Southwestern Gas & Electric Co.

National Labor Relations Board - Board Decisions

Oct 26, 1939

16 N.L.R.B. 512 (N.L.R.B. 1939)

In the Matter of SOUTHWESTERN GAS & ELECTRIC COMPANY and INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS
Case No. C-482.-Decided October 06, 1939
Gas and Electric Utility Industry-Interference, Restraint , and Coercion--
Discrimination : discharge for union activity-Regular and Substantially Equiva-
lent Employment : employment obtained elsewhere not considered as-Reinstate-
ment Ordered : discharged employee-Back Pay: awarded discharged employee.
Mr. Samuel Lang, for the Board.
Mr. R. L. Arnold and Mr. William H. Arnold, Jr., of Texarkana,
Ark., for the respondent.
Mr. E. D. Bieretz and Mr. James Preston, of Washington, D. C., for
the Union.
Mr. Willard Y. Morris, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by International
Brotherhood of Electrical Workers, herein called the Union, the Na-
tional Labor Relations Board, herein called the Board, by the Regional
Director for the Fifteenth Region (New Orleans, Louisiana), issued
its complaint dated January 10, 1938, against Southwestern Gas &
Electric Company, Shreveport, Louisiana , herein called the respond-
ent, alleging that the respondent had engaged in, and was engaging in,
unfair labor practices affecting commerce within the meaning of Sec-
tion 8 (1) and (3) and Section 2 (6) and (7) of the National Labor
Relations Act, 49 Stat. 449, herein called the Act. Copies of the com-
plaint, accompanied by notices of hearing, were duly served upon the
respondent and the Union.
In respect of the unfair labor practices, the complaint alleged
in substance (1) that on or about May 20, 1937, the respondent
discharged and thereafter refused to reinstate Jim Heizer, an em-
16 N. L. R. B., No. 54.
512
SOUTHWESTERN GAS & ELECTRIC COMPANY 513
ployee, for the reason that he had applied for membership in, or
joined, the Union and had assisted it and had engaged in concerted
activities for the purpose of collective bargaining and other mutual
aid and protection; and (2) that the respondent interfered with,
restrained, and coerced its employees in the exercise of the rights
guaranteed in Section 7 of the Act by the discharge of and refusal
to reinstate Heizer, and by various other acts such as spying on
meetings of the Union, advising employees that they would be
discharged if they joined the Union, questioning employees to de-
termine if they were members of the Union, and issuing a notice
addressed to all employees advising them about joining a union.
Pursuant to notice, a hearing was held at Texarkana, Arkansas,
on January 20, 21, and 22, 1938, before James L. Fort, the Trial
Examiner duly designated by the Board. The Board and the re-
spondent were represented by counsel and participated in the hear-
ing. Full opportunity to be heard, to examine and cross-examine
witnesses, and to introduce evidence bearing on the issues was
afforded all parties.
At the opening of the hearing, the respondent filed a motion to
dismiss the complaint on the ground that the Board had no juris-
diction of the subject matter. The Trial Examiner reserved decision
upon this motion at the hearing and denied it in his Intermediate
Report. The ruling is hereby affirmed., The respondent also filed
a motion to make the allegations of the complaint more definite and
certain. The Trial Examiner denied this motion. The ruling is
hereby affirmed. The respondent thereafter filed an answer denying
that it had engaged in the alleged unfair labor practices.
The Trial Examiner refused to admit in evidence respondent's Ex-
hibit No. 2, a letter addressed to the president of the respondent,
written by the vice president of Central Illinois Public Service Com-
pany, in regard to the reasons for the discharge of Heizer by the
latter company. We are of the opinion that this ruling was errone-
ous. The ruling is hereby reversed and the exhibit admitted in
evidence. During the hearing, counsel for the Board moved to
amend the pleadings to conform to the proof in so far as the proof
showed that the Texarkana-Arkansas Division of the respondent
'referred to in the complaint is actually two divisions, the Texarkana
and the Arkansas Divisions. The Trial Examiner granted this mo-
tion. The ruling is hereby affirmed.
During the course of the hearing other rulings were made by the
Trial Examiner on motions and on objections to the admission of
evidence. The Board has reviewed these rulings of the Trial Exam-
'See Section I, infra.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
iner and finds that no prejudicial errors were committed. The rul-
ings are hereby affirmed.
Subsequent to the hearing, the respondent filed a brief and renewed
its motion to dismiss the complaint. Thereafter, the Trial Examiner
filed his Intermediate Report, dated March 14, 1938, copies of which
were duly served upon all parties, in which he found that the respond-
ent had engaged and was engaging in unfair labor practices affecting
commerce within the meaning of Section 8 (1) and (3) and Section
2 (6) and (7) of the Act. He recommended that the respondent
cease and desist from its unfair labor practices and that it offer full
reinstatement with back pay to Heizer.
Thereafter, the respondent filed exceptions to the Intermediate
Report. On October 27, 1938, and on July 11, 1939, pursuant to
notice duly served upon all parties, oral argument, in which counsel
for the respondent and the Union participated, was had before the
Board in Washington, D. C.
The Board has reviewed all the exceptions to the Intermediate Re-
port and finds them without merit, except as they are consistent with
the findings, conclusions, and order set forth below.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The respondent, Southwestern Gas & Electric Company, is a Dela-
ware corporation with its principal office and place of business in
Shreveport, Louisiana. The respondent is engaged in (1) generating,
buying, transmitting, selling, and distributing electric energy for
light, power, and other purposes in the States of Arkansas, Texas,
and Louisiana; (2) buying, transporting, selling, and distributing
natural gas in the State of Mississippi; (3) pumping, storing, dis-
tributing, and selling water in the State of Arkansas; (4) manu-
facturing, storing, distributing, and selling ice in the State of Texas;
and (5) distributing and selling gas and electric appliances and ac-
cessories in the States of Texas, Arkansas, and Louisiana.
Eighty per cent of the respondent's total income is derived from
the sale of electricty. The respondent's principal generating plant is
located at Shreveport, Louisiana. Approximately 45 per cent of the
respondent's revenue from the sale of electricity comes from custom-
ers in the State of Texas. The respondent's ,Shreveport plant sends
30 per cent of its output of electric energy, amounting to 50 per cent
of the electricity used in Texas by the respondent, to that State. Ap-
proximately 20 per cent of the respondent's revenue from .the sale of
electricity is derived from customers in the State of Arkansas, and
I
SOUTHWESTERN GAS & ELECTRIC -COMPANY' 515
part of the electricity sold in this State by the respondent is supplied
by its Shreveport plant. The respondent's substation and offices at
Texarkana, Arkansas, supply electricity and deliver electric appli-
ances and accessories to customers in 'Texarkana,. Texas. According
to the testimony of Lanston Ashford, the respondent's operating
superintendent, the respondent buys some supplies and equipment
in large quantities" for use in Arkansas," Texas, and Louisiana,
which come from points outside these three States.
Throughout the territories which it serves in the States of
Arkansas, Texas, Louisiana, and Mississippi the respondent has con-
nected to its systems over 67,000 customers for electricity, more than
4,000 customers for gas, and more than 1,000 customers for water.
The respondent supplies electricity to 150 cities and communities,
including Shreveport, Louisiana, and Texarkana, Texas-Arkansas;
gas service to 6 cities and communities, including Biloxi, Mississippi ;
and water and ice to 25 cities and communities. In the area which
it serves, the respondent is dominant in the electrical field and has
no considerable competition. The respondent supplies 90 per cent
of the electricity used in the east Texas oil fields. Exclusively de-
pendent upon the respondent for their supplies of electric energy
are: (1) the western Arkansas coal mines; (2) extensive portions of
the services of the Southern Bell Telephone and Telegraph Company,
Inc., the Southwestern Bell Telephone and Telegraph Company,,
Inc., the Western Union Telegraph Company, Inc., and the Postal
Telegraph Company, in Louisiana, Arkansas, and Texas; (3) build-
ings and important services of the United States Government and
of the State and municipal governments in these three States; (4)
railroads and railroad terminals in the same three States, including
the Chicago, Rock Island and Pacific Railroad, the Louisiana and
Arkansas Railway Lines, the Texas and Pacific Railway Company,
the Southern Pacific Lines, and the Missouri Pacific Lines; (5)
newspaper and radio stations and also airports and airlines in these
three States, including the United States Army airfield at Shreve-
port, Louisiana; and (6) practically all the industrial and commercial
units and systems located and operating in the territory in which the
respondent sells electricity. Important commercial, industrial, gov-
ernmental, and public utility services depend upon the respondent
exclusively for their supplies of gas in the territory served by the
respondent in the State of Mississippi, and for their supplies of ice
in the territory served by the respondent in the State of Texas.
The respondent employs approximately 600 persons in the operation
of its plants.
The respondent is controlled by the Central and South West Util-
ities Company, which owns all the respondent's common stock. The
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Central and South West Utilities Company is, in turn, a subsidiary
of The Middle West Corporation.
Conclusions with respect to the respondent's relation to commerce
It is evident from all the above findings (1) that the respondent
receives "some supplies and equipment . . . in large quantities" in
interstate commerce, and that a labor dispute between the respondent
and its employees, interrupting the respondent's operations, would
seriously affect the flow of these "supplies and equipment" in inter-
state commerce; (2) that the respondent transmits large quantities
of electric energy across State lines by means of equipment serviced
by its employees, and that a labor dispute between the respondent
and its employees, interrupting the respondent's operations, would
seriously affect the transmission of electric energy across State lines,
and the servicing of equipment; (3) that large areas in the States
of Texas, Louisiana, and Arkansas are almost entirely dependent upon
the respondent as a commercial source of electric energy, that large
areas in the State of Mississippi are dependent upon the respondent
as a commercial source of gas, and that large areas in the State of
Texas are dependent upon the respondent as a commercial source of
ice; and (4) that a cessation of the supply of power, gas, and ice by
the respondent, such as would tend to accompany a labor dispute be-
tween the respondent and its employees, (a) would tend to burden and
obstruct the operations of various instrumentalities of interstate
transportation and communication by compelling them to use
emergency substitutes for their normal supply of power, gas, and ice,
as well as by causing in some instances complete shut-downs, and, in
others, temporary interruption of service, (b) would directly cause
a cessation or curtailment of the operations of the businesses supplied
by the respondent with power, oil, and gas and engaged in shipping
and receiving commodities in interstate commerce, and (c) would
have an effect on interstate commerce and communication substan-
tially equivalent to that caused by simultaneous labor disputes in the
respondent's business and in all the businesses served by the respond-
ent and engaged in operating the instrumentalities of interstate com-
merce and communication or in shipping and receiving commodities
in interstate commerce.2
R Matter of Consolidated Edison Company of New York, Inc. and United Electrical and
Radio Workers of America, affiliated with the Committee for Industrial Organization,
4 N. L. R. B. 71, 75-83; order enforced, as modified as to other issues, in Consolidated
Edison Company of New York, Inc. v. National Labor Relations Board, 305 U. S. 197
(1938).
SOUTHWESTERN GAS & ELECTRIC COMPANY
II. THE LABOR ORGANIZATION INVOLVED
517
International Brotherhood of Electrical Workers is a labor organ-
ization affiliated with the American Federation of Labor, admitting
to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. The discharge of Jim Heiner; interference, restraint, and coercion
Jim Heizer first worked for the respondent as a lineman from
May until July 1927, when he voluntarily left the respondent's
employ. Previously, Heizer had had 15 years' experience in such
work. In the latter part of 1927 Heizer returned to the respondent's
employ as a lineman, but 2 years later he again quit of his own
accord. From January 1935 until his discharge on May 20, 1937,
Heizer again worked for the respondent, as a first-class lineman.
During 1937 Heizer worked with a crew of four men : Foreman
Bert Davis, who had been Heizer's foreman at all times during his
employment with the respondent; Jasper Mabry, a second-class line-
man; Charlie Almond, a lineman's helper; and Tom Aubrey, truck
driver and handy man.
The Union and the respondent in 1934 signed a contract covering
the respondent's union employees in its Louisiana Division. On
April 16, 1937, the respondent and the Union signed separate agree-
ments covering the union employees in the Louisiana and East
Texas Divisions. The employees of the East Texas Division, where
Heizer was working-in 1936 and 1937, had been organized by the
Union in the early months of 1937, preceding the signing of the
contract.
Between 1929 and 1935, while he was not in the respondent's
employ, Heiner joined the Union but subsequently dropped his mem-
bership. Early in 1937 Heizer discussed the Union with Almond
and later with Mabry. Both Mabry and Almond indicated to Heizer
that they wished.to join the Union. About the same time P. J.
Trantham, business manager of the East Texas local of the Union,
having heard that Heizer was- interested in the Union, interviewed
the latter and about a week before Heizer's discharge appointed
him contact man for the Union in the respondent's Arkansas and
Texarkana Divisions, where Heizer's crew was then working. Sub-
sequently Heizer, through Almond and Mabry, contacted other em-
ployees of the respondent, including the respondent's Texarkana
city line crew, about joining the Union. On May 17, 1937, Heizer
signed an application card for membership in the Union, but it
was not-until after his discharge that he paid all his $7 initiation
fee and was formally initiated. Heizer was the first of the 35
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees in the Arkansas and Texarkana Divisions eligible for
union membership to apply for such membership. Almond and
Mabry became union members on May 26, 1937.3
Foreman Davis had issued orders to the members of his line crew
forbidding them to associate or discuss wages or other working
conditions with the members of the respondent's other line crews,
including the Texarkana city crew. On the morning of May 20,
1937, Davis was informed by a member of the Texarkana city crew
that Almond had told him the rates of pay of the Davis crew.
Davis angrily confronted Almond and accused him of. disobeying
orders. Almond denied the accusation. Davis then told Almond,
"If it was not for conditions, I would let you go." Almond described
the subsequent occurrences as follows :
So, he [Davis] turned to the rest of the crew and myself too
and says, "By God, this goes for all of you." He says, "You
can, you got to keep your God damn mouths shut." He says,
"You go to the grunt 4 around here and tell about your raise
the first thing you know it will be in the office," and he says,
"They Will all be raising Hell." And he was looking at Mr.
Heizer and Mr. Heizer says, "Well, Bert, the wages is known
all over the country." And he [Davis] says,'"Now, God damn
you, when I want you to talk, I will call your name." And
says, "Keep your God damn mouth shut" . . . Mr. Heizer
asked him, he says, "Well, don't cuss me." And he [Davis]
said, "Now, God damn you, shut up, or I will let you go."
And he [Heizer] says, "Well, don't cuss me." And he [Davis]
said, "Well, God damn you, you are fired." And he says, "Get
your tools off the truck," and Mr. Heizer stepped down off
the sidewalk and started behind the truck and he stopped and
turned to Mr. Davis and he says, "I will put you through the
dew," 5 and Mr. Davis jumped off the sidewalk and grabbed
a brush axe off the back of the truck and he says, "You God
damn son-of-a-bitch, put me through the dew." And Mr.
Heizer run around the truck and come back on the sidewalk on
the other side, and in the meantime Mr. Davis had laid the axe
down and stepped back on the sidewalk, and Heizer told him,
8 J. M. Meyers, an employee of the respondent, testified that on the evening of the day
of Heizer's -discharge, Heizer, Mabry, and Almond attempted in his presence to telephone
Trantham and obtain application cards for the Union. Meyers testified that he received
the "impression" that all three men desired application cards. Heizer testified that the
attempt to telephone Trantham was for the purpose of rushing through the membership
of the three employees. Both Holzer and Trantham testified that Heizer's application card,
dated May 17, 1937, and introduced in evidence, was signed by Heizer in Trantham's
presence that day. We credit the testimony of Heizer and Trantham.
* A lineman's helper.
Although the evidence is not clear, this expression apparently means, "I will get even
with you."
i
SOUTHWESTERN GAS & ELECTRIC COMPANY 519
"You will not call me no son-of-a-bitch." And he [Davis] said,
"I will take that back, but God damn you, you are fired. Get
your tools off the truck." He [Heizer] went and got his tools,
and with his tools in his hand, came back on the sidewalk, and
Mr. Aubrey was sitting there, and Mr. Heizer says to him, "Tom,
you are the cause of this." And Mr. Aubrey, he jumped up
and grabbed the brush axe and Mr. Heizer taken his hammer
and drawed it back to defend himself, and Mr. Mabry got the
axe from Mr. Aubrey, and I, got Mr. Heizer's hammer.
Heizer corroborated the testimony of Almond, describing the
events relating to his discharge after Davis' rebuke of Almond as
follows :
And then he [Davis] carne on back and he paced up and
down a little bit and he came over and said to me, "By God,
they've got to keep their mouths shut," and he said "the first
thing we know they will be saying we have agitated in the
office," and he said, "They will raise hell," and I said, "Bert
everybody knows the conditions in East Texas. It is no secret."
He looked at me and he said, "Goddam you, keep your mouth
shut" . . . I said to him, "Don't be cursing me," and he said,
"Goddam you, keep your mouth shut, if I want any advice
from you I will ask for it," and then said, "Get your Goddam
tools and get off the job" . . . Davis jumped down with the
brush axe and I run around the truck and he laid down the
brush axe but he had called me a son-of-a-bitch in the meantime,
and he laid down the brush axe and I went back over to Davis
and I said, "Davis, you are not going to get by with calling me
a son-of-a-bitch," and he said, "I will take that back, I am
sorry I said that."
Mabry corroborated the above testimony of Almond and Heizer.
Davis testified that, after learning that Almond had talked to a
member of the city crew, he called Almond asides and rebuked him;
that Heizer then interrupted his conversation with Almond and said,
"That is a damn lie"; 7 that he then told Heizer, "When I want you
I will call your name, get the hell out" ; that Heizer replied, "Don't
curse me"; that he said, "Now, listen here, big boy, I will curse you
here or anywhere I want to as far as that is concerned, keep your nose
out of my business"; that he then discharged Heizer, saying, "We don't
need you anymore, you are all the time making trouble, get out"; that
when Heizer said, "You think I joined the Union," 8 he denied this
e Heizer and Mabry denied that Davis called Almond to one side before rebuking him.
4 Heizer, Almond, and Mabry denied that Heizer made this remark.
6 Heizer and Mabry denied that Heizer made this remark.
247383-40-vol. 16 -34
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assertion; that he seized. the pick axe because he feared that Heizer
was going to assault him with the hammer; and that Aubrey seized a
pick axe only in self-defense when threatened by Heizer with a pick
axe. On direct examination Aubrey, a witness for the respondent,
corroborated Davis' testimony concerning the events relating to
Heizer's, discharge. On "cross-examination, however, Aubrey first tes-
tified that he was too far away from Almond, Davis, and Heizer to
hear what any of them said until Davis told Heizer, "When I want you
I will call your name." When counsel for the Board then pointed out
to Aubrey that, according to the latter's testimony on direct examina-
tion, he, could not have heard Heizer tell Davis, "That is a damn lie,"
and asked Aubrey if he had heard this remark, Aubrey testified, "I
think so," and insisted that Heizer made this statement only after
Davis had told Heizer, "When I want you I will call your name," and
that Davis had addressed Heizer before the latter spoke.
The Trial Examiner who observed all of the foregoing witnesses
when they testified at the hearing and commented on their demeanor in
his Intermediate Report, credited the testimony of Almond,; Mabry,
and Heizer concerning the above events. In view of the Trial Ex-
aminer's findings and of the confused nature of Aubrey's testimony,
we find that the testimony of Almond, Mabry, and Heizer, set forth
above, is to be credited. We find the facts to be as set forth above
in their testimony.
Foreman Davis, on direct examination and at first on cross-examina-
tion, insisted that he discharged Heizer solely for "butting in" and
because "he [Heizer] gave me a swear word when I was talking to a
man." Later on cross-examination Davis testified that he discharged
Heizer both for "butting in" and for being unable to get along with
the other members of the crew because of a quarrelsome and conten-
tious disposition. Andrew Patterson, chief engineer and ' the im-
mediate superior of Davis, testified that several days after-Heizer's
discharge, when he questioned Davis concerning this incident, Davis
informed him that Heizer had been discharged because of his quarrel-
some character which prevented his getting along with the other mem-
bers of the crew, and in particular because of his attempted assault
upon Aubrey. The respondent's answer and the authorization made
out at Davis' orders to remove Heizer from the respondent's pay roll
state that Heizer was discharged "because of inability to get along
with others of the crew."
Inasmuch as, according to the testimony of all the witnesses con-
cerning Heizer's discharge, Davis had discharged Heizer before
Heizer and Aubrey quarrelled, it is clear that Heizer's quarrel with
Aubrey could not have caused his discharge. . .
The respondent introduced evidence showing that when Heizer
was in its employ between 1927 and 1929 (1) he was attacked by an
SOUTHWESTERN GAS & ELECTRIC COMPANY 521
employee whom he had cursed; (2) he attacked another employee
who dropped a transformer on his foot; (3) he had a fight with a
third employee, the brother of Foreman Davis, and on another occa-
sion attempted to assault this employee; and (4) that another em-
ployee allegedly quit because of a dislike for Heizer. The respondent
also introduced in evidence a letter from the Central Illinois Public
Service Company for whom Heizer worked between 1929 and 1931,
stating that Heizer had been discharged in 1931 because of his con-
tentious character and reluctance to obey orders and instructions. We
do not believe that this evidence has any relation to the discharge of
Heizer by the respondent in 1937. Davis himself testified that when
he discharged Heizer in 1937 he gave no thought to the various inci-
dents concerning Heizer in 1928 set forth above. Moreover, when
Heizer left the respondent's employ in 1929, C. L. Leighton, manager
of the respondent's offices at DeQueen, Arkansas, voluntarily gave
Heizer a letter stating that Heizer's service record with the respondent
had been "very good," and that the respondent would be very glad
to rehire Heizer at any time. In addition, in 1935 when Heizer was
in Illinois, Foreman Davis sent him a telegram informing him that
he could obtain employment with the respondent and subsequently
hired Heizer. Such evidence shows clearly that the respondent did
not consider that any of the above incidents in 1927 or 1928 in any
way made Heizer an undesirable employee.
The evidence shows that in 1935 Heizer engaged in a street fight;
that in 1936 Heizer and Mabry had a brief struggle. while at work;
and that in July 1936, L. L. Baker, an employee, quit his job because
of his "personal" dislike of Heizer. However, at oral argument, the
respondent's counsel stated: "I do not think you will find a crew but
you do not have bickering and repercussions and fighting." Although
Aubrey testified that Heizer often "fussed" at him, he admitted that
he and Heizer had no more quarrels than employees working together
daily ordinarily would have. Nor does the evidence show that Heizer
was unable to get along with the other members of his crew. Baker
testified that Heizer "ordinarily got along with the foreman and some
of the boys very well." Almond, Heizer's helper, testified that he had
no difficulty working and getting along with Heizer. Mabry testi-
fied that he was at fault in the fight with Heizer in 1936 and that
since then he and Heizer had been friends." It is highly improbable
that Foreman Davis would have sent for Heizer in 1935 if he had
found him difficult to get along with previously. In fact, Foreman
Davis and Heizer had been good friends between 1927 and 1935.
Although Heizer testified that for about a month before his discharge
Y In view of this testimony of Almond and Mabry, we give no credit to the statements of
Foreman Davis that Almond and Mabry complained to him about the quarrelsome char-
acter of Heizer.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he and Davis had some difficulty getting along with each other,
Foreman Davis testified that his friendship with Heizer, although
somewhat weakened, continued to be strong until the moment of
Heizer's discharge. Aubrey's testimony that he and Heizer had no
more quarrels than usual among line crews has already been referred
to. And Ted Collier, a line foreman for the L. E. Meyers Construc-
tion Company, and a union member, testified that Heizer had worked
in his crew for 7 months after leaving the respondent's employ on
May 20, 1937, and that he had not found Heizer at all quarrelsome
or troublesome. There is no evidence that because of Heizer's dis-
position or for any other reason the work of Heizer or. Heizer's crew
deteriorated at any time previous to Heizer's discharge. Collier,
Almond, and Mabry all testified that Heizer was a very good worker,
above the average, and Foreman Davis did not testify to the contrary.
In addition, Langston Ashford, the respondent's operating superin-
tendent, testified that the Davis crew had an outstanding record,
doing "more work and better work" than the other line crews.
The evidence clearly does not support Davis' assertion that he
discharged Heizer for "butting in." On the contrary, Heizer made
no attempt. to butt in at the time Davis was rebuking Almond and
spoke respectfully to Davis only when the latter addressed, or
apparently addressed, a remark to Heizer and the other members
of the crew. Nor did Heizer show any signs of insolence or insubor-
dination prior to Davis' discharge of him.
In view of the above evidence, the long and excellent employment
record of Heizer with the respondent, and the long and close friend-
ship between Heizer and Davis, we are of the opinion that none of
the reasons advanced by Patterson and Davis adequately explain,
Heizer's discharge.
During the negotiations preceding the signing of the April 16
contract between the Union and the respondent, Trantham informed
Ashford that the Union did not want the Davis crew to work in
the Louisiana Division. Shortly after the signing of the contract,
at the insistence of Trantham, who stated that he feared that Davis
would not live up to the terms of the contract, the respondent trans-
ferred the Davis crew from the East Texas Division to the Arkansas
and Texarkana Divisions. Davis admitted at the hearing that he
resented this transfer and the Union's part in it. In fact, Davis
testified at the hearing that in the presence of his crew in 1937 he
told his brother, then a member of the crew, that if the latter joined
the Union he, Davis, would "bust his brains" out. Davis also testi-
fied that when the closed shop was discussed among the crew he.
"would get so damn mad about it I could . . . bust a guy's mouth
open"; and that he told the crew that he would not join the Union
SOUTHWESTERN GAS & ELECTRIC COMPANY 523
-because "we are working for too good a company to join the union,
we don't have to join it." Aubrey testified that Davis sometimes
used "pretty strong" language about the Union during talks with
the members of the crew and informed the crew that he did not
believe in the Union and would not join it. Almond, Heizer, and
Mabry also testified, and Davis and Aubrey denied, that during
April 1937, on several occasions, Davis threatened the members of
his crew with discharge if any of them joined the Union. Mabry
and Almond also testified that on two occasions when Davis had
been displeased with the work of another employee of the respond-
ent who belonged to the Union, Davis told the members of his crew,
"That is the kind of damn fellows that belong to the union." Davis
testified that he merely told the crew, "I didn't approve of such union
stuff as that." Mabry,and Almond also testified, and Davis denied,
that Davis told the crew that by signing a union membership card an
employee signed an affidavit against the respondent. In view of
Davis' own testimony showing his hostility toward the Union and
his expressions of it to the crew, we credit the testimony of Heizer,
Almond, and Mabry set forth above.
. Davis denied that prior to Heizer's discharge he knew or suspected
that Heizer belonged to or was acting for the Union. Mabry,
Almond, and Heizer testified that because of Davis' anti-union
remarks to them they tried to conceal their union activities from him.
Davis and Aubrey both testified, and Mabry, Almond, and Heizer
denied, that shortly before Heizer's discharge Heizer had spoken
disparagingly of the Union and stated that he would not join it.
In view of Heizer's activity on behalf of the Union at this time,
we do not credit this testimony of Davis and Aubrey. Davis was
well aware of the activity of the Union in the East Texas Division
where his crew worked or had worked. The evidence establishes that
Davis continually sought to discover the attitude of the members of
his crew toward the Union and constantly suspected them of being
sympathetic toward the Union. Thus, Mabry testified that in early
May 1937 Davis asked him to go for a walk and during the walk
began "pumping" him in order to find out what the other members
of the crew had said to Mabry about joining the Union and what
Mabry thought about the Union. Mabry also testified that at this
time Davis advised him not to join the Union, saying that the Union
men in the East Texas Division were lazy and "would not stick to-
gether" and "were running" the Davis crew out "like dogs." Mabry
and Almond testified that in April, when Mabry returned from a
trip to a nearby town during which he had contacted other employees
of the respondent who belonged to the Union, Davis questioned
Mabry whether he had heard "anything about the union" and if so,
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what; and that when Mabry indicated that he had informed some of
the men that he might be interested in the Union, Davis said : "God-
dam you, there you go, you are always talking too much. You ought
to keep your mouth shut . . . stay away from them . . . [do] not
even associate with them." Davis denied the above testimony of
Mabry and Almond, but in view of Davis' hostility toward the Union
and his expression of that hostility to his crew, we do not credit his
denials. Aubrey admitted at the hearing that he informed Davis
that Mabry and Almond were sympathetic toward the Union. Al-
though Aubrey denied knowing Heizer's feeling toward the Union,
he testified : "I guess he' [Heizer] liked it all right." Aubrey denied
ever telling Davis that Heizer "liked" the Union, although he testified
that after Heizer had been discharged he and Davis had discussed
whether or not Heizer was a union member. The small size of Davis'
crew and the daily contacts between Davis and the crew members;
Davis' careful observance and questioning of the members of his
crew to discover their union activities; the numerous conversations
between Davis and the members of his crew concerning the Union;
and Davis' readiness to suspect a crew member of union activity,
lead us to find that before Heizer's discharge, Davis either knew or
suspected that Heizer was sympathetic toward, and active on behalf
of, the Union.
Prior to Heizer's discharge, Davis had, as shown by the testimony
of Mabry previously set forth, warned the members of his crew not
to associate with union men. Immediately after Heizer was dis-
charged, Davis told Mabry not to associate with Heizer, on June 14
told both Mabry and Almond not to associate with Heizer, asking
Mabry if Heizer was a union member, and late in June when Mabry
admitted seeing Heizer, warned Mabry not to do so. Moreover, ac-
cording to the testimony of Mabry, Almond, and Aubrey, on July
8, Davis asked Mabry and Almond if they were members of the
Union. According to the testimony of Mabry and Almond, when
they admitted that they were members, Davis asked to see their union
cards and if Heizer had "led" them into the Union and was the cause
of their joining. Davis did not deny this testimony, which we credit.
Finally, Audie Marshall, a union member not in the respondent's
employ, testified that during the first week of June 1937 he asked
Davis for a job as a lineman in Davis' crew; that Davis asked him
whether or not he had a union card, saying that he had "just let
one fellow go" a short time before, who had "got smart with him"
after joining the Union; and that Davis stated that he did not think
that a man who "belonged to the union was . . . the right kind
. . . to be on the job." Davis did not deny this testimony of
Marshall, which we credit. In the light of the above evidence, and
SOUTHWESTERN GAS & ELECTRIC COMPANY 525
in view of Davis' violent hostility toward the Union and the fact
that he knew or suspected that Heizer was active on behalf of the
Union, we find that he discharged Heizer on May 20 because of the
latter's activity on behalf of the Union.
Independently of the above reasons, we believe that Heizer's dis-
charge was discriminatory. On April 16, 1937, the respondent and
the Union had entered into a contract covering the union members
in the East Texas Division where Davis' crew then worked. As we
have already set forth, Davis bitterly resented the fact that shortly
after the signing of the contract he and his crew were transferred
from the East Texas Division at the request of the Union. The evi-
dence also shows that Davis expressed resentment not only toward
the Union but also toward the contract. Pursuant to the terms of
this contract the Davis crew received an increase in wages. When
announcing this increase in wages to the crew, Davis according to
the testimony of Mabry which Davis did not deny and which we
credit, belittled his men in a vulgar manner and told them : "No
lineman in the world is worth a dollar an hour." Davis repeatedly
cautioned the members of his crew not to associate or discuss their
wages or working conditions with members of other line crews of
the respondent. Davis and Aubrey testified that the reason for this
order was to prevent Davis' crew from causing dissatisfaction among
the other crews. However, the fact that, according to the testimony
of Davis and Ashford, the wages of the crews not covered by the terms
of the union contract were nevertheless raised at the same time in
the same amount as those of crews covered by the contract, although
the working conditions and hours of the other crews were not changed
in accordance with those under the contract, indicates that this reason
of Davis and Aubrey is questionable. In view of Davis' hostility
toward the Union and the union contract, we find that Davis forbade
the discussion of their wages and working conditions by his crew
with other crews because he felt that his crew might use such dis-
cussions to induce other employees of the respondent to join the
Union. Decisive evidence of this fact is contained in Davis' remarks
to Heizer at the time of the latter's discharge when Davis told him
that the crew must be silent about their wages because "the first
thing we know they will be saying we have agitated in the office
. . . They will raise hell." Whatever Davis' motive may have
been, his order interfered with the rights of the members of his crew,
guaranteed in Section 7 of the Act, to attempt to organize the respond-
ent's employees by informing them of one of the advantages of be-
longing to the Union-namely, the obtaining of an increase in wages
through a contract between the respondent and the Union. Since
Heizer was discharged by Davis for attempting to assert, and protect
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the exercise of, these rights of the members of the crew to engage
in the union activity of discussing their wage raises, secured by the
contract between the Union and the respondent, his discharge mani-
festly was a.violation of Section 8 (3) of the Act.
The respondent asserts that it is not bound by any of the anti-
union acts or statements of Foreman Davis. We are unable to
agree with this assertion. The evidence shows that Davis had au-
thority to hire and discharge the members of his crew, subject only
to the approval of Patterson and other officials of the respondent.
Moreover, Ashford testified he could not recall that Davis' action in
hiring or discharging an employee had ever been disapproved. The
respondent's officials testified that they warned Davis not to show
hostility toward the Union or interfere with any of its activities.
However, the respondent's officials, through statements of the union
representatives such as Trantham, were notified of Davis' anti-union
attitude. Patterson admitted that he knew that Davis' views were,
in many respects, hostile to the Union. There is no evidence that at
any time the respondent rebuked Davis for his anti-union statements
and activity or disavowed them to its employees. On the contrary,
Patterson expressly approved Heizer's discharge upon the basis of
Davis' word alone. Under such circumstances, we are of the
opinion that the respondent cannot disclaim responsibility for the
conduct and activity of Davis as set forth above.lo
We find that the respondent discharged Heizer because of his
union activity. The respondent, by discharging Heizer, discrimi-
nated in regard to his hire and tenure of employment, thereby dis-
couraging membership in a labor organization.
We find that the respondent, by the discharge of Heizer and by
other acts and conduct set forth above, including the statements,
orders, and conduct of Davis, interfered with, restrained, and
coerced. its employees. in the exercise of the rights guaranteed in
Section 7 of the Act. -
At the time of his discharge Heizer was earning a dollar an
hour. Fourteen and one-half work-days after his discharge Heizer
secured employment as a lineman at $1.10 an hour with the L. E.
Meyers Construction Company of Shreveport, Louisiana. At the
time of the hearing Heizer was still employed by the Meyers Com-
pany. Heizer testified that he desires to return to his former posi-
tion in the employ of the respondent; and that he considers Texar-
kana his home, since he had his furniture stored there and since he
is developing a farm near there. The respondent contends that
10 Swift c& Company v. National Labor Relations Board. 106 F. (2d) 87 ; American Mann-
faotnring Company and Nu-Art Employees, Inc. Y. National Labor Relations Board,
309 U. S. 629.
SOUTHWESTERN GAS & ELECTRIC COMPANY 527
Heizer obtained substantially equivalent employment elsewhere and
thereby lost his status as an employee of the respondent. Although
we do not concede that the obtaining of other regular and sub-
stantially equivalent employment would deprive the Board of power
to reinstate an individual who had been discharged for union
activity, we find that since Heizer desires to be reinstated by the re-
spondent, since he has furniture and a farm at Texarkana which he
considers his home, and since he has acquired several years' seniority
with the respondent, he had not obtained regular and substantially
equivalent employment and did not lose his status as an employee
of the respondent."
B. Alleged interference, restraint, and coercion
The complaint also alleges that the respondent engaged in unfair
labor practices within the meaning of Section 8 (1) of the Act by
spying on meetings of the Union and by issuing a notice addressed
to all employees in the Texarkana and Arkansas Divisions. We
have reviewed the evidence and are satisfied that the record does
not support these allegations of the complaint. W. E. Bann, the
respondent's Texarkana Division Manager, on July 21, 1937, sent
this notice to the employees in his Division, and on July 26, 1937,
drove slowly past the hall where a union meeting was being.held.
However, we are convinced by the evidence, and we find, that Bann
drove past the union hall on an errand having no connection with
the union meeting and did not spy on it, and that the notice sent
by him did not interfere with the rights of the employees guaranteed
in Section 7 of the Act. We shall dismiss these allegations of the
complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find that the activities of the respondent set forth in Section
III above, occurring in connection with the operations of the respond-
ent described in Section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices,, we shall order it to cease and desist therefrom. In
11 Matter of Automotive Maintenance Machinery Company and Steel Workers Organizing
Committee , on behalf of Amalgamated Association of Iron, Steel & Tin Workers of North
America, Lodge 1744, 13 N. L. R. B. 338 , and cases cited in footnote 13 therein.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
order to effectuate the policies of the Act and as a means of removing
and avoiding the consequences of the respondent's unfair labor
practices, it is essential that in aid of our cease and desist order the
respondent be directed to take certain affirmative action more
particularly described below.
We have found that the respondent discharged Heizer because of
his union activity. The evidence shows that on July 22, 1937, the
respondent laid off Mabry and Almond and disbanded the Davis
crew. Davis and Aubrey continued to work for the respondent but
not as members of a line crew.12 The respondent's officials asserted
that the Davis crew was disbanded at this time because there was
insufficient work for them since, due to the Union's protests, the
crew could no longer work, as it had previously, in the East Texas
Division. The work formerly done by the Davis crew in the East
Texas Division is now being done for the respondent by an inde-
pendent contractor. The respondent asserts that even if Heizer had
not been discharged on May 20 he would have been laid off with the
two other members of the crew on July 22. Although the respond-
ent asserts that Heizer was a construction lineman and that all the
many linemen now in its employ are operating linemen, there is no
evidence that Heizer, in view of his long experience as a lineman,
would be unable to perform the work of an operating lineman.
Moreover, the respondent did not establish at the hearing that even
if it had laid off Heizer on July 22 it would not have rehired him
at some later time previous or subsequent to the hearing. Conse-
quently, we shall order the respondent: (1) to offer Heizer immediate
and full reinstatement to his former, or a substantially equivalent,
position, dismissing, if necessary, any employee hired since May 20,
1937, the date when Heizer was discriminatorily discharged; (2)
in the event that employment is not immediately available for Heizer
as just set forth, to place Heizer upon a preferential list to be offered
employment in his former or a substantially equivalent position as
soon as such employment becomes, available and before other persons
are hired for such-work; and (3) to make Heizer whole for any loss
of pay he may have suffered by reason of his discharge, by payment
to him of a sum of money equal to (a) the amount which he normally
would have earned as wages from May 20, 1937, the date of his dis-
charge, to July 22, 1937, the date when Heizer's crew was disbanded,
and (b) the amount which he normally would have earned as wages,
if the respondent had given him the first first-class lineman's job
which became available after his crew had been disbanded, from the
date when he would have been given this job until, the date either
"Davis and Aubrey are engaged in clearing rights of way, unskilled work paying about
half the ordinary wages of a first-class lineman.
SOUTHWESTERN GAS & ELECTRIC COMPANY 529
,of the respondent's offer of reinstatement, as provided in Section (1)
above, or of the respondent's placement of Heizer on a preferential
list, as provided in Section (2) above, less his net earnings 13 during
the period from the date of his discharge to the date of the offer of
reinstatement or placement on a preferential list. In complying with
the provisions of our Order, set forth above, the respondent shall
follow a system of seniority to such extent, if any, as has heretofore
been applied in the hiring and discharge of first-class linemen.
Upon the basis of the foregoing findings of fact and upon the
entire record in the case the Board makes the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Electrical Workers is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employ-
ment of Jim Heizer, and thereby discouraging membership in Inter-
national Brotherhood of Electrical Workers, the respondent has
engaged in and is engaging in unfair labor practices within the
meaning of Section 8 (3) of the Act.
3. By interfering with, restraining, and coercing its employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices
within the meaning of Section 8 (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Southwestern Gas & Electric Company, and its officers,
agents, successors, and assigns shall:
1. Cease and desist from :
(a) Discouraging membership in International Brotherhood of
Electrical Workers, or any other labor organization of its employees,
13 By "net earnings" is meant earnings less expenses , such as for transportation, room,
and board , incurred by an employee in connection with obtaining work and working else-
where than for the respondent, which would not have been incurred but for his unlawful
discharge and the consequent necessity of his seeking employment elsewhere . See Matter
of Crossett Lumber Company and United Brotherhood of Carpenters and Joiners of
America, Lumber and Sawmill Workers Union, Local 91590, 8 N. L. R. B. 440. Monies re-
ceived for work performed upon Federal, State, county, municipal , or other work-relief
projects are not considered as earnings, but, as provided below in the Order, shall be
deducted from the sum due the employee, and the amount thereof shall be paid over
to the appropriate fiscal agency of the Federal , State, county , municipal , or other govern-
ment or governments which supplied the funds for said work -relief projects.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by discharging or refusing to reinstate any of its employees, or in
any other manner discriminating in regard to their hire or tenure
of employment, or any terms or conditions of their employment
because of membership or activity in connection with any such labor
organization ;
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their rights to self-organization, to
form, join, or assist labor organizations, to bargain collectively
through representatives of their own choosing, and to engage in
concerted activities for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act:
(a) Offer to Jim Heizer immediate and full reinstatement to his
former position or to a substantially equivalent position without
prejudice to his seniority and other rights and privileges previously
enjoyed by him, dismissing, if necessary, in the manner set forth
above in Section V, entitled "Remedy," any employee hired since
May 20, 1937, or, in the event that employment is not immediately
available for Heizer, place his name upon a preferential list to be
offered employment as soon as such employment becomes available
and before other persons are hired for such work, in the manner set
forth in said Section V ;
(b) Make whole Jim Heizer for any loss of pay he may have
suffered by reason of the respondent's discrimination in regard to
his hire and tenure of employment by payment to him of a sum of
money equal to (a) the amount which he normally would have earned
as wages during the period from May 20, 1937, the date of such dis-
crimination, to July 22, 1937, the date when his crew was disbanded,
and (b) the amount which he normally would have earned as wages,
if the respondent had given him, in the manner set forth above in
Section V, entitled "Remedy," the first first-class lineman's job to
become available after his crew had been disbanded, from the date
when he would have been given this job until the date either of such
offer of reinstatement, or of such placement of his name on a prefer-
ential list, as provided in paragraph 2 (a) of this Order, less his net
earnings 14 during the period from the date of his discharge to the
date of the offer of reinstatement or placement on a preferential list;
providing that the respondent shall deduct from the amount other-
wise due Heizer a sum equal to that received by him for work per-
formed upon Federal, State, county, municipal, or other work-relief
projects during the periods for which back pay is due him under this
Order and shall pay any such amount deducted to the appropriate
14 See footnote 13, supra.
SOUTHWESTERN GAS & ELECTRIC COMPANY 531
fiscal agency of the Federal , State, county , municipal, or other gov-
ernment or governments which supplied the funds for such work-
relief projects;
(c) Post immediately in conspicuous places throughout its plants
and warehouses in its Texarkana and Arkansas Divisions notices to
its employees stating ( 1) that the respondent will cease and desist
as provided in paragraphs 1 (a) and ( b) of this Order and ( 2) that
the respondent will take the affirmative action set forth in paragraphs
2 (a) and (b) of this Order;
(d) Maintain such notices for a period of at least sixty ( 60) con-
secutive days from the date of posting ;
(e) Notify the Regional Director for the Fifteenth Region in
writing 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 , in so far as it
alleges that the respondent has interfered with, restrained , or coerced
its employees in the exercise of the rights guaranteed in Section 7 of
the Act, by surveillance of union meetings or by the issuance of a
notice to its employees , be, and it hereby is, dismissed.