Tampa Electric Co.

National Labor Relations Board - Board Decisions

Jun 7, 1944

56 N.L.R.B. 1270 (N.L.R.B. 1944)

'In the Matter of TAMPA ELECTRIC COMPANY and AMALGAMATED ASSO-
CIATION OF STREET, ELECTRIC RAILWAY AND' MOTOR COACH EM
PLOYEES OF AMERICA, DIVISION No. 1344, A. F. OF L.
Case No. 10-C-1476.Decided June 7, 1944
DECISION,
AND
ORDER
N
Upon a complaint issued pursuant to charges filed by Amalgam-
ated Association' of Street, Electric Railway and Motor Coach
Employees of America, Division No. 1344, A. F. of L., herein called
the Union, against Tampa Electric Company, Tampa, Florida, herein
called, the respondent; a hearing was held before a Trial Examiner
in Tampa, Florida, from February 10 t6 18, 1944,' in which the
Board, the respondent, the Union, and Tampa Electric Benefit Asso-
ciation, herein called the Association, participated, by their repre-
sentatives. The Board has reviewed, the Trial Examiner's rulings
on motions and' on objections to the admission of evidence and finds
that no prejudicial error was committed. The rulings' are hereby
affirmed.
On March 10, 1944,, the Trial Examiner, issued his Intermediate
Report, a copy of which is attached hereto, in which he found that
the respondent had engaged in unfair labor practices. Thereafter,
the respondent and the Association filed exceptions' to the Inter-
mediate Report and briefs in support of their exceptions. Oral
argument before the Board Was waived-by'the parties.
The Board has considered the Intermediate Report, the, exceptions
and briefs, and the entire record,, and 'hereby adopts the findings,
conclusions, and recommendations of the Trial Examiner, except
insofar as they are inconsistent with our findings and order here-
inafter set forth. ' ,
1. We agree with the Trial Examiner's conclusion that' the re-
spondent en gaged in conduct which' is 'violative of Section 8 (1) of
the Act. - - -
-,56,N. L. R. B., No. 227.' -
1270
TAMPA ELECTRIC COMPANY 1271
During "October 1943, various inspectors and trainmasters I made
,statements to employees which were plainly coercive and interfered
with and restrained the employees in the exercise of their rights
under the Act. Thus, Inspector W. P. Johnson and Trainmaster
Scott told.employee Frank E. Fisher that the respondent had de-
termined to "take care" of those of its employees who refrained
from joining the Union. Johnson, also indicated to employee Gladys
Whigham, that he knew she had joined the Union, and, when
Whigham stated that,she believed that so long as her work was
satisfactory she could belong to "whatever [she] wanted to," Johnson
replied, "That is what you-think." Also,, Inspector Majeski told
employee Bush that the latter had made • a mistake in joining the
Union, since the Union "would never get anywhere", and, would
never `, obtain' a closed'shop.
Johnson's and Scott's remark to Fisher that the respondent had de-
termined to "take care" of those of its employees who did not affiliate
themselves with the Union could reasonably -be construed by the em-
ployee's as a promise that those who refrained from joining that or-
ganization would be favored by the respondent in its treatment of -its
employees. An attempt by an employer in such a manner to induce
employees not to join a labor organization is plainly violative of the
Act;- As recently stated by the United States Supreme Court in Medo
Photo Supply_Cotp. v.,N. L. R. B: 2
There could be no more obvious way-- of interfering with these
rights of employees than by grants of wage increases upon the
understanding that they' would leave the Union in return. The
action of employees with respect to the choice of their bargaining
agents 'may be induced by favors bestowed by the employer as
well as by his threats or domination.
The promise of a fayor as a quid pro quo for non-affiliation with a union
is as patent a form of unlawful- interference as a favor- actually, con-
ferred. No less flagrant a form of interference was Johnson's remark
to Whigham, described above, the clear implication of which is that the
respondent did, not recognize the right of,its employees to join the or-
ganization selected by them, and that any employee exercising that
right would do so at his peril, with economic reprisal by the respondent
not an unlikely consequent. Equally violative of the Act were
Majeski's statements to Bush that the Union "would never get any-
where" and would never obtain a closed shop. Judged in the light of
i Inspectors and trainmasters supervise the operations of employees , give them orders,
and have the power of recommending their discharge . The respondent concedes, and we
find, that inspectors and trainsmasters are supervisory employees.
2 321 U. S 678. - -
1272 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD
other expressions by the respondent of antipathy towards the Union,
these remarks were tantamount to a declaration that any attempt by
the Union to bargain collectively with the respondent would be futile,
as indeed, it was, because of the respondent's opposition to the Union,
,and, in any event, they bespoke a determination not to bargain with
the Union on such a vital matter as the closed shop, a "frequent subject
of negotiation between employers and employees."' For an employer
thus'to restrain his employees from joining a labor organization by
announcing that he would, by his own unlawful conduct, frustrate such
organization's efforts as collective bargaining representative, clearly
falls within the prohibition of Section 8 (1) of the Act.
Forming part of the pattern of anti-union conduct by the respondent
was the open approval and support given by it to an anti-union peti-
tion which was circulated among its employees during working hours,
as well as its domination and support of the Association, a labor
organization among its employees, and its unlawful refusal to bar-
gain collectively with the Union as the representative of its employees,
as hereinafter found. -
Upon the entire record, we. are convinced, and 'we find, that the re-
spondent's afore-mentioned'statements and acts were integral parts-of
a course of conduct engaged in by, the respondent for the purpose, and
which had the effect of, interfering with, restraining, and coercing its
employees in the exercise of the rights guaranteed in Section 7 of the
Act.
2. We agree with the Trial Examiner's conclusion that the Associa-
tion is a labor organization within the meaning of the Act. Not only
is there evidence of a utilization by the respondent of the Association
as a counterpoise to any attempt at- self-organization by the em-
•ployees,4 but the record also discloses that the Association in fact dealt
with the respondent as the representative of employees concerning
terms and conditions of employment. Thus, Vice-President and
General Manager Gannon testified that at times in the past "the mem-
bers or directors of the Benefit Association had talked to him about"
grievances and wage increases. Also, it appears that during the
summer of 1942 a committee of employees from one of the respondent's
departments presented the respondent with denu nds for a wage in-
crease, vacation privileges, and for company contributions to the cost
of employee work uniforms. After several meetings with this com-
mittee, Gannon summoned three directors of the Association, who
3 National Licorice Co v. N. L R. B., 309 U S. 350, 360. -
' Thus, in 1926, the respondent's president, Knight, addressing the employees at a
general meeting of the Association, stated that "before he would see these streetcars
operated by union labor he would see them run into the Hillsborough River," and in
1933 Knight told the employees that "he would not tolerate anybody interfering in respect
to organized labor" and that "they had the Benefit Association which was their foan of
a nnios, and that he did not want any interference from any outsider." [Italics supplied.]
1
TAMPA ELECTRIC COMPANY 1273-
represented -the department involved, to attend subsequent meetings.
These directors accordingly attended these meetings, at which an
agreement regarding the wage increase and vacation privileges was
reached ,though they did not actively participate in the discussions.
With respect to the, demand for company' contributions to,the cost of
uniforms, the respondent notified the employee committee that it
could not take -any more time with it, that the Association committee
could take care of "such matters," since that was its purpose, and that
thereafter the respondent would deal with the Association committee.
The respondent then discussed with the Association committee the de-
mand concerning the uniforms and informed it that the respondent
would pay half of the cost.5
We also concur in the conclusion of the, Trial Examiner that the
respondent has dominated and interfered with the administration of,
and has contributed support to, the Association, within the meaning
of Section 8 (2) of the Act. Some of the respondent' s officials and
supervisory employees are officers of the Association and members of
its board of directors. Also, approximately one-third of the Associa-
tion's income is derived from contributions made by the respondent,
and pursuant to the Association's bylaws, the respondent has a veto
power over all expenditures made by the Association.
3.1 We agree with the Trial Examiner that, in violation of Section
'8 (5) of the Act, the respondent has refused to bargain with the Union
as the representative of a,majority of its employees in an appropriate
unit.
The record discloses, and we find, that during the latter part of
October 1943, after the cross-check conducted by the Federal con-
ciliator- had established the Union's majority status, the respondent
and the Union entered into negotiations 'for the purpose of con-
summating a contract. It was understood by the parties that they
were to "agree on everything possible through negotiation and con-
ciliation," and certify what [they] couldn't agree on to the War Labor
Board. By October 29, the parties had agreed upon, and reduced to
writing, all the provisions of the contract except those concerning
wages, overtime pay, and a closed shop. As to the latter terms they
were unable to agree. The Union thereupon requested the respondent
to sign the contract' which had been agreed upon.7 ' Vice-President and
General Manager Gannon, who had represented the respondent in the
' In finding the Association to be a labor organization , we do not rely , as did the
Trial Examiner , upon the ambiguous provision in its constitution that one of its objects
shall be "to promote the best conduct of the business of the Tampa Electric Company
[the respondent ] for the mutual advantage of the Association and the Company, and to
provide cooperation and good fellowship among its members
The United States conciliator who had conducted the cross -check participated in the
negotiations
The matters upon which the parties were unable to agree were later the subject of
recommendations by the War Labor Board as hereinafter-noted.
I
1274 DECISIONS OF NATIONAL;, LABOR 'RELATIONS BOARD
negotiations, refused to sign the contract on the ground that he lacked
authority to do so,'and requested additional time within which to refer
the matter to the respondent's board of directors, stating - that he
would communicate with the Union as soon as he "heard anything
within 2 weeks." Although before the lapse of this period Gannon
admittedly had ascertained that it was not necessary to secure the
approval of the board of directors, he did not notify the Union of
this fact, nor' did the respondent thereafter sign 'the contract.
We are convinced, upon the evidence as a whole, and we -find, that
the intention'-of'the parties was to consider the document containing
the matters about which the parties were in accord, asa final -agree-
nient, with the disputed questions of wages, overtime pay, and closed
'shop to be submitted to the War Labor Board for its determination,
and that the respondent was accordingly under obligation to sign
the agreed-upon contract. As already noted, the understanding of
the parties was to "agree on everything possible through negotiation
and conciliation and certify-what [they] couldn't agree on to the War
Labor Board." - Indeed, the reason assigned by Gannon for refusing
to sign the agreement was his lack of authority to do so, which proved
to be without foundation, and not that the agreement was a tentative
one. Moreover, the respondent has not at any time' in these pro-
ceedings taken the position that the contract agreed upon was not
final."
,'We find that the'respondent refused to bargain with the Union, in
violation of Section 8 (5) of the Act, not only by refusing to sign
the afore-mentioned agreement, but also by: (a) advising the Union
on November 10, in -reply to the latter's inquiry as to the "status" of
that agreement, that the respondent was "stymied" because the Union
had filed charges against the respondent with the Board,,alleging.that
it was responsible for the circulation of the afore-mentioned 'anti-
union, petition; (b) by dealing with and granting the demands of a
committee of, employees concerning terms and conditions of employ-
ment, on, November 12; when that committee presented to the re-
spondent an anti-union petition signed by approximately 70 em-
ployees; 9 (c) by refusing on November 16 to deal further with the
Union on the grounds that it had filed charges against the respondent
with the Board, and that, in view of the afore-mentioned' anti-union
petition, the respondent doubted the Union's majority status; 10 and
k
The respondent did advance that contention before the war Labor Board, to which
the case was certified after the employees went out on strike on November 16. The
Regional panel of that agency on December 21, 1943, relected that contention and
recommended that the draft of the
;
agreement between the parties be determined to be
,binding and effective . It also made recommendations concerning the disputed issues of
wares. overtime pay, and union security. '
o There were approximately 193 employees in the appropriate unit.
to On this occasion , the Union also requested the respondent to post a notice directed
to its , employees stating that it recognized 'the Union as their exclusive bargaining repre-
sentative The Trial Examiner found the respondent 's failure to comply with the Union's
TAMPA ELECTRIC COMPANY 1275
(d) by refusing to deal with the Union during the strike, and by then
declaring that it would not enter into a contract with the Union "that
would slap 70-odd loyal employees in the face."
4. In its answer to the complaint, as well as during the course of its
cross-examination of a union representative, the respondent sought to
,demonstrate that the Union had not complied with the terms of a
Florida statute" providing for the licensing of union business agents.
However, the respondent does not contend that it is relieved of its
obligation to deal with the Union as the exclusive representative of its
employees because of the Union's alleged failure to meet the require-
ments of that statute. Nor did the respondent at any time assign
that to the Union as•a reason for not dealing with it as such represen-
tative.12 In view of these circumstances, it can hardly be said that
the question of whether the respondent could properly refuse to deal
with the" Union because of its alleged failure to comply with the pro-
visions of the Florida licensing law is in issue in this case. But even
if it were, for reasons amply set forth in Matter of Eppinger c Russell
Company'13 the Union's failure in that regard would not constitute
a defense to the respondent's refusal to bargain 14
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, Tampa Electric Company,
Tampa, Florida, and its officers, agents, successors, and assigns, shall :
1. Cease and desist from :
(a) Refusing to bargain collectively with Amalgamated Associa-
tion of Street, Electric Railway and Motor Coach Employees of
America, Division No. 1344, affiliated with the American Federation
of Labor, as the exclusive representative of all its employees in its
street railway division, excluding foremen, clerks, inspectors, and
supervisors, in respect to rates of pay, wages, hours of employment,
and other conditions of employment;
request in this regard to have constituted a refusal to barg"ln within the meaning of the
Act. In view of the respondent ' s prior unlawful refusals to bargain and its defiance
of the Union as the majority representative by negotiating with a committee of employees,
the respondent 's failure to post the notice of recognition sheds light on its bad faith in
dealing with the Union and on its unwillingness to recognize it as the exclusive bargaining
representative. However, we find it unnecessary to determine whether the respondent's
failure to post such a notice constitutes an independent refusal to bargain.
11 Chapter 21968, Acts of 1943, Laws of Florida.
11 While Knight, the respondent's president, at the conference between the respondent and
the Union on November 19, 1943, made mention of the fact that the Union and its repre-
sentative had failed to comply with the provisions of the statute in question, neither at
this conference nor at any other time did the respondent assign the Union's alleged failure
in this regard as a reason for not dealing with it, and the respondent for a time had in
fact dealt with the Union as the bargaining representative of the employees.
13 56 N. L. R. B. 1259.
14 In view of the foregoing disposition of the matter , we find it unnecessary to determine
whether the Union in fact failed to meet the requirements of the statute in question.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b), In any manner dominating or interfering with the administra-
tion of, or contributing financial or other support, to, Tampa Electric
Benefit Association 'as a labor organization, or dominating or inter-
fering with the formation or administration of, or contributing
financial or other support to, any other labor organization of its
employees ;
(c) Recognizing, or in any manner dealing with, Tampa Electric
Benefit Association 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;
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self -organization, to form
labor organizations, to join or assist Amalgamated Association of
Street, Electric Railway and Motor Coach Employees of America,
Division No. 1344, affiliated with' the American Federation of Labor,
or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Upon request, bargain collectively with Amalgamated Associa-
tion of Street, Electric Railway and Motor Coach Employees of
America, Division No. 1344, affiliated wit$ the American Federation
of Labor, as the exclusive representative of all its employees in its
street railway division, excluding foremen, clerks, inspectors, and
supervisors, in respect to rates of pay, wages, hours of employment,
and other conditions of employment;
(b) Withdraw all recognition from Tampa Electric Benefit Associa-
tion 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 em-
ployment, and completely disestablish said Association as such
representative;
(c) Post immediately in conspicuous places at its offices, car barn,
and shops, in Tampa, Florida, and maintain for a period of at least
sixty (60) consecutive days from the date of posting, notices to its
employees, stating: (1) that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraphs 1
(a), (b), (c), and (d) of this Order; and (2) that the respondent will
take the affirmative action set forth in paragraphs 2 (a) and (b) of
this Order;
TAMPA ELECTRIC COMPANY 1277
(d) Notify the Regional Director for the Tenth Region in writing,
within ten , (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
INTERMEDIATE REPORT
Mr. T. Lowry Whittaker, for the Board.
Mr. Sam Bucklew and Mr. Francis J. Gannon, of Tampa, Fla., for the respond-
ent.
Mr. W. E. Whitt, of Atlanta, Ga., and Mr. W. 0. Frazier, of Miami, Fla., for the
Union.
Mr. L. A. Grayson, Mr. Ray C. Brown, and Mr. Chester Kurtz, of Tampa, Fla.,
for the Association.
STATEMENT OF THE CASE
Upon a second amended charge filed January 17, 1944, by the Amalgamated
Association of Street, Electric Railway and Motor Coach Employees of America,
Division No. 1344, A. F. of L., herein called the Union, the National Labor Re-
lations Board, herein called the Board, by its Regional Director for the Tenth
Region (Atlanta, Georgia), issued its complaint, dated January 19, 1944, against
Tampa Electric Company, herein called the respondent, alleging that the respond-
end had engaged in and was engaging in unfair labor practices affecting com-
merce within the meaning of Section 8 (1), (2) and ( 5)„and Section 2 (6) and
(7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act.
Copies of the complaint and notice of hearing thereon were duly served upon the
respondent, the Union and Tampa Electric Benefit Association, herein called
the Association.
On February 3, 1944, the Association filed with the Regional Director a Petition
for Intervention, and on the following day the Regional Director issued an order,
granting the petition. Thereafter the respondent and the Association each filed
its respective answer to the complaint.
With respect to the unfair labor practices the complaint alleges, in substance :
(1) that the respondent in about 1920 initiated and promoted the Association
and since then has dominated, contributed to the support of and interfered with
its administration, said Association being a labor organization within the meaning
of Section 2 (5) of the Act; (2) that since on or about November 15, 1943, the
respondent has refused to recognize and to bargain with the Union as the ex-
clusive representative of its employees in an appropriate unit, said unit consisting
of all railway employees of the respondent in its transportation department,
mechanical department, track department and trolley crew, excluding supervisors,
foremen, assistant foremen, trainmasters, dispatchers, inspectors and clerks ; (3)
that since September 1943, the respondent, by certain named officials and super-
visors, (a) made statements discouraging membership and activity in the Union,
(b) fostered and encouraged the circulation and signing of an anti-Union petition
on its time and premises and thereafter recognized a committee of the petition-
ers, (c) queried its employees as to their Union affiliations, (d) disparaged the
Union and urged its employees to cease agitation for the Union, and (e) threat-
ened employees that unless they withdrew from the Union they would be laid
off after the war; (4) that by the aforementioned acts the respondent caused its
employees to go on strike from November 16 to 20, 1943; and (5) that by these
acts the respondent has interfered with, restrained, and coerced its employees in
the exercise of the rights guaranteed in Section 7 of the Act.
587784-45-vol. 56-82
1278 DECISIONS ,OF- -NATIONAL LABOR RELATIONS BOARD
In their answers, both the respondent and the Association denied that the
Tampa Electric Benefit Association is and has been a labor organization within
the meaning of Section 2 (5) of the Act, and that it has . ever bargained with
the respondent regarding wages, rates of pay, and hours of employment. The
respondent denies, in its answer, that the Union is the exclusive representative
of all of the employees in the transportation department, and further denies that
it engaged in any of the unfair labor practices alleged in the complaint.
Pursuant to notice, a hearing was held in Tampa, Florida, on February 10, 11,
12, 14, 15, 16, 17 and 18, 1944, before the undersigned Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Board, the respondent and the Asso-
ciation were represented by counsel, the Union by an International Representa-
tive. All parties participated in the hearing and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing upon the issues.
At the conclusion of presentation of evidence by the Board the respondent
moved for dismissal of the complaint in its entirety, and the Association for dis-
missal of such allegations as affect it. Both motions were denied. Following the
receipt of all evidence, the same motions were renewed, and ruling was reserved.
The motions are now denied. Also at the close of the hearing all counsel joined
in a motion, which was granted, to conform the pleadings to the proof in minor
particulars.
Following the receipt of all evidence and testimony, counsel for the Board, the
respondent, and the Association argued orally before the Trial Examiner, the
arguments appearing in the official transcript of the proceedings. All parties
have waived the privilege of filing briefs with the Trial Examiner.
Upon the entire record in the case and from his observation of the witnesses,
the Trial Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Tampa Electric Company is. a Florida corporation engaged in the production,
sale and distribution of electric light and power, the operation of a street railway
system, the pumping and distribution of water, and the production and sale of
ice. It has authorized capital stock of 600,000 shares of common, no par value,
and 10,000 shares of preferred stock, $100.00 par value per share. Its principal
office is in Tampa, Florida.
The respondent's power plant, located in Tampa, is of 42,500 kilowatts capa-
city. The power plant is steam operated, burning oil. For the production of
its power, the respondent annually purchases about 700,000 barrels of oil, valued
at about $1,000,000; all of which originates outside of the State of Florida.
Under requirements of the Federal Government the respondent's power lines
are "tied in" with other electric power companies in Florida, including the
American Agricultural -Chemical Company, the municipal power plant at Lake-
land, Florida, and the Florida Power Corporation, companies which, in turn,
are tied in with others whose power lines extend across the State line of
Florida. The respondent supplies electric power to many United States Army
camps, including Drew Field, MacDill Field, Hillsborough County Field ; to the
United States Navy Receiving Stations in Tampa; to the United- States Coast
Guard on Davis Island ; to the Tampa Shipyards and McCloskey & Company,
both shipbuilding companies ; to Bushnell-Lyons, engaged in making lighters for
the United States Army, and to the Hendry Corporation, producing barges. The
TAMPA ELECTRIC COMPANY 1279
respondent also furnishes electric power to two radio stations in Tampa, WDAE
and WFLA ; Tampa airports, the Union railroad station serving the Atlantic
Coastline and the Seaboard Air Line railways, and Western Union.
The respondent's street railway system, operated by electricity produced by
the respondent, serves the City of Tampa and contiguous territory, with about
55 miles of track. It owns and operates about 100 cars, 85 of which are pas-
senger cars. During 1943 the respondent purchased materials, for operation
of the street railway, including rails and other supplies, valued at about $54,000.
Of this total, materials valued at about $43,000 originated outside Florida. Also
in 1943 street cars operated by the respondent carried about 22,450,000 passen-
gers, excluding transfers. The respondent transports many thousands of war
workers. During the week of February 7 to 13, according to an estimate of
the respondent's vice-president, about 88,000 workers were transported to three
Tampa shipbuilding copcerns. The respondent's street cars, in normal times,
meet ocean and coastal steamship lines. They transport passengers to and
from the Union railroad station. During 1943 the respondent received $4,699.29
In revenue from the sale of street car advertising, of which from one-half to
two-thirds was for nationally advertised products.
According to the respondent's annual report of 1942, during that year it
received a total of $5,734,841 in operating revenue. During the same period
its street car system produced revenue of about $810,000; its power system
about $4,770,000 ; its ice plants about $97,000; and its water systems about
$57,000.
The respondent -admits, in its answer, that it transports passengers whose
work is essential to commercial, industrial and transportation enterprises which
are engaged in interstate or foreign commerce, and that it also furnishes electric
power to such enterprises. In its answer it also admits that its operations have
a close relation to trade, traffic and commerce among the several States.
IT. THE ORGANIZATIONS INVOLVED
Amalgamated Association of Street, Electric Railway and Motor Coach Em-
ployees of America, Division No. 1344, A. F. of L., and Tampa Electric Benefit
Association, unaffiliated, are labor organizations admitting to membership em-
ployees of the respondent in its street railway department.
M. THE UNFAIR LABOR PRACTICES
A. Background; the respondent's expressed hostility toward unions in the past;
the origin, purpose and function of the Association
1. The respondent's operational set-up
The respondent's executive officers are Peter O. Knight, president and founder ;
Francis J. Gannon, vice-president and manager ; and Alanson R. Hathaway,
secretary and treasurer. As noted in Section I above, the respondent's business
is divided into four different divisions. Only the employees of its street railway
division are involved in this proceeding.
The street railway division itself is roughly divided into four interrelated de-
partments : operating or transportation, maintenance or shop, track maintenance,
and trolley line maintenance. About 235 employees are normally employed in
the street railway division. James E. Sheridan is Superintendent of Railway
Operations.
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Purposes and function of the Association before passage of the Act in. 1935
The Benefit Association was organized in 1901. According to its constitution
its .purposes are as follows :
1. The first object of the Association shall be the relief of its members in
case of sickness, injury or disability which may unfit them for their daily
labor, and to provide benefits in case of death.
2. The second object shall be to promote the best conduct of the business of
the Tampa Electric Company for the mutual advantage of the Association
and the Company, and to provide co-operation and good fellowship among its
members.
While there is no evidence that the Association or its committees have ever
sought to be recognized as the collective bargaining agent for any of the re-
spondent's employees, undisputed testimony reveals that at various times before
passage of the Act the respondent, through its president, created the impression
among employees that the Association should be considered by them as an inside
labor organization and that the respondent would not deal with an outside union.
Thus, for example, at a general meeting of the Association in 1926, Knight told
the employees that "before he would see these street cars operated by union
labor he would see them run into the Hillsborough River." Again, in 1933, about
the time the NIRA was introduced, Knight convened all employees and told them,
according to the uncontradicted testimony of P. W. Schaibly,
. . . that the employees should be very grateful to have.a job and that the
NRA was just a temporary measure, and possibly would not last more than
two or three months, and that he did not want anybody working for him
who was not satisfied with conditions at the Tampa Electric Company as
they were and if they were not satisfied that they could quit ; that he would
not tolerate anybody interfering in regards to organized labor ; that it was
a big family and the employees were, each one was one of a family and they
had the Benefit Association which was their form of a union, and that he did
not want any interference from any outsider. [Italics supplied.]
B. The respondent's domination of and interference with administration of the
the Association
1. Financial and other support
The purposes of the Association have remained the same since its beginning.
Membership in it is voluntary, officers and supervisors as well as employees in
all of the respondent's divisions are eligible to membership. Gannon and Sheri-
dan are members. Many supervisors have served, and are now serving, on its
Board of Directors. Monthly membership dues vary between $1 and $2, de-
pending upon the state of the treasury. By agreement the respondent contributes
at least 50 cents a month for each member enrolled. In addition, the respondent
has contributed several hundreds of dollars on various occasions to the Asso-
ciation in order to care for unusual relief expenses.
2. The respondent's use of the Association as a bargaining agency in 1942
During the summer of 1942 a self-appointed committee of car operators went
to management seeking higher wages. A number of meetings were held with
Sheridan and Gannon. At one of the meetings three Association directors, repre-
senting the transportation department, were also present, having been summoned
TAMPA ELECTRIC COMPANY 1281
by Gannon. While it does not appear that these directors participated actively
in the wage discussion, they were consulted by management as to an offer made
by the respondent to share the expense of operator 's uniforms . At a later meet-
ing of the self-appointed committee, the three Association directors, and Sheridan,
the question arose as to whether or not the operators should elect another com-
mittee, to replace the self-appointed committee, for the continuance of negotia-
tions on the wage increase. Sheridan replied that no other committee was
necessary, that the Benefit Association committee could take care of such mat-
ters. Sheridan also told the members of the self-appointed group that he could
not take any more time with them, that the Benefit Association directors had
been elected to represent the transportation men, and that thereafter he would
deal with, them.
There is no evidence that after the above-described meetings any of the Asso-
ciation directors , voluntarily or upon management 's instructions , discussed wage
Increases or other working conditions with the respondent ' s officers. -
Conclusions as to the Association
The Trial Examiner concludes and finds that the Association is a labor organiza-
tion within the meaning of the Act.' This finding is supported (1) by the Asso-
ciation 's constitutional object:
to promote the best conduct of the business of the Tampa Electric Company
for the mutual adairtagebf-the Association: and the Company, and to provide
co-operation and good fellowship among its members'
(2) by the failure of the respondent after passage of the Act in 1935 to disavow
Knight's statement to all employees in 1933 that :
they had the Benefit Association which was their form of a union
(3), by the participation of Association directors, in 1942, in wage and uniform
expense negotiations, and (4) by Sheridan's instructions to the self-appointed
committee and the Association directors that the latter had been elected to
represent employees in the transportation department and that thereafter he
would deal with them.
It is undisputed that the Association depends in large part upon the financial
support of the respondent. Section 4 of Article 2 of the Association's by-laws
provides that :
No payments shall be made from the funds of the Association until approved
by the manager of the Tampa Electric Company.
Since it is clear that the major function of the Association is that of providing
financial relief to its members, and that the respondent, by its agreement and by
the above-quoted provision in the by-laws, effectively controls that function, it
follows that the respondent dominates the administration of the Association.
'Section 2 ( 5) of the Act states: The term "labor organization" means any organiza-
tion 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 employers concerning grievances , labor disputes , wages, rates of pay , hours of
employment, or conditions of work.
2In the Matter of C. Nelson Manufacturing Company, 15 N. L. R. B. 1073, [ enforced
by the Circuit Court of Appeals, 120 F. (2d) 444 (C. C. A. 8) ] the Board found that Nelson's
Employees ' Council to be a labor organization because one of its constitutional purposes
was: "the development of the spirit of cooperation and mutual understanding by estab-
lishing an orderly method by which employees may present to the Company their views and
recommendations on all questions of company policy with particular reference to health,
safety, recreation , education , and other similar matters of mutual interest."
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is therefore found that the respondent has dominated and interfered with the
administration of the Association, has given financial and other support to it,
and that the respondent has thereby interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed to them in Section 7 of the Act
B. The respondent's refusal to bargain with the Union; and related acts of
interference, restraint and coercion
1. Organizing drive of the Union in 1943, early negotiations
While some employees of the respondent had previously joined the Union,
an intensive drive was begun in August, 1943, to obtain members among all
four departments of the street railway division. Employee leadership in this
campaign was assumed by night switchman Gustavo Velasco. In a short time
he obtained signatures to between 130 and 140,Union application cards.
'In mid-September Organizer W. L. Craven called upon Gannon, and informed
him that the Union represented about 80 percent of the street railway division
employees and that he desired to obtain recognition and begin negotiations look-
ing toward a contract. Gannon asked for a little time to think it over, and the
request for delay was granted.
On September 29 Craven again visited Gannon, together with W. A. McAlister,
a Commissioner of the U. S. Conciliation Service, Department of Labor. At this
conference were discussed methods of satisfying Gannon's doubts that the Union
did, in fact, represent a majority of the employees in the division. Gannon
decided that he preferred to have a cross-cheek made of the Union application
cards with payroll checks, instead of holding an election. An agreement was
then entered into, the text of which appears below :
AGREEMENT
IT IS HEREBY AGREED Between the TAMPA ELECTRIC COMPANY of Tampa,
Florida, and the AMALGAMATED ASSOCIATION OF STREET ELECTRIC RAILWAY
AND MOTOR COACH EMPLOYEES OF AMERICA, Local No. 1344, Tampa, Florida,
that Commissioner W. A. McAlister, of the U. S. Conciliation Service, Depart-
ment of Labor, Washington, D. C., shall make a cross check checking the
signatures on the membership cards against the signatures on the cancelled
checks to determine whether or not the Union represents a majority of
the employees employed in the Transportation Department' of the Company
for the purpose of collective bargaining, namely, all operators, men and
women, maintenance-men employed in the shop, track men and trolley crew.
Both parties have agreed to use the payroll of September 15, 1943.
IN WITNESS WHEREOF The parties have hereunto set their hands and seals
this 29th day of September, 1943.
The agreement was signed by Gannon and Craven, with McAlister witnessing
their signatures.
2. The cross-check of September 30, 1943
In accordance with the agreement, Secretary-Treasurer Hathaway then gave
to McAlister the pay-roll list of September 15, omitting or scratching the names
of foremen, clerks, inspectors and supervisors who, also by agreement, were
,8 In the section "The remedy", hereinafter, It will be specifically pointed out that the
relief and benefit features of the Association are to be in no way disturbed by recom-
mendations that it be disestablished as a labor organization.
4 The evidence is clear that the term "transportation department " here refers to the
street railway division, including operators, shopmen, maintenance and trackmen, as
heretofore described.
TAMPA ELECTRIC COMPANY -1283
not to be included in the unit, as well as cancelled pay checks . The Union,
through Velasco , turned over to McAlister all of the membership application cards
which had been received by it up to that time.
On October 1, McAlister filed with the parties his report on the cross -check.
Its text reads as follows :
Pursuant to mutual agreement reached between representatives of the
Tampa Electric Company, Tampa, Florida , and representatives of the
Amalgamated Association of Street Electric Railway and Motor Coach Em-
ployees of America, Local No . 1344 Tampa, Florida, affiliated with American
Federation of Labor, Commissioner W. A. McAlister , United States Concilia-
tion Service , Department of Labor, conducted a cross-check today , September
30, 1943, at Tampa, Florida.
Total number of employees ' signatrres appearing on pay rolls
furnished by-------------------------------------------------- 201
Total number of cancelled checks furnished by Company ----------- 201
Total umber of signed Union Authorization Cards matching sig
natuues of cancelled checks----------------------------------- 103
Number of signatures appearing on cancelled checks with no Union
Authorization Cards to match--------------------------------- 90
Number of signatures appearing on checks and pay-roll not included
in cross-check by agreement between the Union and Company__-_ 8
I certify that the foregoing Count and Tabulation of the Cross -Check is
true and correct.
Signed [s] W. A. MCALrsTE$
3. Negotiations following the cross-check
On October 4 Union representatives and Gannon began negotiations which ex-
tended over a period of several weeks. On that day Gannon was presented with a
proposed contract. He asked for and was granted a delay of two or three weeks
to consider its provisions. On October 8 Gannon signed a statement agreeing
that:
whatever is finally decided in connection with the agreement they have presented
to me today in connection with wages , hours worked, etc. for the Transportation
Department of Tampa Electric Company, will become effective on October 16, 1943.
The parties again convened on October 25, and during the next five days
negotiated changes in the proposed contract . On October 29, at the suggestion
of Special Organizer W. O. Frazier , Gannon agreed to have typed such provisions
as had been agreed upon . The document was thereupon typed in Gannon's office.
It contained , among many other provisions agreed upon by the parties, the
following :
SECTION I . The Company recognizes the party of the second part (the
Union ) as the representative of its members, and agrees to bargain with it
as the sole collective bargaining agent on behalf of the Company 's street car
operators and maintenance men, car house men, trackman and line crew
with respect to the various conditions and phases of their employment in-
sofar as they may be covered by the provisions of this agreement , and the
Company makes this agreement with that understanding herein expressed.
F'razipr asked Gannon to, sign the agreement , as thus far completed . Gannon
replied that he had no authority to do so, but would have to submit it to the
respondent 's Board of Directors . Frazier protested that they had granted him
several delays, and asked why he and other Union representatives had not
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
been advised before that Gannon had no authority to sign the contract which
he had negotiated. Gannon insisted, however, that he would have to take the
contract to Boston, Massachusetts, for the directors'. approval, pointing out that
the Union was protected by the retroactive agreement he had already signed.
Frazier asked him if he actually wanted the delay to go to Boston or in order
to break up the Union. Gannon countered, according to Frazier's undisputed
testimony, "You talked to get them in and I should have the right to talk to
get them out."
Gannon told Frazier, on this occasion, that he would get in touch with the
Union, according to his own testimony, " as soon as I heard anything within
two weeks." Although on November 2 or 3, Gannon was informed by Knight
that it would be unnecessary to submit the contract to the Board of Directors,
Gannon did not communicate this fact to Union representatives.
4. Anti-Union conduct by supervisors ; the anti-Union petition
In October, Inspector Majeski told Operator Owen C. Bush that he had
heard he had joined the Union, that he should not have done so, and that the
Union would never get them anywhere.' At about the same time Trainmaster
Scott and Inspector Johnson, on different occasions, told employee Frank E.
Fisher that the company would take care of those who did not join the Union'
During the same month Inspector Johnson boarded a car operated by Gladys
B. Whigham and said that he had heard one of the women had joined the
Union. Whigham, who had joined, declared that so long as her work was
satisfactory she believed she could belong to whatever she wanted to, since
it was a free country. Johnson replied, "That is what you think."'
Within a day or two after the conference of October 29, there appeared at
the car barn office an anti-Union petition, bearing the following text :
Hon. Peter O. Knight, F. J. Gannon : We the undersign agree not to
join any Labor Organization, unless its required by the Company officials.
We also agree that in case of any dispute that we will form our committee
as we have in the past and go to the Company officials for a settlement and
will not rebel against the Company at any time.
The petition was drawn up, according to his testimony, by T. E. Sullivan,
classified as an operator but whose major duties are confined to an office shared
with Trainmaster Thomas Russell, whose place he takes for an hour each
evening. Sullivan also reads registers and relieves Harry Cunningham, Jr.,
Sheridan's private secretary. Sullivan admitted that he prepared the petition
on an office typewriter, and that he solicited signatures to it, among operators
only, on company time and property. Russell admitted that he observed Sulli-
van doing so, but did not stop or report him. After Sullivan had drawn up the
text of the petition, Inspector Majeski read it aloud to a few operators then in
the wash room at the car barn. Although Majeski denied having asked any
employee to sign, he admitted that he told at least one employee that he would
sign it himself if he could. Cunningham also denied seeking signatures to the
petition, but admitted that, having been given permission by Sheridan to express
his anti-Union views, of which Sheridan was aware, he thereafter told employees
that he didn't care for the Union and would not join.
5 The finding is based upon the uncontradicted testimony of Bush.
6 Although both were witnesses , neither Johnson nor Scott denied making the remark
attributed to them by Fisher.
7 Whigham's testimony as to this incident is unrefuted.
TAMPA ELECTRIC COMPANY 1285
While circumstances surrounding the sudden appearance of this petition, par-
ticularly Gannon's frank statement on October 29 that he intended to talk em-
ployees out of the Union, cast grave doubt upon the respondent's denial that it
instigated its preparation, the Trial Examiner considers it unnecessary to deter-
mine this point. It is plain that Sullivan, who acts as trainmaster and relieves
Sheridan 's private secretary , is in a position more closely allied with management,
in the reasonable estimate of employees generally, than with themselves. The
respondent admits that Russell and Majeski hold supervisory positions. The
Trial Examiner finds that by the conduct of Sullivan, Russell, Majeski and Cun-
ningham, the respondent gave open approval and support to the circulation of
the anti-Union petition.
Having obtained about 70 signatures to the petition among car operators, Sulli-
van and two other employees went to Gannon on November 12. According to his
own testimony, Gannon "thanked them very much for it," and promptly granted
a request then made by them for 10 cents per hour increase in wages for all
operators, as well as for certain vacation privileges. The same day Gannon ob-
tained approval of his action from Knight, and a form seeking approval of the
War Labor Board for the increase was mailed.
5. The strike of November 16
On November 10, two days before granting the request of the "petitioners' "
committee, Frazier telephoned to Gannon and asked about the status of the
contract. Gannon told Frazier that he was "stymied", having received a letter
from the Board's Regional Office that the Union had filed charges alleging that
the respondent had engaged in unfair labor practices by circulating the anti-
'Union petition.
On November 15 W. E. Whitt, International Representative of the Union
who had relieved Craven in this territory, together with a committee of Union
officers, called upon Gannon, and advised him that they wished to complete
negotiations. Gannon replied that he could deal no further with.the Union be-
cause it had filed charges, and because he doubted the Union's majority in view
of the petition. Whitt asked Gannon if he would, at least, sign a notice to
the.employees informing them that the Union was the exclusive bargaining
agent. This Gannon refused to do, until approved by Knight. He agreed to_sub-
mit the proposed bulletin to Knight that afternoon but, according to his testi-
mony, was unable to interview him. At the conference that, day Gannon was
warned by D. C. Ables, vice-president of the Union, that the employees were
becoming resentful and that it was proving hard to "hold them in line."
On the evening of November 16 the shopmen began leaving their jobs. On
,the following day, according to Gannon's testimony, more than half of the
car operators did not take their cars out. They were joined in the strike by shop-
men, track employees and the trolley line crew. -
During the strike Union officials and McAlister met with both Gannon and
Knight. Both of the respondent's officers refused to negotiate while the strike
was on. Knight referred to the "happy family" of the preceding fifty years,
and declared that he would not enter into a contract that would slap 70-odd loyal
employees "in the face."
Wires were received by the Union from the U. S. Conciliation Service and
from the War Labor Board , urging that the strike be called off. On November 1g
the employees voted to return to work , and did so the following day.
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. Events following the strike
The dispute was referred to the War Labor Board, which thereafter held a
panel hearing in Tampa. On December 21 the panel issued its report which
contains, among others, the following recommendations :
that the union has been properly certified as the sole bargaining agent
of the employees in this unit, and is entitled to recognition as such.
.. . that the draft of the proposed agreement between the parties . . . be
determined to be binding and effective at a day certain, ... to be fixed by
the Board, preferably under date of October 30, 1943. .
The respondent has not complied with the panel's recommendations
7. Conclusions as to the refusal to bargain
(a) The appropriate unit
As noted above, on September 29, the Union and the respondent agreed that
an appropriate unit for collective bargaining consisted of all employees in the
street railway division, excluding foremen, clerks, inspectors. and supervisors.
No evidence was submitted at the hearing by any party tending to show the in-
appropriateness of this unit .8
In view of the above facts, the Trial Examiner concludes and finds that all
employees in the respondent's, street railway division, excluding foremen, clerks,
inspectors and supervisors, at all times material herein constituted, and now
constitute, a unit appropriate for the purposes of collective bargaining and that
said unit insures to employees of the respondent the full benefit of their rights to
self organization and to collective bargaining and otherwise effectuates the
policies of the Act.
(b) The majority representation by the Union
As has been found above, the respondent selected and agreed to the cross-check
method of determining whether or not the Union represented a majority of the
employees in the appropriate unit. Commissioner McAlister performed " the
cross-check, and certified its results to the parties. His report establishes the
fact that on September 30 the Union did, in fact, represent a majority in the
agreed-upon unit! At the hearing, Gannon admitted that he has never challenged
the accuracy of McAlister's report.
Therefore it is found that on September 30, 1943, and at all times there-
after, the Union was the duly designated representative of a majority of the
employees of the respondent in the appropriate unit and that, by virtue of
Section 9 (a) of the Act, the Union was on September 30, 1943, and at all
times thereafter has been, the exclusive representative of all employees in
8 Some evidence was introduced at the hearing raising questions as to whether or not
certain individuals fell within excluded classifications.
9 At the hearing the pay-roll list of September 15 and the Union application cards used
by McAlister in his cross-check were submitted in evidence by counsel for the Board. The
respondent challenged a number of cards on various grounds , in some cases because the
cards bore no date and in others because they bore a cross and the name written in by
another employee. Counsel for the Board thereupon called witnesses who established by
competent testimony the validity of each of the cards questioned'by the respondent and
that all of them were in McAlister's possession at the time of the check-off. Also during
the hearing counsel for the Board and for the respondent voiced conflicting claims as to
the propriety of including certain working foremen and others within the unit. Resolving
each of them in favor of the respondent, a check of the pay-roll list and the cards neverthe-
less reveals that on September 30, 1943, of a total of 193 employees in the agreed upon
unit the Union had application cards for 106, and thus represented a clear majority.
TAMPA ELECTRIC COMPANY : 1287
such unit for the purposes of collective bargaining with respect to rates, pay,
wages , hours of employment and other conditions of employment.
(c) The refusal to bargain
By dealing with the committee of transportation employees, on November
12, concerning matters relating to wages and working conditions, the respond-
ent openly violated its legal obligation to recognize the Union as the exclusive
bargaining agent. By - refusing, on November 15, to execute the contract al-
ready agreed upon or to post a notice informing employees that it recognized
the Union as the exclusive bargaining agent, and by refusing to negotiate
with the Union during the strike the respondent continued its refusal to
bargain.
In its answer and at the hearing the respondent contends that it has doubts
as to the majority representation of the Union, and demands an election.
This contention is without merit 10 The cross-check, which was of the re-
spondent's own choosing, established that the Union did, in fact, represent a
majority, and the respondent thereafter raised no question on the point until
the circulation of the anti-Union petition which, as found above, was accom-
plished with the respondent's support and approval after Gannon had admitted
to officials of the Union that he intended to talk employees out of it.
The Trial Examiner concludes and finds that the respondent, on November
12, 1943 and at all times thereafter, has refused to bargain with the Union
as the exclusive representative of its employees in an appropriate unit.
Conclusions as to interference, restraint and coercion
The Trial Examiner concludes and finds that, by the conduct of Sullivan,
Russell, Majeski and Cunningham with relation to the petition, by the anti-
Union remarks of Majeski, Scott and Johnson, and by its refusal to bargain
with the Union as the exclusive representative of its employees in the trans-
portation division, the respondent has interfered with, restrained, and coerced
its employees in the exercise of rights guaranteed to them by Section 7 of
the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above, occurring
in connection with the operations of the respondent described in Section I
above, have a close, intimate, and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to labor disputes burden-
ing and obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the respondent has engaged in certain unfair labor
practices, the Trial Examiner will recommend that it cease and desist there-
from and take certain affirmative action designed to effectuate the policies
of the Act.
It has been found that the respondent has dominated and interfered with
the administration of the Association and has contributed support thereto.
10 The respondent also contends, in effect, that it may not be required to bargain with
the Union because that organization has failed to comply with provisions of a Florida
law. The Trial Examiner has considered it unnecessary here to determine whether or
not such provisions have been complied with. The contention is without merit, in any
event.
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, in order to effectuate the policies of the Act, to restore to the
employees, the full' measure of their rights guaranteed under the Act, and to
free them from the domination and interference, and the effects thereof, which
constitute a continuing obstacle to the exercise by the employees of the rights
guaranteed them 'by the Act, it will be recommended that the respondent
withdraw all recognition from the Association as the representative of any
of its employees for the purpose of dealing with the respondent concerning
grievances, labor disputes, rates of pay, wages, hours of employment, or
conditions of work, and to disestablish it as such representative.
Reference has been made herein to the relief and benefit functions of the
Association. The recommendation to disestablish the Association as a col-
lective bargaining representative is not intended to interfere with any such
activities, provided they are divorced from functioning in connection with any
labor organization and are continued without discrimination against or in
favor of any labor organization.11
It has been found that the respondent has refused to bargain collectively
with the Union as the exclusive representative of its employees in an appro-
priate unit. It accordingly will be recommended that the respondent, upon
request bargain collectively with the Union.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. Amalgamated Association of Street, Electric Railway and Motor Coach Em-
ployees of America, Division No. 1344, A. F. of L., and Tampa Electric Benefit
Association are labor organizations within the meaning of Section 2 (5) of the
Act.
2. All employees in the respondent's street railway division, excluding foremen,
clerks, inspectors and supervisors, at all times material herein constituted, and
now constitute, a unit appropriate for the purpose of collective bargaining, within
the meaning of Section 9 (b) of the Act. -
3. Amalgamated Association of Street, Electric Railway and Motor Coach Em-
ployees of America, Division No. 1344, A. F. of L., was on September 30, 1943
and at all times thereafter has been the exclusive representative of all the em-
ployees in the aforesaid unit, for the purposes of collective bargaining within
the meaning of Section 9 (a) of the Act.
4. By refusing, on November 12, 1943, and at all times thereafter, to bargain
collectively with Amalgamated Association of Street, Electric Railway and Motor
Coach Employees of America, Division No. 1344, A. F. of L., as the exclusive
representative of its employees in the aforesaid appropriate unit, the respondent
has engaged in and is engaging in unfair labor practices within the meaning of
Section 8 (5) of the Act.
5. By dominating and interfering with the administration of the Tampa Elec-
tric Benefit Association, and contributing support to it, . the respondent has en-
gaged in and is engaging in unfair labor practices within the meaning of Section
8 (2) of the Act.
11 See In the Matter of Bethlehem Steel Corporation, 14 N. L. R. B. 630, [enforced by Cir-
cuit Court of Appeals, 120 F. (2d) 641 (App. D. C.) ] See also report of Senate Com-
mittee on Education and Labor (Report No. 573) on Senate Bill 1958, 74th Congress, 1st
Session (enacted as the National Labor Relations Act.) "Nor does anything in the bill
interfere with the freedom of employers to establish pension benefits, outing clubs, recrea-
tional societies, and the like, so long as such organizations do not extend their functions
to the field of collective bargaining, and so long as they are not used as a covert means of
discriminating against or in favor of membership in any labor organization."
TAMPA ELECTRIC COMPANY 1289
6. In 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.
7. The aforesaid unfair labor practices' are unfair -labor practices affecting
commerce, within the meaning of Section 2 (6). ahd (7) of the Act.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions' of law, the
Trial Examiner recommends that the respondent, Tampa Electric Company, its
officers, agents, successors ; and assigns ' shall :
I. Cease and desist from :
- (a) Refusing to bargain collectively with Amalgamated Association of Street,
Electric Railway and -Motor Coach Employees of America, Division No. 1344,
A. F. of L., as the exclusive representative of its employees- in the aforesaid
appropriate unit ; -
(b) Dominating, or interfering with the administration of the Association, or
with the formation or administration of any other labor organization of, its em-
ployees, and from recognizing the said Association as the representative of any
of its employees for the purposes of dealing with it concerning grievances, labor
disputes , wages, rates of pay, hours of employment, or other conditions of work;
(c) Engaging in any like,or related acts or conduct interfering with, restrain-
ing or coercing its employees in the exercise of the right to self-organization, to
form, join or assist labor organizations, to bargain collectively through•represen-
tatives 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 Sec-
tion 7 of the Act.
2. Take the following affirmative action which the Trial Examiner finds wdll
effectuate the policies of the Act ;
(a) Upon' request, bargain collectively with Amalgamated Association -of
Street, Electric Railway and Motor Coach Employees of America, Division No.
1344, A F. of L., as the exclusive representative of all its employees in its street
railway division, excluding foremen, clerks, inspectors and supervisors ;
(b) Withdraw all recognition from the Association 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 condi-
tions of work, and "completely disestablish the Association as such representative ;
(c) Post immediately in conspicuous places at its offices , car barn and shops,`
in Tampa, Florida, and maintain for a period of at least sixty' (60) consecutive
days from the date of posting, notices to its employees stating: (1) that the
respondent will not engage in the conduct from which it is recommended that it
cease and desist in paragraph 1 (a), (b) and (c) of these recommendations; and
,(2) that the respondent will take the affirmative action set forth in paragraph
2 (a) and (b) of these recommendations;
(d) File with the Regional Director for the Tenth Region on or before ten (10)
days from the date of the receipt of this Intermediate Report, a report in wilting
setting forth in detail the manner and form in which the respondent has complied
with the foregoing recommendations.
It is further recommended that unless on or before ten (10) days from the date
of the receipt of this Intermediate Report, the respondent notifies the said
Regional Director in writing that it will comply with the foregoing recommenda-
tions, the National Labor Relations Board issue an order requiring the respondent
to take the action aforesaid
I
1290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As provided, in Section 33 -of Article II of the Rules and Regulations of the
National Labor Relations Board, series 3, effective November 26,, 1943, any party
or counsel foi, 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, Wash-
ington, 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. Im=
mediately upon the filing of such statement of exceptions 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 in writing within ten (10) days
from the date of the order transferring the case to the Board.
C W. WHITrEMORE,,
Trial Examiner.
Dated March 10, 1944.