, incidentally, which the respondent has been careful to observe.
The Chauman, in effect, appears to order the respondent to continue what it has been
doing, although he has found that its conduct is illegal.
282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision as an organization which exists in violation of the Act. This
is so because the order contemplates that an election will be held in
which the Association will be afforded a place on the ballot and, if it
is successful, will receive legal status to act as exclusive representa-
tive by our certification. Nothing seems more futile than to hold the
Association an illegal organization, and, at the same time, to extend to
it the opportunity of serving further as the legal representative of
these employees.
The Chairman advocates that the Board not be rigid in the exercise
of its discretion under Section 10 (c) of the Act. He argues that it
should take cognizance of facts, which in this case, he finds sufficient
to call for a relaxation of the use of the customary disestablishment
order. I can find no valid reason in any of the considerations which
apparently motivate him, to warrant a deviation in the manner sug-
gested by his opinion. He adverts primarily to the fact that the re-
spondent has withheld recognition from the Association as indicating
that the employees are now free from the effect of the earlier domina-
tion. This circumstance has no real significance. In weighing the
type of remedy which should be employed in cases of this type, the
Board in the Southern Bell Telephone and Telegraph Company case,
reported in 319 U. S. 50, held, and was supported by the Supreme
Court, that even where a poll had been taken at which the dominated
organization was chosen overwhelmingly, no sufficient cause was
thereby disclosed so as to justify a lesser remedy than full disestab-
lishment. In the light of this explicit approval by the Supreme Court,
I find it difficult to accept the withholding of recognition by the re-
spondent as establishing any real ground for discarding the normal
remedy in this case.
The argument that during the last few years there has been an ab-
sence of evidence of continued domination and support, does not jus-
tify the Chairman's unwillingness to disestablish the Association. All
this proves is that the passive existence of an illegal relationship has
made impossible the institution of true collective bargaining. It does
not prove that these employees have been disabused of the effects of
the respondent's interference with the Association. Obviously the
respondent would be content to cease its active interference if, as is
now made possible, the Board might certify the Association as legiti-
mate. Of similar insubstantial effect is the notion that the respondent
has made it possible for its employees to bargain freely by dealing
with non-dominated or affiliated labor organizations. Aside from the
fact that evidence of Such dealing would be irrelevant to the issues
presented in this case, it proves only that the respondent may have
found it convenient or necessary to do so. It seems to me that the
DETROIT EDISON COMPANY 283
salutary and safe practice of dealing with non-dominated organiza-
tions should not relieve an employer of the consequences of illegal con-
duct with respect to another and dominated organization. Conse-
quently, I consider the elements on which the Chairman relies to be
of such vague materiality as to provide no persuasive basis for aban-
doning a precedent which history has proved sound.
In principle, I am inclined to agree that the Board's discretionary
power should not be used to its fullest limits in every case if real equi-
ties appear to warrant relaxation. A contrary policy could properly
be condemned as mechanistic and arbitrary. At the same time, how-
ever, I insist that when use of our full power is the only real way we
have to achieve fundamental objectives of the Act, we should not hesi-
tate to do so.
MR. JAMES J. REYNOLDS, JR., dissenting :
While I fully approve of the policy of this Board which seeks dili-
gently to protect employees against employer domination of or inter-
ference with any labor organization purporting to represent such em-
ployees, I cannot agree that the facts in this case warrant the conclu-
sion that respondent has committed any acts or engaged in a course
of conduct impairing the rights of employees as guaranteed by the
Act. To the contrary, it seems to me that the Board's Order is itself
an unwarranted invasion of the rights of these employees.
The respondent employs approximately 7500 workers. The Board's
records disclose that, prior to the filing of the complaint herein, no
previous complaint that the respondent has engaged in unfair labor
practices has ever been issued by this Board. For more than 30 years
the respondent has bargained with the International Brotherhood of
Electrical Workers with respect to some of its workers. The CIO, or
its predecessor , appeared on the scene in 1942 and, having established
itself as the majority representative of certain of respondent's em-
ployees, engaged in bargaining with the respondent and secured col-
lective bargaining agreements . At least two labor organizations not
affiliated with any national labor organization have similarly main-
tained fruitful bargaining relations with the respondent. While this
commendable picture of employer-employee relationship is not unique,
I set it forth here because of its value in considering the proper infer-
ences to be drawn froin the particular evidence relied upon by my col-
leagues. More specifically it clearly negates a possible implication
that the support and assistance given the Customers' Service Division
Club by the respondent was intended to impair employee rights guar-
anteed by the Act or was believed by the employees to be so motivated.
Apparently my colleagues find that, however commendable and
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
innocuous the respondent's sponsorship of the Club as a social organ-
ization, the respondent in its relations with the Club has violated the
Act in two major respects : i. e., first, it permitted officials of the Club
to approach it to discuss matters pertaining to the employment condi-
tions of the Club members and partially responded to such discussions
by taking affirmative action; and, second, failed to halt the members
and officials of the Club when they proceeded to reorganize the Club
into a labor organization. In the context of the other evidence in the
case, I cannot agree with those findings.
It is clear that the Club was organized merely as a social group and
there is no evidence that the respondent, at the time it proffered its
sponsorship, expected or intended that it should function for any other
purpose. From the time of the organization of the Club in May 1941
until its demise in April 1944, it is true that matters pertaining to labor
relations were discussed at Club meetings by the members. However,
the proclivity of most of our citizens to speak freely on most matters
of current interest is a fact which may be judicially noticed, and it
would seem extremely unrealistic to hold that the exercise of this in-
clination by the Club members had the effect of transforming the Club
from a social instrument to a labor organization. It would seem
equally unrealistic to require that the respondent insist that the mem-
bers of the Club not discuss matters relating to their employment with
respondent's officials. While respondent's recognition of the Club as
a bargaining agent would have entailed its taking cognizance of the
fact that the Club was a labor organization which the respondent
could not legally assist, merely to hear the Club without engaging in
actual bargaining with it for its members would seem to amount to no
more than ordinary courtesy which a reasonable person would be
expected to exercise under such circumstances.
The only evidence on the record that respondent ever dealt with
the Club as a bargaining agent lies in three isolated events. Thus, in
August 1942, the Club met with respondent and requested a 15 percent
wage increase for the Cutsomers" Service Division employees who
numbered about 425. The respondent replied in the negative to the
request, but a few weeks later advised the Club that the hourly paid
employees of this division would receive a 5 cents per hour increase
"with a few exceptions" and that salaried and office employees would
receive an approximately equivalent increase. Apparently, this in-
crease-was involved in an adjustment and increase of wages for most
of respondent's 7500 employees.
In April 1943, the Club requested that another increase be granted
and, the respondent merely replied.that "there is little likelihood of
any increases." Again in August 1943, the Club presented to the re-
DETROIT EDISON COMPANY 285
upondent a grievance of Employee Carl Kunart. Respondent advised
the interested parties of the reason for its action with respect to Kunart
and stated that it would remedy the situation when changed conditions
made it convenient to do so. In my opinion , these few isolated inci-
dents do not afford substantial evidence that the Club , the ostensible
and published purposes of which at all times were purely social in
nature, became in whole or in part a labor organization or was ever
considered as such by either the employees or the respondent . There-
fore , I fail to see that the respondent 's assistance and support of the
Club in any manner impinged upon the rights of employees guaranteed
by Section 8 (2) of the Act.
Nor do I believe that the respondent has violated the Act because
the Association ( a labor organization ) was formed by the action of
the officers and membership of the Club . There is no substantial evi-
dence, that the respondent in any manner instigated or guided the
-organization of the Association ; the Association was organized for an
entirely different purpose than that for which the Club had existed;
instead of limiting its membership to approximately 425 employees in
the Customers' Service Division as had the Club, the Association was
organized to admit a]1 of respondent 's 7500 non -supervisory employees;
and shortly after the dissolution of the Club , the Association elected
new officers , only one of whom had been an official of the Club.
Following the decision of the members of the Club to form the
Association , the respondent did not offer or give the Association any
assistance . Indeed, the respondent made it abundantly clear to the
employees that the Association could look to it for no favors. Thus,
,on May 19, 1944 , the respondent distributed to its employees a letter
stating, in part :
In general , it is a well-known and long established practice to
supply employe groups , organized as clubs, associations, and
technical societies , with facilities reasonable to the use and need
of such organizations . The purpose of such groups is generally
of a recreational , charitable , educational , or social nature. No-
tices, bulletins , publications , and publicity in connection therewith
have also at times been furnished when appropriate and reason-
able. This practice has been eminently satisfactory and there is
no reason to change it.
A review of this matter raises the question as to whether such
practice should be extended to groups of employees wishing to
meet to discuss or act among themselves upon matters incident to
collective bargaining. It is the Company 's belief that decisions
as to the appropriateness -of holding such -meetings on Company
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
property might, in some cases, unnitentionally lead to lack of
impartial treatment as between groups, or at least have the appear-
ance of such. It is the intent of the Company that there shall be
entire equality of treatment of employe groups engaged in col-
lective bargaining activities.
As has been said many times before, the Company has no desire
to influence the choice of employes in the matter of representation
or nonrepresentation for the purpose of collective bargaining or
as to any particular agent or form of agency to be used and believes
that such policy is for the best interest of both the employes and
the Company.
Furthermore, when the Association requested that the respondent
recognize it as majority representative of certain employees, the re-
spondent merely refused to do so until the Association was so certified
by the Board.
Under the circumstances of this case and with due consideration of
the respondent's labor relations background, it seems to me that the
conclusion of my colleagues that the respondent "dominated and inter-
fered with the formation and administration of the Association and
contributed support to it, in violation of Section 8 (2) of the Act," is
not supported by substantial evidence. Rather than protecting the
lights of employees to select a union of their own choice free from
employer influence, it appears that the Board's order, based on moun-
tains constructed of molehills, restrains the employees in the exercise
of this right by reinoving the Association at least temporarily from
the area of representation competition.
INTERMEDIATE REPORT
Max Rotenberg, Esq., for the Board.
Fischer, Brown, Sprague, Franklin and Ford, by Harvey A. Fischer, Esq., for
the Respondent.
Irwin J. Kasoff, Esq., for the CIO.
Mrs. Patricia Bromberg, for the Association.
STATEMENT OF THE CASE
Upon an amended charge 1 duly filed on April 16, 1946, by Utility Workers Un-
ion of America, CIO, Local 223, herein called CIO, the National Labor Relations
Board, herein called the Board, by the Regional Director for the Seventh Region
(Detroit, Michigan), issued its complaint dated April 16, 1946, against the De-
troit Edison Company, herein called the Respondent, alleging that the Respon-
dent had engaged in and was engaging in unfair labor practices within the
meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National
Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint
1 The original charge was filed on November 6, 1944 , by the U. W. O. C.
DETROIT EDISON COMPANY 287
and notice of hearing thereon were duly served on the Respondent, the CIO and
the Detroit Edison Employees Association, herein called the Association.
With respect to the unfair labor practices, the complaint alleges in substance :
(1) that the Respondent through named officers, agents and supervisors, by stated
acts, interfered with, restrained, and coerced its employees within the meaning
of Section S (1) of the Act, and (2) that the Respondent dominated and inter-
fered with the Detroit Edison Employees Association, and contributed financial
and other support to it thereby engaging in unfair labor practices within the
meaning of Section 8 (2) of the Act.
On April 30, 1946, the Respondent filed its answer in which it admits the
facts alleged by the complaint as to its corporate organization and the nature and
extent of its business, but denies that it is engaged in commerce within the mean-
ing of the Act, and that it has committed any of the alleged unfair labor prac-
tices. On May 24, 1946, the Association filed its answer denying that it has
been dominated and interfered with by the Respondent and that it has received
financial or other support from the Respondent.
Pursuant to notice, a hearing was held on May 16 through â lay 24, 1946, at
Detroit, Michigan, before the undersigned, Charles 17 Persons, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the Respondent, the
CIO, and the Association were represented by counsel. Full opportunity to be
heard, to examine and cross-examine witnesses and to introduce evidence bearing
on the issues was afforded all parties. Prior to the hearing, on April 30, 1946, the
respondent filed with the Regional Director a motion for a Bill of Particulars.
On May 6, 1946, Trial Examiner Robert N. Denham, to whom this motion had been
duly referred, issued an order granting the motion of the Respondent in part,
and denying it in part. Pursuant to this order the Boaid furnished a Bill of
Particulars. On May 14, 1946, the Respondent filed its answer to the Bill of
Particulars and motion to strike all allegations of paragraphs 5, 5a and 5b of the
complaint, as well as the Bill of Particulars, as not fulfilling Trial Examiner
Denham's order nor the requirements of the Act. This motion was referred to the
undersigned Trial Examiner at the opening of the hearing and was then denied
with the proviso that if the Respondent found at the end of the Board's pres-
entation in chief that it needed time to prepare its defense, such a motion would
be given sympathetic consideration and, further, that the Board would be directed
to recall any witnesses for further cross-examination at the request of the
Respondent. No such motion or request was later made. At the close of the
Board's and the Intervenor's presentation, the Respondent moved to strike the
complaint as to its several paragraphs and in its entirety for failure of proof.
This motion was granted so far as it referred to certain allegations regarding
Foreman Lawrence Von Tremper, but denied as to all other matters. These
motions were renewed at the close of the hearing at which time they were taken
under advisement and are now disposed of by the findings, conclusions and
recommendations contained in this Intermediate Report. At the close of the
hearing the Board moved to conform the pleadings to the proof as to minor matters.
This motion was granted without objection. At the conclusion of the presentation
of testimony, all parties waived oral argument before the undersigned. The
parties were duly advised that they had the privilege of presenting briefs for
the consideration of the Trial Examiner. The Respondent duly presented such
a brief.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
755420-48-vol 74-20
_238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 2
The Respondent, Detroit Edison Company, is a New York corporation with its
--principal office and place of business in Detroit, Michigan It is a public utility
engaged in the generation and sale of electricity to consumers located in 13 coun-
ties, covering an area of 8,000 square miles, situated in the south and east of
Michigan. The area served includes the city and suburbs of Detroit The
-Respondent also operates several steam plants which furnish heat to most of the
larger office buildings and hotels in Detroit These steam plants use annually
-approximately 2,000,000 tons of coal, all of which is shipped to the Respondent's
plants from points outside the State of Michigan The Respondent purchases
annually several million dollars worth of supplies of which a substantial part is
shipped to its plants from points outside the State of Michigan. It furnishes
electrical energy to the plants of General Motors Corporation, Chrysler Cor-
-poration, the Michigan Central Railroad, Western Union Telegraph Company and
Michigan Bell Telephone Company. The Respondent has about 7,500 employees.
The undersigned finds that the respondent is engaged in commerce within the
-meaning of the Act.
II THE ORGANIZATION INVOLVED
Customers Service Division Club, herein called Club, from May 1941 until
May 1, 1944, was an unaffiliated labor organization admitting to its membership
.employees of the Respondent in the Customers Service Division. The Detroit
Edison Employees Association, an unaffiliated organization, and the Utility
Workers of America, CIO, Local 223, are labor organizations admitting, to member-
ship employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Respondent has maintained collective bargaining agreements with the
.International Brotherhood of Electrical Workers, AFL, herein called IBEW,
for certain of its employees for over 30 years. On December 1, 1942, a hearing
was held before a Board's Trial Examiner resulting in a Decision and Order,
issued on January 8, 1943, for an election among dispatchers in the Respondent's
'Detroit line boaxd dispatching office.' IBEW won this election and was certified
,,on February .6, 1943. A collective bargaining contract was later executed. At
the time of the hearing the IBEW had two agreements with the Respondent
covering three groups of employees.
Early in 1942 the CIO began organizational activities among Respondent's
employees. Late in that year the CIO approached the Respondent claiming
majority membership in a certain department and requesting recognition. Re-
spondent's officials at the time, and uniformly thereafter, informed the CIO that
a prerequisite to collective bargaining would be certification by the Board. On
,application to.the Board's Regional Office a hearing was held late in 1942. Local
2 These findings are based on allegations in the complaint admitted by the Respondent
in its answer, and on uncontradicted testimony in the record. At the hearing the Respond-
ent admitted that the -data as to the extent of its business had not substantially changed
-since May 20, 1943. On that date in Matter of Detroit Edison Company (49 N L R B.
973, 976), the Board ;found that the Respondent was engaged in commerce within the
,,meaning of the Act
3 Matter of Detroit Edison Company, Case No. R-4616, 46 N L R. B 890
DETROIT EDISON COMPANY 289
223 was certified and the first bargaining between the CIO and the Respondent
began March 31, 1943. In 1943, 11 elections were held in vatious departments
of the Respondent. In the case of the underground employees, where a contest
developed between the IBEW and the CIO, a Board hearing was held on April 9
and 10, 1943, and an election was ordered .4 The CIO won and was duly certified
on July 21, 1943, as the exclusive bargaining representative At the time of the
-hearing in the instant proceeding, the CIO and the Respondent had executed
collective bargaining agreements covering appropriate units set up in 10 divisions
or departments in Respondent's plants
On May 24, 1945, the Customers' Accounts Employees Association petitioned
the Board for certification of representatives. A consent election was there-
after held in which the organization was successful. Collective bargaining en-
sued and at the time of the hearing in the instant proceeding a collective bar-
.gaining agreement had been executed.
Some of the operating units combined in the Respondent company have been
in existence at least since 1896. An unusual number of clubs and associations
for social, recreational, charitable and educational purposes has been developed
among its employees. About 25 were designated on the record These or-
ganizations use Respondent's sheeting places without charge. They make free
use of its interdepartmental telephone and mail facilities. Most of them have
long enjoyed substantial financial and other subventions from the Respondent.
The Edison Boat Club has a membership of approximately 375 employees each
of whom pays $6.00 annually as dues. Their club house was built by Respondent
on its property and is maintained in part by it Each year the Respondent as-
sumes any deficiency in revenues resulting from the Club's operations. In
1945 this Club received $2,850 in cash advances and $S75.40 in meals or other
expenses from the Respondent.
The Linkage Club whose membership is recruited among the substation em-
ployees of the Respondent, was first organized in 1935 Its functions were
described by F. C. Pohl as follows : °
A club of Sub-station Department employees . . . dedicated to the social
and recreational grouping together for mutual benefits . . and it carried
also a sort of a unified medium for presenting suggestions and things that
would border on grievances . . . It was a medium through which these
things could be discussed and exchanged.
The Respondent maintains a club house containing six bowling alleys and "a
semi-finished club room" for the use of members of the Linkage Club. Members
Mattel of Detroit Edison Co . Case No R-5157, 49 N L R B 975
5 Those findings are based on credited testimony of Union Relations Advisor Lyndon J.
Kaufmann and Employee Martin J. O'Dell, president of Local 223. O'Dell had been in
charge of organization among Respondent's employees since June of 1942 He listed the
10 groups
Sub-Station Department
Pioduction Depaitment
Underground Lines Department
Motor Transportation Department
Building Operations Department
Field Construction Department
Field Shops Division of Construction Depaitment
Meter Readers Division of Accounting Department
Plant Protection Division
Port Huron Gas Division
Pohl was an employee of 25 years standing and, when he testified , Assistant to the
Superintendent of Electrical Systems
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pay "nominal dues and a small bowling fee" and the Respondent annually as-
sumes any deficit in the Club's finances. In 1945 this subsidy amounted to
$200
Total cash payments paid in that year to 23 named clubs and associations and
to "Miscellaneous clubs" amounted to nearly $17,000. In addition, the Respond-
ent paid in behalf of these organizations, over $10,000 for "meals and other ex-
penses." While these organizations were not organized and maintained for
the purpose of presenting grievances to the Respondent or discussing working
conditions with it, they have frequently participated in conferences of that
nature F. C Pohl, assistant to the superintendent of the electrical system, who
had been associated with the Linkage Club since its organization, testified and
the undersigned finds, that he had "discussed conditions of employment among
sub-station employees" with various committees of the Linkage Club. After
the certification of the CIO in this department Pohl carried on similar discus-
sions with the Union. An excerpt from his testimony in point here reads:
Q And what did you discuss with them [CIO] subsequent to April, 1943?
A The same sort of things, pertaining to shift schedules, rotation, better-
ment of these same schedules, wages were very prominent among the list
of items discussed, working conditions as they related to all the ramifica-
tions of our business where manipulations can sometimes work out a better-
ment from the employees' standpoint. I saw no difference between the sub-
jects discussed after than before, except that afterwards it was clearly
recognized that it was the Union we were discussing it with.
It was Pohl's further credited testimony that "complaints," betterment of
working conditions, and wage adjustments' were informally handled with
Linkage Club representatives; that determinations reached were often reduced
to writing and published by the Respondent and that settlements made were
applicable to all employees affected.
Similarly Respondents Union Relations adviser Lynden J. Kaufmann testi-
fied, and the undersigned finds, that three or four clubs, including the Linkage
Club, whose membership was restricted to a department, had committees set
up as "a convenient means for referring requests" to management. It was
Kaufmann's further credited testimony that the Respondent "has the policy of
listening to a complaint by an individual employee through any medium." As
Kaufmann also testified, it habitually received and considered requests for
wage increases when submitted by representatives of the Clubs and Associa-
tions. Kaufmann defined Respondent's policies as indicated in the following
excerpts from his testimony :
Q. Now, if a group in about two or three year period presented two, or
three grievances and made two or three requests for a wage raise some-
what formally, with representatives from both sides present, would you
say that they had in any degree lost their status as a mere social club,
and become a union?
A I would say if they made it apparent that they wished to do that sort
of bargaining, that the Company would refuse to bargain with them un-
less they were officially so designated.
Q. Would they lose any part of their privileges in using the Company's
recreational facilities, and so forth?
4 Pohl testified , "Well, there were raises granted , yes, sir , as a result of usually pro-
longed study and conferences with [representatives of the Linkage Club]."
DETROIT EDISON COMPANY 291
A. Definitely yes, but they could still use our assembly room for dances;
they could still meet for educational [or] social purposes. We would permit
that to A. F. L. or C. I. 0 without reservation.
Q. But you would object to them using your premises for business
meetings?
A. If they reached a point where we believed it was bargaining, yes,
they could not do that.
B. The alleged domination and interference with a labor organization and con-
tribution of financial and other support to it
1. The organization and activities of the Club
The Customers' Service Division Club was organized in May of 1941. Its
membership was confined to employees of the Division which is a subordinate
organization in the Sales Department. Four employees of the Division, work-
ing in the Respondent's Grand River office, Lawrence L. LeMond, Robert
Brooks, Edward Hubbard and Lester Oliphant, in conversation with Lawrence
Von Tremper,8 at the time assistant foreman in charge of four locations on
the west side of Detroit, told him of their desire to form a club for employees
of the Division. LeMond as a Board Witness stated their purposes as follows :
Well, we talked about establishing a Club in our Division like the
Linkage or Power Club . . . The fellows wanted to have some means of
association amongst themselves for good fellowship, also to assume the
donations like for flowers for sickness and . . . the athletic part of it, the
fellows that had a tendency for the enjoyment of playing ball and basket-
ball . . . and we presumed that by putting all these desires into one basket
we could create a Club to take care of all the expenditures and things of
that nature.
After being assured that the group was "sincerely interested," Tremper
arranged that they should meet H. R. Stevenson, assistant superintendent of
the Division. Stevenson entertained them at dinner and encouraged them to
proceed with their plans. At his suggestion LeMond and Brooks used the
Respondent's telephone system on the following Monday in contacting about 80
employees in the Division. Operators on the switch board referred employees
to LeMond and Brooks who informed them of the plans for a new club and
announced a meeting for employees to be held on May 13, 1941. About 90
employees, none of whom were supervisors, attended this initial meeting.
Their first act was to vote by a large majority in favor of organizing the pro-
posed club. Committees were appointed to investigate the benefits of the A.
F. of L., the Linkage Club and the Michigan Bell Telephone Association.' Le-
Mond acted as chairman at each of three meetings for organization.
The second'meeting was held on May 20, 1941. After reports were received
from the committees who had investigated other organizations, the employees
present voted 80 to 24 in favor of forming "an organization within the Com-
pany." LeMond, as temporary chairman, was authorized to appoint an or-
ganizing committee. He selected 11 employees, each of whom represented
a craft group within the Division.
On June 4, 1941, proposed Articles of Association and Bylaws were discussed
s Tremper's name is frequently spelled Tramper in the record.
The original motion included the C I. 0. It was voted later to omit this organization.
LeMond's testimony was in error on this point.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOAR])
in a third meeting and adopted with some amendments These articles pro-
vided for a Board of Control of-11 members and a President, Vice President
and Secretary-Treasurer drawn from this Board. These officials were to "su--
pervise the affairs of the Club." Membership was limited to employees of the-
Division "continuously employed by the Customers Service Division for a
period of not less than six months" It will be noted that this definition by
its terms includes supervisory employees. Most of the supervisors in the Cus-
tomers' Service Division were dues paying members of the Club.3° They were-
entitled to all privileges of the Club except that, after a revision of the Articles
of Association adopted in 1942, they were not eligible to hold an elective office.
The Club had no initiation fee and dues were fixed at $1.00 a year. The Board
of Control held regular meetings once each month. An annual meeting of the
membership was held late in February each year. At this time the President
and Vice President were elected by vote of the membership. Special meetings
of the general membership were called by the President, by the Board of Con-
trol or on written request of 10 members for such a meeting.
The objects of this Club as stated in its Articles of Association of June 4, 1941
were:
1. To form a Club among the employees of the Customer's Service Division
of the Detroit Edison Company.
2 To maintain a flower fund.
3. To promote a bond of fellowship for mutual aid and sociability amongst
members of the Division
Clause number 3 was expanded in a revision of the Articles made in 1942 by
adding :
By organizing and supervising such activities for its members such as
athletic teams, bowling leagues, annual outings, and maintaining a fund
for expressions of sympathy to members in case of illness or death.
All meetings of the Club were held on company property without charge Elec-
tions for Board of Control members and on Club questions were frequently held[
during working time. Ballot boxes were normally open for a week to allow oppor-
tunity for all shift members to vote The Club members and officials used the-
Respondent's telephones and inter-departmental mail facilities freely in carrying
on Club business. During the first year of the Club, its secretary "boirowed
company stationery without requesting permission and without subsequent re-
placement. At the annual meetings in February 1943 and 1944, the members in
attendance were dinner guests of Superintendent Stoufter. On both occasions'
Stouffer spoke to members about matters pertaining to employment conditions.
In 1944 Vice President and Sales Manager A P. McLay was also present and
spoke. Stouffer also paid for a supper for 35 or 36 temale members of the Club in,
1944." During 1942 and 1943, Employee Ruthe Hine did typing and other
10 E C. Williams , secretary-treasurer of the Club for 3 years, named as members of the-
Club Arthur Martin, foreman at the Gratiot station , Walter Chamberlain, foreman at
the Twelfth Street station , L. Von Tremper and Arthur Phelps, foremen at the Grand
River station ; Edward Sheridan , assistant Supervisor on the B telephone board , and H R.
Stevenson , assistant superintendent . E. J Stouffer, superintendent of the Division, was
regulaily given a complimentary membership
11 This finding is based on the unassailed and credited testimony of Employee Rernan.
She was unable to given an exact date but it is clear that the incident happened while the
Club was functioning Rernan 's testimony reads :
Well, at the time Jean Headman was the girl s representative she decided they
would like to have a party for the girls, have a supper upstairs in the auditorium and
DETROIT EDISON COMPANY 293
clerical work for the Club's Secretary-Treasurer, E. C. Williams, on Respondent's
time and without cost to the Club.
Although the original purposes of the Club were those quoted above from the
Articles of Association, the officials soon found it impossible to avoid taking some
action on "wages, hours and conditions of work " The matter was stated vividly
by Williams, who served the Club as Secretary-Treasurer during its first 3 years.-
His pertinent testimony reads :
Very early in the existence of the Club we found that we had to constitute
ourselves as a sort of clearing house because anyone who had any sort of
complaint to make about his work thought that the entire membership of
the Board of Control should immediately dash up and see the boss about
it. So most of that stuff we were able, we stopped right there. Only on
things we thought of major importance did we ever try to take it further.
Such a matter of "major importance" was brought up in a special meeting of
the general membership on August 7, 1942. At this meeting a letter from
Stouffer was read which dealt with extension of work-time from a 5 to a 6 day
week and other changes in working conditions resulting from the war. Stouf-
fer's letter further stated :
If at any time your Board of Governors wishes to discuss any personal
or Company matters with any Company official, we should be glad to have
you do so.
There was general discussion at the meeting of the "pros and cons of union
affiliation", followed by a vote of confidence in the Club carried by 92 affirmative
votes to 6 in the negative. The problem of car rental was discussed with the
result that the Club decided not to advocate an increased allowance. At the
close of the meeting the Board of Control was instructed to ask the Respondent
for a 15 percent raise.'
Pursuant to this instruction the Club's Board of Control met, on August 20,
1942, with Vice President and Sales Manager Sarah M. Sheridan, T. J Peterson,
who was assistant to R T Duncan, head of the Sales Department, and Stouffer.
The Board of Control presented the Club's request for a 15 percent raise. One
of the employee representatives had procured a copy of the Respondent's last
annual report showing a payment of $3,000,000 excess profit tax He used this
showing in countering the Respondent's assertions that it could not possibly
grant the requested increase in pay.13 Whereupon he was told "that the Gov-
ernment needed that money for war purposes, and it was very unpatriotic for
[the Club representatives] to come up there and ask for part of it." The
Respondent's representatives further displayed charts purporting to show that
have some kind of a card party afterwards As I understand, the Club allowed us
forty-five dollars and Stouffer told Miss Herdman he would make up the difference if
she needed it I was the one who arranged about the supper I saw Miss Beck,
who is the head of the cafeteria, and arranged a menu and she sent the bill directly
to Mr Stouffer and we used the cash from the Club for the prizes and other expenses
attached to the party.
This statement is drawn from the minutes of the Club E C Williams and John J.
McKernan gave accounts which, allowing for the normal infirmities of memory, are sub-
stantially in accord The increase requested is variously stated as 15 percent and 15 cents
an hour
11E C Williams' testimony in point here reads. "We mentioned the fact that . . .
possibly we could use the money which was going to excess taxes better than the Company
but the Company rather vehemently disagreed to that and said it was unpatriotic."
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the.employees in the Division were the highest paid public utility employees
in their type of work. At a second meeting of the Board of Control with repre-
sentatives of the Respondent held on September 9, 1942, Sheridan stated that a
raise of 5 cents an hour, retroactive to August 31, would be given to the hourly
paid men "with a few exceptions". Approximately equivalent increases were
promised for the salaried and office employees.
On April 29, 1943, the Boai d of Control met with Stouffer. There was general
discussion of working conditions covering such matters as the 48 hour week, sen-
iority as affected by releases for more essential war work, dispatching of field
workers to unusual assignments and work in rainy weather. Discussion of wages
seems to have been confined to a statement by Stouffer that, "Since wages are
frozen there is little likelihood of any increases "
On August 17, 1943, the Board of Control again conferred with Stouffer regard-
ing a grievance presented by Employee Carl hunart. The details of this con-
ference are not material here. Kunart was present and the matter was amicably
settled.
2. The formation and activities of the Association
As noted above the question of union affiliation was discussed on August 7,
1942, at a special meeting of the Club membership. At a time, not definitely fixed
by the record but prior to September 9, 1943, a committee was appoi nted to consider
revision of the constitution. At a meeting of the Board of Control held on
January 12, 1944, it was ordered that the proposed changes in the constitution be
voted on at the ensuing February annual meeting and, if approved, become effec-
tive immediately. At this meeting the retiring president, A C. Runge, announced
that the proposed amendments had been defeated. He proceeded to discuss
"the growing amount of talk among members and employees on unionism " His
remarks met opposition and in the balloting which followed Runge was defeated
for reelection as president by J. C. Currell, a member of the Board of Control who
was prominent among employees desiring to change the organization from a
social club to a union.
During his term as Club president Runge had gone to Stouffer and "inquired
about the Club changing to an association." 14 Stouffer arranged that Runge
meet Respondent's vice president, P J. Savage. Stouffer and Kaufmann, Union
Relations Adviser for the Respondent, were present at the interview. Stouffer
gave the following credited testimony regarding it :
Well, I introduced Runge to Mr. Savage and Runge told Mr. Savage that the
club was desirous of forming an association for bargaining purposes on
working conditions and wage rates, and wanted to know if the Company
would recognize this group as such. Mr Savage informed him that they
would have to go through the regular channels of securing ci•rtihcation from
the . . . [Board] . . . before the Company would recognize them as a bar-
gaining unit. That was about the extent of the conversation.
Kaufmann's testimony in point here reads :
He [Savage] stated that the Company's position, as he remembered it-in
fact, we had no choice whether we wanted to bargain with the Association,
after they were certified by the [Board] if he understood correctly. And
then he turned to me and said, "I believe that is what you have told me on
14 This quotation is from Stouffer 's testimony.
DETROIT EDISON COMPAN I 295
similar occasions " And I said, "Yes, that is true, under the law we have
no choice." That was about the extent of my participation in it'
On March 7, 1944, at the first meeting of the Board of Control, elected on Feb-
ruary 23, 1944, John McCluskey, the newly elected secretary-treasurer, sponsored
the following motion :
That a committee be appointed to revise our Articles of Association and
By-Laws of the [Club] . . . (including a change of the name of the
organization) for the purpose of providing an organization through which the
members may select representatives of their own choosing to negotiate and
bargain collectively with the management of the Detroit Edison Company,
in respect to rates of pay, wages, hours of employment or other conditions
of employment. To provide an organization for the employees of the De-
troit Edison Company that is controlled by said employees through member-
ship in this organization.
An affirmative vote is recorded for each of the 12 Board of Control members in
attendance."
On April 18, 1944, the Board of Control held a "lengthy discussion" of the pro-
posed new Constitution and By-Laws On separate motions each article was
unanimously approved. The Board of Control then set April 27, 1944, for the
membershib at large to vote on adoption of the new Constitution and By-Laws.
Under date of April 17, 1944, over the signature of Club President Currell, a
bulletin was mailed to Club members, which stated that the purpose of the pro-
posed change in the Constitution and By-Laws was "to provide for a Company-
wide organization of. employees to make certain that in case of a request for a
vote to determine who your bargaining agent shall be, you will be given the
choice between an Independent Union, The Detroit Edison Employees Associ-
ation, or an outside union national in scope " This bulletin further presented
arguments in favor of the change and listed advantages which its proponents
felt would be gained if an independent union were formed and supported.
It is established by the record that an election was held on Respondent's
premises about April 27, 1944, to determine whether the Club members would
accept the proposed change to an organization qualified to become the statutory
representative of the employees. Ballot boxes were maintained for several days
in the plants and offices and employees frequently voted in working time." The
15 Neither Runge nor Savage was called as a witness . There is coi roboration of Stouffer's
account in the credible testimony of E C Williams who stated that Runge told hint on the
evening after his interview with Savage what had then occurred Williams' testimony
reads :
Runge told me that Savage told him that the Company had no objection to any
type of organization ; that we could become a Union or affiliate with a Union How-
ever, he told us a club the size of ours would not have much chance in competition
with larger Unions in the Company, and Mr. Runge said he laughed then and said he
couldn't, advise us, lie said, "Well, it's against the law to advise you," so he didn't
say anything more on the subject.
Employee John J. McKernan also gave testimony substantially equivalent to this quotation.
10 The committee appointed by Curiell included Herbert E. Cook, who was "to sit in as
an advisor." Cook was a special representative or staff man , working under Stouffer.
His duties were "to coordinate electrical ordinances or laws within different municipali-
ties" served by the Respondent. He was a dues paying member of the Club and did not
supervise the work of any employee . Under these conditions , the undersigned finds no
merit in the Board ' s contention that his service on this committee involved the Respondent
in the Club's affairs.
"It is clear that no Association election subsequent to April 27 , 1944, was held on
Respondent 's premises.
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Club members voted 263 to 17 to approve the plan for the formation of the Associa-
tion.18 On May 5, Currell announced the result to the membership. A day
earlier he had written Stouffer stating that the Club had been changed into
an association capable of fqnctioning as a statutory representative. On May 5,
Stouffer acknowledged receipt of Currell's letter and stated that, together with
a copy of his own answer, it had been forwarded to Savage. The amendments,
as approved by the membership vote of April 27, 1944, changed the name of the
Club to the Detroit Edison Employees Association and stated the purposes of the
Association to be :
1 To provide an organization through which the members may select
representatives of their own choosing, to negotiate and bargain collectively
with the management of the Detroit Edison Company with respect to rates
of pay, wages, remunerations, hours of employment and other conditions of
employment.
2. To promote a bond of fellowship for mutual aid and sociability among
members, mutual aid not to include payment of sick and death benefits
3 To provide an organization for the employees of the Detroit Edison
Company that is controlled by said employees through membership in this
organization 19
Both in Currell's letter to Stouffer and in the application for registration with
The Michigan Corporation and Securities Commission, it is stated that the effective
date for the change from Club to Association is May 1, 1944. Although the filing
date with this State agency was June 29, 1944, and, as Respondent contends, this
is the effective date under State law, the undersigned after consideration of the
record finds that, for Board purposes, the change is complete and effective on
proper counting and reporting of the affirmative vote of the membership. On
this basis May 1, 1944, is accepted as the transition date. The new constitution
provides for an ambitious organization coextensive with the Respondent's busi-
ness. It retained the requirement of six month employment as prerequisite for
membership but stated that "no confirmed or recognized supervisors might become
a member" and further provided that a member when promoted to a supervisory
position must relinquish his membership. A Board of Control was to be selected
with a representative from each of nine Divisions resulting from a grouping of
-crafts or divisions in the Respondent's organization Provision was made for
annual elections of officers including a president, 2 vice presidents, a secretary
and a treasurer. The president and vice presidents were to be elected by the
Board of Control from its own membership; the secretary and the treasurer by
that body from the membership at large. Dues were set at $1.00 per month for
the first 3 months and 50 cents per month thereafter.
The Association promptly arranged to lease space in a Detroit office building.
The lease therefore was dated May 26, 1944. However, temporary quarters, as the
Association's paid telephone bill shows, had been secured on May 2, 1944. All
meetings of the Association after May 10, 1944, were held off Respondent's
property. Nothing in the record suggests that the Association made any use of
Respondent's facilities after May 10, 1944
The Association assumed all liabilities of the Club and took over its bank
18 There were approximately 425 employees in the Customers' Service Division It will
be remembered that membership in the Club was restricted to employees with 6 months'
service.
19 Quoted fiom the Association's application for registration as a nonprofit corporation.
DETROIT EDISON COMPANY 297
account and personal property. The officers of the Club elected in the February
3944 meeting continued to function until new elections were held on June 30, 1944.
At that time, four members of a Department Committee were selected. Currell
testified, and the undersigned finds, that he was elected as president of the
Association at this time. Two vice presidents, a secretary and a treasurer were
also elected. None of these officials, except Currell, had been elected in February
1944, as Club Officers. However, one of the Department Committee members,
John Dent, had been vice president of the Club from February 1943 to February
1944.
The Association entered on a vigorous campaign for membership headed by its
newly elected officials. On October 13, 1944, Currell wrote to the Respondent
claiming that the Association had a majority membership in The Customers'
Service Division and in The Eastern Michigan Division and requesting recognition
as "exclusive bargaining agent" for designated employees in these Divisions
Vice-president Savage replied under date of October 16, 1944, advising that, in
his opinion, the unit proposed was "somewhat too broad" and stating further;
In accordance with the procedure generally followed when requests for
representation are made, it seems appropriate that you place this matter
before the Detroit Office of the [Board] for a determination as to whether or
not the suggested unit is a proper one for collective bargaining, and for the
holding of an election to determine whether or not the employees of the
ultimately approved unit desire your organization as their exclusive
representative.
As noted above, the Club's Board of Control had discussed the problem of car
rentals'' Shortly after the formation of the Association, on May 10, 1944, on
motion in a Board of Control meeting, a committee consisting of John Runge,
Gerry E. Stitt, and John J. McKernan was appointed to see Stouffer "regarding
a blanket raise for the Department and a clarification of rumors in regard to
the car policy." President Currell and Secretary McCiuskey were to accompany
the committee as members ex officio It was Currell's credited testimony that
this committee never functioned. On May 23, 1944, in a Board of Control meeting,
a second committee consisting of Stitt, as chairman, J. Rivers, S. Covey, Duncan
Preston and John Mast, was appointed "to follow up on the car policy." The
committee wag instructed "to compile figures to present to the management."
This committee seemingly did not function.beyond reporting to a meeting of the
Board of Control on June 6, 1944. At that time a new committee consisting of
Stitt as chairman, Preston and Mast was appointed, with instructions to present
to the management "a rate of $45.00 a month, based on a 5-day week with payment
for car for all additional time."
The Respondent's proposed change in car rentals was formally stated, on May
24, 1944, over the signature of President and General Manager James W. Parker.
Most of the approximately 1060 employee cars used on company business had
been paid a fiat rate The respondent proposed to substitute a plan based on a
,mileage rate. Most of the employees affected in the Customers Service Division,
said to number 175, found that the proposed change would reduce the amount
received for the use of their cars. It is evident that they felt this to be a sub-
stantial grievance?'
20 McKernan testified " The Board of Control was constantly discussing the car question.
At every meeting practically the car question was up."
21 McKernan gave credited testimony reading,
well, the grievance was that the Company . . . was going to put the cars
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stitt, Preston and Mast approached Stouffer and told him they "had been ap-
pointed by the [Association] to come down and object to the mileage basis for
our car rental." Mast's credited testimony as to Stouffer's reply reads,
Mr Stouffer told us that he could do nothing for us, because the [Associa-
tion] had no right to bargain but if we could come down there just as em-
ployees, of the Customers' Service Division, he would get us another inter-
view and he would have Mr. McLay [Vice-President and Sales Manager] at
the meeting.
Accordingly the committee presented statements to "The Management" under
date of June 14 and June 17, 1944, which were signed "Committee on Auto Rental
Contract, Customers Service Division." The details of this interchange are
not material here. McLay received the matters presented in friendly spirit. His
written replies addressed to "Messrs. Stitt, Preston and Mast," are careful to
designate them as a committee from the Customers' Service Division rather than
from the Association.
On June 26, 1944, McLay, Stouffer and Duncan met with a group of employees
in the Customers' Service Division. The full Board of Control of the Associa-
tion was present 22 Employee Henry Crossman, who was not a member of the
Board of Control, also attended. Crossman had been somewhat prominent in the
affairs of the Club but had never been an official of that organization After dis-
cussion of the data presented by Stitt's committee, "paragraph by paragraph," it
was agreed that a ruling should be secured from the War Labor Board as to
whether the adjustment of car rentals came within that Board's jurisdiction as
an employment question. Pending the receipt of this ruling, the Respondent's
representatives promised that no change would be made in the car rental allow-
ance. The War Labor' Board found, on October 20, 1944, that such adjustment
did not require prior application to and approval by that Board. On December
18, 1944, the Respondent through President Parker advised all employee owners
of automobiles used in company service that, with minor exceptions, the car
rental contracts in effect on November 26, 1944, would be continued until "govern-
mental restrictions on Company mileage are substantially removed"
General Conclusions
The Board raises four essential questions with reference to the status of the
Association and its eligibility to serve as a statutory representative :
1. Whether the Club's activities in dealing with the respondent "concerning
grievances, labor disputes, wages, rates of pay, hours of employment, or con-
ditions of work," were sufficient to constitute it a labor organization?
2. Whether, if so, the Respondent has dominated or interfered with the Club,
or contributed financial or other support to it, to an extent which brought it
within the condemnation of Section 8 (2) of the Act?
3. Whether the Association was a successor organization of the Club?
4. Whether, if so, the Association was by that fact, or because of favors
on a mileage basis, and the men on the outside thought that this would mean a cut
for them in their car rental.
Similarly Correll testified,
Well, there was a new plan that was brought forward by the Company whereby
cars were to go on a mileage basis and our fellows didn't like that type of plan
22 The Board still consisted of the 11 members elected at the annual meeting of the Club
on February 23, 1944. Duncan in his testimony testified that a second meeting of man-
agement representatives with an employee group was held within a month of the first
conference No other witness referred to such a meeting and the Association minutes
have no reference to it.
DETROIT EDISON COMPANY 299
directly received from the Respondent, rendered incapable of serving the em-
ployees as their statutory representative?
1. The Act defines a labor organization to mean "any organization of any kind,
or any agency or employee representation committee or plan, in which employees
participate and which exists for the purpose, in whole or in part, of dealing with
employees concerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of work." With the language of this broadly phrased
definition in mind, the answer to the first query must clearly be in the affirmative.
While perusal of the minutes of the Club indicates that its essential purposes were
charitable, social, athletic, educational and recreational and that the major part
of its finances and of the activities of its officials and members were expended on
these matters, still in presenting Employee Punart'a grievance, in discussing
various matters pertaining to working conditions with representatives of manage-
ment, and in the presentation of a request for a general wage increase through its
duly constituted officials, the Club plainly dealt with the Respondent concerning
grievances , wages and conditions of work.
2. Answering the second question raised by the Board presents more difficulty.
Unquestionably the Club had received substantial "financial or other support"
from the Respondent. There was also a measure of interference with its for-
mation. However, both this interference and the support rendered by the
Respondent was plainly with intent to aid a social organization similar in char-
acter to over 20 other clubs among the Respondent's employees. With support
to such organizations, the Board and its agents have no concern. The record
in this proceeding is barren of evidence or suggestion that the Respondent's
subventions to the Club were made with intent to affect, or prevent, its activity as
a labor organization. It is noted that both in the period when the Club, and when
the Association was active, there was no other organization which claimed
majority representation among the employees of the Customers' Service Division.
Further, the Respondent was justified in conferring with the Club, on all
grievances which its members wished to present, under the proviso attached to
Section 9 of the Act, which declares "That any individual employee or a group of
employees shall have the right at any time to present grievances to their em-
ployer." The request for a general increase in wages presented by the Club's
Board of Control in August 1942 covered the employees in the Customers' Service
Division. However, representatives of the Respondent in receiving the Club's
officials and considering their demand cannot be said to have entered upon
negotiations with them. After independent deliberations the Respondent's
officials rendered a decision regarded by both parties as a final answer. The
Respondent did no more than dispose of a grievance as to wages. This was
plainly legitimate action under the proviso quoted. Nothing in the record
supports a finding that the Respondent dominated the formation or the admin-
istration of the Club. At most it rendered financial and other support to its
social and recreational activities. In this state of the record the undersigned
finds that no taint of illegality under the Act was proven as to the Club.
3. It is clear that the Association was a successor organization to the Club.
The reorganization was effected by officials selected by the Club members.
The assets of the Club, including its bank account, passed directly to the Asso-
ciation. The officials of the Club continued to direct the Association's affairs
for a period of 2 months until June 30, 1944, and, while the employees were solic-
ited to sign new applications for membership in the Association, there was no
"line of fracture or break in continuity" between Club and Association business.
The undersigned finds that the Association was a successor to the Club.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. The fourth question is crucial in reaching a decision in the instant proceed-
ing. Is the Association disqualified as a statutory representative because it is a
successor of the Club, which, while acting as a labor organization, received sub-
stantial subventions from the Respondent and its officials? In answering this
question account must be taken of the background The Club operated as did
over 20 other organizations among Respondent's employees. Many of these clubs
incidentally handled matters pertaining to working conditions. Most of them
received substantial "financial or other support" from the Respondent. How-
ever, there is no suggestion that .their handling of labor matters was affected
thereby, nor yet that the Respondent so intended. When a qualified statutory
representative appeared and was approved by the Board both these Clubs and
the Respondent accepted the new situation in loyal adherence to the provisions
of the Act In the case of the Customers' Accounts Employees Association, this
social club was transformed into a labor organization and became the recognized
statutory representative. This was done without change of name or break in the
continuity of its operations. That organization enjoyed the approbation of the
Board's agents in the Detroit Regional Office. Its Board of Directors adopted
a new constitution on December 6, 1943, which was approved by the membership
on January 18, 1944. The organization petitioned the Board for Certification of
Representatives on May 24, 1945. A consent election was held under Board
auspices on or about July 16, 1945. Thereafter the Board's Regional Director in
the Seventh Region determined that the Customers' Accounts Employees Associa-
tion was successful. It thereupon was recognized as the exclusive bargaining
agent for "all employees of the Customers' Accounts Division of the Respondent."
The undersigned finds in this action by the Board's agents a significant
precedent affecting the instant proceedings. Since the Association in the Cus-
tomers' Accounts Division was in every respect analogous to the Club, both em-
ployees and Respondent might reasonably anticipate that the Board would accord
the Club and its successor, the Association, substantially similar treatment to
that given the Customers' Accounts Division Association
The record shows that the members of the Association made every reasonable
effort to divest themselves of the indicia of a dominated organization The name
of their organization was changed ; their constitution and by-laws were entirely
rewritten ; the basis of membership was enlarged ; the plan of organization was
radically altered ; supervisory employees were excluded from membership, dues
were substantially increased; meetings were, held in Association quarters and
all use of Respondent's facilities was sedulously avoided. The Respondent was
similarly careful to give the new organization no favors and to abstain from
granting it any recognition pending certification by the Board. On May 19, 1944,
it carefully stated its intentions to remain neutral in all matters affecting labor
organizations and publicized its policies directly to the indivdual employees.
While it dealt with a committee named by the Association, such action is clearly
within the proviso attached to Section 9 of the Act. "Any group at any time"
is there authorized to present the grievance arising when the employees. members
of the Association found, as the committee stated, that 137 of 175 employee car
owners in the Customers' Service Division would be adversely affected by the
proposed change in the basis of car rentals No fault, under the Act, can be
ascribed either to the Association or to the Respondent from this occurrence.
This is especially true since there was at the time no recognized statutory rep-
resent:iti.e for employees in the Customers' Service Division
In sum, the final query resolves itself into balancing consideration of the pos-
sible technical disqualification attached to the Association as a successor organi-
DETROIT EDISON COMPANY 301
zation to the Club, which had incidental labor organizational activities and re-
ceived subventions from the Respondent as a social organization, against the
Association's character as a labor organization arising after full and free dis-
cussion among the employees, steadfastly supported by its members and plainly
their choice as bargaining lepresentative.2i The undersigned finds, after consid-
eration of the full record, that the Association may not be disqualified on such
tenuous and technical grounds. Such a result would run counter to the "full
freedom of association, self-organization and designation of representatives of
their own choosing" which is the basis for the policy of the United States im-
plemented by the Act. It is the duty of the Board and its agents to maintain
such full freedom of action by employees.24
After consideration of the full record the undersigned concludes and finds that
the Association is an untrammeled and- free bargaining agent and is not dis-
qualified as a statutory representative of Respondent's employees by the circum-
stances disclosed as to its origin, its activities nor by any proven relationship
with the Respondent. He, therefore, finds no merit in this contention of the
Board and will recommend that so much of the complaint as alleges that the
Respondent "dominated and interfered with the formation and administration
of the Association and contributed financial and other support to the Associa-
tion", be dismissed.
C. Alleged interference, restraint, and coercion.
Employee John J. McKernan testified that at a conference, between repre-
sentatives of the Respondent and of employees in the Customers' Service Division
about car rentals, held on June 26, 1944,n he and Employee Gerry Stitt were
seated across the conference table from E. J Stouffer, Superintendent of the
Division and Roy T. Duncan, conin^ercial superintendent in the Sales Department
McKernan testified that Stitt warned Duncan "that if there didn't something
come out of this meeting that a number of the men would join one of the other
International Unions." McKernan's further testimony as to Duncan's reply reads
as follows :
Mr Duncan's reply was that he had been out through the districts the
pievious week and that the people these had been having a lot of pressure
thrown on them to join the C. I 0. and they came to him to find out, if
possible, if there was anything he could do about this pressure that was
being put on them, and Mr Duncan told us that he told them that they could
join the [Association].
It was McKernan's testimony that general discussion was renewed and that neither
lie nor Stitt made any reply to Duncan's observation.
n Cf. Matter of Providence Gas Co., 41 N. L R. B. 1121, 1143-4, where the Board said
we conclude that the choice of the Association resulted from a free exercise of
the employees' right to self organization without either direct interference by the
respondent or vestigial interference inherent in, or continuing from, earlier company
domination.
24 Cf Matter of Commonwealth Plaster Co ., 34 N L . R B 1129, 1145 The Board found
evidence of interference with an independent union but states
We nevertheless are convinced that the potency of the desire on the part of the
majority of the employees for an independent labor organization such as the Council
transcended the effect of [these acts of interference].
23McKernan first testified that the incident occurred in Maich 1944 When shown
the minutes of the Association meeting, dated May 10, 1944, at which the committee was
appointed , he changed this to May 1944 Documentaiy evidence establishes the date
stated above.
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Duncan was called as a witness by the Respondent and flatly denied that he
had ever advised any employee of the Respondent to join the Association When
asked specifically about the statements ascribed to him by McKernan, Duncan
replied that he had "no recollection of any such statement as that." In his
testimony, he gave the following explanatory statement :
Well, during this period of car rentals there were a, lot of talk about
unionization. I had heard it, like everybody else. I have had lots of em-
ployees who would ask me in a kidding way about it and maybe I would say,
`why don't you join?' or something like that. I never tried to influence any-
body about joining. I have no recollection about ever talking seriously with
anybody about union matters.
Although Stouffer was examined at length as a Board witness, he was not
questioned as to this incident. Stitt was called as a witness for the Board but
was not asked about this conversation. Under these circumstances, after con-
sideration of the full record and of the demeanor of the witnesses, the under-
signed is convinced and finds that the statement ascribed to Duncan, if credited,
would not be sufficient to warrant a finding of a violation of Section 8 (1) of the
Act's
On February 23, 1945, Ronald E. Greene, construction engineer for the Re-
spondent, instructed his assistant, Simon Roth, supervisory engineer, to tell the
supervisors of the Construction Engineering Department'' to assemble the em-
ployees in the Customers' Service Division auditorium at 3: 30 p. in Since clos-
ing time for these employees was 4: 30 or 4: 45 it is clear that the meeting was
held during working time. Approximately 160 employees, practically the full
number, attended the meeting which was addressed by Greene A CIO meeting
for these same employees, as Greene admitting knowing before he called them
together, had been set for 5: 30 that afternoon. Greene testified that he had
spoken to Respondent's president, James W. Parker, prior to the meeting telling
him that an attempt was being made to organize the group and that he thought
he "should talk to members of that group and tell them [his] belief." He also
told Parker "in a general way" what lie proposed to say to the employees. Par-
ker fully corroborated this testimony by Greene and stated further that he "made
no objection" either to the calling of the meeting or to the content of the proposed
speech.
Employee William K Wilkinson, who was active in CIO organizational activi-
ties, heard of the meeting and that "Greene would address the group in regard
to union matters." Wilkinson arranged to leave his woi k and attend He
stationed himself "back of the curtain" and took longhand notes of Greene's
speech. His original notes are a part of the records in this proceeding. Greene
gave full testimony as to what he said. He spoke from notes and no record of
his speech was made. The following summary of Greene's address has been
drawn from his testimony somewhat annotated and abridged :
I opened the meeting by stating that I wanted to talk to them about unions
I said I knew at least one union, the CIO, was soliciting their membership.
I did not know what others were, and I told them that the meeting was in no
way to be considered as pressure. I told them that was not Company
policy, to exert pressure in such matters, and fuitheriiloie, I knew it wasn't
=b Matter of Jasper Wood Products Co. Inc, 63 N. L. R. B 333.
21 This Department had been known as the Drafting and Engineering Bureau
DETROIT EDISON COMPANY
permitted. I did say that I believed I could state my opinions and I was
going to do so.
I [told] them it wasn't mandatory or it wasn't necessary for anyone to
belong to any union to work for the Company. I said that when we did have
contracts that at least up to date the type . . . was the maintenance of
membership, which means that a man who joined the union had to remain
in good standing as a condition of employment for the period of one year.
it did not mean that everybody had to belong to the union
I then described to them the system that we were working under in the
[Department], the supervisory system. I told them that there had to be
liaison between Management and the employees First, the Management
orders had to be transmitted down and furthermore there had to be a means
by which employees could make complaints, suggestions, to the Management.
I said the Company prepared that system and was doing its best to make it
work. The Company was conducting classes, courses, for the instruction of
supervisors and intended to do more of that in the future.
If, however, the employees decided that that type of system did not give
them what they wanted, they were free to choose some form of organization.
"Open to you are these; First you have one of the gational unions, the CIO
or the AFL, which have units in the Company. Second, you have the possi-
bility of the [Association]" and I made it very clear that that organization
was not Company sponsored. As far as I knew they had not been certified
Third, you have an independent Draftsmen Union of which there are units'
in 2 local concerns.
If you decided to choose any of them it seems to me there'are certain'
fundamental things to be considered. First, are they, the people you are
going to associate with your kind of people ; 1 e engineers and draftsmen?
Were the officers qualified by educational background and experience to
handle your affairs? Obviously they should decide whether they were
qualified to handle their affairs.
If they did join a Union they would no longer be able to act as individuals
and conduct their own affairs as individuals. There would bean attempt to
standardize working conditions. In my belief our working conditions were
excellent and would not be bettered by legislation. In my opinion, further-
more, some form of seniority would be set up. As an individual I would'i
certainly prefer to progress in accordance with my own merits
Obviously, the decision is in your own hands. I will be glad to answer
any question.28
Wilkinson's notes, in general, corroborate Greene's testimony. They reflect
that Greene said : "I have had considerable contact with unions lately and I
believe it creates natural antagonism between management and employee," and
again, "Organization will tend to lessen the close relationship between the em-
ployee and the Management and set up a barrier between them. It would be more
unfortunate in this group than others " These notes further indicate that Greene
disavowed any intent to put pressure on the employees or coerce their decision
and, that in concluding, he expressed willingness to abide by their decision.
The degree of divergence between Greene's and Wilkinson's statements is not
great and is easily explicable when the conditions under which the two accounts
28 Greene testified that, while he did not remember the questions asked, he was sure
that he did not add to his speech in the answeis given
755420-48-vol. 74-21
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARI>
were compiled is borne in mind. Accepting arguendo the worst construction
which the record justifies placing on Greene's remarks the undersigned is per-
suaded and finds that they do not transcend limits which the Board and the Courts
find permissable under the doctrine of freedom of speech. This finding is con-
firmed on consideration of the attendant circumstances. The Respondent had
manifested no anti-union attitude and made no threats of economic reprisals.
The employees may be inferred to have had knowledge of the contractual relations
existing with both AFL and CIO unions. The Respondent had informed each of
the employees, asset forth hereinafter, in carefully phrased memoranda, of its
intention not to interfere in union matters. This record reflects no anti-union
actions or utterances which were inspired or approved by the Respondent. In this
state of the record the undersigned finds no merit in the contention of the Board
that Greene's address to the employees of his department was in derogation of
Section 8 (1) of the Act.°
The Board further contends that the Respondent allowed the Association to
conduct its affairs in- working time, freely using Respondent's facilities, while
denying CIO protagonists similar freedom of action. The record reflects that
Employee Henrietta Kernan, a switchboard operator, had been instructed early
in 1945 by her supervisor, Harry Smith, that she should not discuss unions, speci-
fying the CIO, over the telephone on company time and property. At approxi-
mately the same time Smith told Kernan that she had been making a great many
mistakes in her work and asked her if her CIO affiliations could be interfering
with her work. Kernan replied that she did not think so.
Miss Kernan freely admitted that she had discussed unionization over the
Respondent's phone lines with mein in the field from the time she went on the
switchboard late in 1943, until taken to task by Smith. Her credited testimony
pertinent in that connection reads,
I discussed [unionization] with everyone,-the person sitting next to me,
the outsider over the telephone ; the dispatchers discussed it.
We discussed the merits of the association, whether or not the association
would ever become a certified bargaining agent. We discussed the differ-
ence between the association and the CIO, whether or not the AFL was really
a utility organization or whether or not it was a Trade union.
Kernan admitted that Smith's admonition was fully justified. It was her
credited testimony that she told him, "I thought that was perfectly all right,
perfectly fair."
Kernan further testified that she had observed Employee Wanda Sheehy, a
clerk in the Customers' Service Division, on two occasions after August 1944
typing on letter heads of the Association during working time. Kernan had
:i See Matter of Ebco Manufacturing Co , 67 N L. R. B. 210 (April 10, 1946) The Board
found that a letter, similar in character to Greene's speech, in the absence of other co-
ercive conduct, was not violative of the Act. In the Matter of Oval Wood Dish Corp
62 N L. R. B 1129, 1138, (July 4, 1945) The Board said :
By . . . statements, notices, letters, and speeches, the respondent expressed a
preference to deal directly with its employees rather than through an outside
organization. However, the respondent made no threat of any sort and coupled
its statement of preference with clear expressions assuring the employees that the
respondent would not resort to reprisal to retaliate against any exercise of any right
guaranteed in the Act Under the doctrine of the American Tube Bending case,
such conduct falls within the constitutional guarantee of free speech and is not
a violation of the Act.
Cf American Tube Bending Co. V. N. L. R. B., 134 F. (2d) 993 (Cl. C. 4. 2), cert.
denied. 320 U. S. 768. N. L. R. B. v. Virginia Electric and Power Co., 314 U. S. 469.
DETROIT EDISON COMPANY 305
no knowledge of the matter typed on either occasion. Sheehy was the regular
stenographer and clerk for the Association. However, Currell testified that he
was sure Sheehy had done no Association work on company premises. The
identification of Association letterheads by Kernan is doubtful since she testified
that the Association emblem appeared thereon whereas the official letterheads
did not carry it. In any case the mere fact that Sheehy had such letterheads in
her machine cannot be held to constitute proof that she was engaged in Association,
business.
A former employee, Eugene Stanton, as a Board witness, testified that, while•
employed by the Respondent, sometime in 1944, Employee Earl Hoetcher had'
solicited him to join the Association saying, "Why not join?" and "You'll be,
forced to join." Stanton at the time was chief steward for the CIO in the,
Customers' Service Division Stanton testified that the incident occurred in,
the presence of Foreman Arthur Martin, of the Gratiot office. Hoetcher was'
working at the time but Stanton was awaiting an assignment. Martin took no
part in the conversation with Hoetcher. However, as Stanton also testified,
Martin at a time, not definitely fixed in the record, but stated to have been in
1944, told him that it was against company rules to solicit (CIO) membership
on company time or company premises.
Employee Martin J. O'Dell, president of CIO Local 223, testified that in early
May 1944, together with Edward T. Shedlock, an International Representative
of the CIO, he interviewed Ronald E. Greene, construction engineer and Kaufmann,
Union relations adviser for the Respondent, relative to posting CIO matters on
bulletin boards in the plant. Greene and Kaufmann informed the CIO officials
that they would check into the ]natter. Later O'Dell was informed that CIO
"meeting notices were controversial" and could only be posted in departments
where the CIO was recognized as the statutory representative.a0 O'Dell pointed
out that Association notices were permitted on Respondent's bulletin boards but
made no further complaints.31
Wilkinson, as he testified, made a similar request of Kaufmann "early in 1944"
complaining that Association literature and notices were posted on company
premises while the CIO was refused like privileges. Kaufmann pointed out that
the Association was posting notices pertaining to social affairs and suggested that
if CIO meetings were social affairs notices might be posted. Wilkinson replied
flippantly, "that was a thought." Later Wilkinson remonstrated to Paul Herd-
man, superintendent of building operations, that notices of Association's dances
were posted on the building pillars. Herdman replied, as had Kaufmann, that
all organizations were allowed to post notices regarding social affairs Wilkinson
agreed that the CIO was not discriminated against in the use of recreational
and social facilities 82
The -Respondent placed in evidence its Company Memorandum No. 105 issued
on May 19, 1944, over the signature of President and General Manager Parker.
This memorandmn was published in the June issue of Respondent's monthly
magazine, Synchroscope, which is regularly mailed to every employee. The
memorandum deals generally with the Respondent's policies, "regarding the
S0 O'Dell testified that all CIO contracts negotiated with the Respondent provided for
the posting of CIO notices on Respondent's bulletin boards
11 Kaufmann testified that he had had several conferences with O'Dell and Shedlock Of
O'Dell's testimony he stated, "I am not able to affirm nor deny it, but I believe his testi-
mony was accurate."
92 These findings rely on credited testimony by Wilkinson. It was not denied by
Kaufmann. Herdman was not called as a witness.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
use by employee groups of company property, facilities, and services." The
essential paragraphs read :
In general, it is a well-known and long-established practice to supply em-
ploye groups, organized as clubs, associations, and technical societies, with
facilities reasonable to the use and need of such organizations. The purpose
of such groups is generally of a recreational, charitable, educational, or
social nature Notices, bulletins, publications, and publicity in connection
therewith have also at times been furnished when appropriate and reason-
able This practice has been eminently satisfactory and there is no reason
to change it.
A review of this matter raises the question as to whether such practice
should be extended to groups of employes wishing to meet to discuss or act
among themselves upon matters incident to collective bargaining. It is the
Company's belief that decisions as to the appropriateness of holding such
meeting on Company property might in some cases, unintentionally lead to
lack of impartial treatment as between groups, or at least have the appearance
of such. It is the intent of the Company that there shall be entire equality
of treatment of employe groups engaged in collective bargaining activities.
As has been said many times before, the Company has no desire to influence
the choice of employes in the matter of representation or nonrepresentation
for the purpose of collective bargaining or as to any particular agent or form
of agency to be used and believes that such policy is for the best interest of
both the employes and the Company.
Accordingly, no use of the Company's premises shall be approved for the
purpose of effecting organization for collective bargaining, Union business
meetings, or other related activities, likewise, printing, publication and simi-
lar services in connection with such activities will not be permitted. The
Company withholds these services reluctantly, especially since the time and
expense involved are relatively minor. However, there is no other choice in
the matter, because in extending these facilities, the appearance of special
benefits or the endorsement of one organization or another might be unin-
tentionally created.
This policy does not prohibit the granting of a reasonable use of bulletin
boards for the posting of notices involving no controversial matter, as for
instance meeting notices. Such privileges have already been extended to all
organizations. Also, permission may, upon application, be given to any
employe organization or group, when reasonable and appropriate, to use
the Company's property, facilities, or services for such purposes as are
purely educational, recreational, charitable, or social.
The Respondent further placed in evidence a letter dated August 23, 1941,
from Alex Dow, who had retired as president in the preceding year and had
become Chairman of the Executive Committee of the Board of Directors. Dow
wrote to "All Company Employees " Under date of May, 1944, President Parker
also published a statement "for the Guidance of Department Heads, Foremen
and other Supervisors on the Company's Labor Policy " These documents are
too lengthy for inclusion here. The general character of Parker's statement,
which reached all employees through publication in Respondent's monthly publi-
cation, the Synchroscope, may be indicated by brief excerpts.
Mr. Dow said many times that any employee or group of employees was
entitled to a fair hearing and that if they wanted to bring some one along
to do their talking they would be accorded similarly fair hearing. That
DETROIT EDISON COMPANY 307
is also the company's present attitude. We will deal willingly with organi-
zations, with informal groups or with individual employees.
Collective bargaining has brought about some changes in our practices,
notably a greater exactness and a more meticulous uniformity in the treat-
ment of individual employes within each group. That is in fulfillment of
a desire of the employes.
We shall be careful to cooperate in the principle of collective bargaining,
to which we have subscribed, by avoiding any act that might undermine or
discredit those employes who have been selected to deal with us. We
shall, however, resist unfairness and combat attempts to create a break
in the friendship and confidence between the Company and its employes.
In appraising the Board's contention that the Respondent favored the Associa-
tion and discriminated against the CIO in allowing use of its facilities, it is
necessary to understand the conditions under which the employees work. Many
of them in the Customers' Service Division do their work on the customer's
premises. They work there without supervision. In receiving assignments and
traveling thereto, their time is much broken up. Certain employees work as
emergency standby men. They are on call and have slight or no prescribed
duties while awaiting such emergency calls. The record reflects that they are
customarily allowed freedom of action and discussion while in such standby
status Similarly in the use of telephone facilities the employees have exercised
great freedom in discussing both personal affairs and labor organizational mat-
ters. On this subject certain testimony by Kaufmann is helpful. He was asked
about Respondent's practice in allowing use of intercommunication facilities and
answered,
On that . . . the Company has practically no means of control We know ;
we cannot prove it, but we know that some telephones are used for talk
among the men which is pretty largely Union business. We have no way of
controlling that. We have an understanding, and it is so stipulated in the
contracts, that Union affairs will not be discussed on Company time and prop-
erty to the extent that work is interfered with.
Now, we believe that is about as far as we can go. If an organization
comes and says, We want to use the interdepartmental mailing system for
[the union] we say no, but, if on the other hand, they would surreptitiously
slide on that into the inter-department mailing system, we couldn't tell be-
cause employees are working on Company business there and we have no
way of knowing, without inspecting the mail. We have not felt any of the
Company facilities have been abused, however.
Q If you did find such abuses, what would you do?
A We would stop it We have occasionally said to the C I. 0. that they
were making a little free with Company time, and they have taken it in
very good spirit and said they would look into it and see that it is discon-
tinued. It is the Company's policy to do it, so that there are no favors shown
to any party.
The undersigned, after considering the full record, finds the evidence adduced
by the Board as to discriminatory treatment favorable to the Association unsub-
stantial and not convincing. It is clear that the Club, in common with other
social and recreational organizations, made free use of Respondent's facilities
and frequently carried on its activities in working time. The record convinces
the undersigned, and he finds, that with the organization of the Association, both
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that union and the Respondent made sincere and effective efforts to follow the
policy laid down in Respondent's memorandum of May 19, 1944. It is clearly
reflected by the record that Respondent's supervisors had been effectively in-
structed to abstain from interference in union matters. Thus, Foreman
Tremper's credited testimony regarding his advice to Employee Joiner reads :
Well, upon his request for advice, I informed him that it was something
that I simply couldn't advise him on at all ; he would have to handle it en-
tirely himself.
Asked by Respondent's counsel why he had so answered Joiner, Tremper re-
plied :
Because the management of our company has made it very clear that labor
and union problems were not to be discussed by supervisors in any way what-
- soever. Therefore, when this matter came up, the very first thought that
was in my mind was that it was something that I must keep my hands off of.
After consideration of the record and the demeanor of the witnesses the un-
dersigned finds that the Board has not proven that the Respondent interfered
with, restrained, and coerced its employees within the meaning of Section 8 (1)
of the Act. Accordingly he will recommend that so much of the complaint as
alleges the commission of such an unfair labor practice be dismissed.
CONCLUSIONS OF LAW
1. Utility Workers Union of America, CIO, Local 223, and Detroit Edison'Em-
ployees Association are labor organizations within the meaning of Section 2 (5)
of the Act.
2. The Respondent has not interfered with, restrained, or coerced its employees
in the exercise of rights guaranteed in Section 7 of the Act.
3 The respondent has not dominated or interfered with the formation or ad-
ministration of the Association nor contributed financial or other support to it
within the meaning of Section 8 (2) of the Act.
4. The Respondent is engaged in commerce within the meaning of Section 2
(6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned hereby recommends that the complaint against the Detroit Edison
Company be dismissed in its entirety.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 27,
1945, any party or counsel for the Board may. Within fifteen (15) days from the
date of the entry of the order transferring the case to the Board. pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board,
Rochambeau Building, Washington 25, D C., an original and four copies of a
statement in writing, setting forth such exceptions to the Intermediate Report or
to any other part of the record or proceeding (including rulings upon all motions
or objections) as he relies upon, together with the original and four copies of a
brief in support thereof Immediately upon the filing of such statement of ex-
ceptions and/or brief, the party or counsel for the Board filing the same shall
serve a copy thereof upon each of the other parties and shall file a copy with
the Regional Director. As further provided in said Section 33, should any party
desire permission to argue orally before the Board, request therefor must be made
n
DETROIT EDISON COMPANY 309
in writing to the Board within ten (10) days from the date of the order trans-
ferring the case to the Board. Any party desiring to submit a brief in support
of the Intermediate Report shall do so within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, by filing with the
Board an original and four copies thereof, and by immediately serving a copy
thereof upon each of the other parties and the Regional Director.
CHARLES E. PERSONS,
Trial Examiner.
Dated July 16, 1946.