El Paso Electric Co.

In the Matter of ' EL PASO ELECTRIC COMPANY mid AMALGAMATED ASSOCIATION STREET, ELECTRIC RAILWAY AND MOTOR COACH EM- PLOYEES OF AMERICA, DIVISION 1256 Case No. R-5014.-Decided April 30, 1943 Brown d Brooke by Volney M. Brown and Mr. J. C: Brooke, of El Paso, Tex., for the Company. Mr. W. C. Roche, Mr. George F. Webber, Mr. E. D. Penn, and Mr. Fred A. Hoover, of El Paso, Tex., for the Amalgamated. 'Mr. J. L. Rasberry, of El Paso, Tex., for the Utility Workers. Mr. William C. Baisinger, Jr., of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon petition duly filed by Amalgamated Association Street, Elec- tric Railway and Motor Coach Employees of America, Division 1256, herein called the Amalgamated, alleging that a question affecting commerce had arisen concerning the representation of employees of El Paso Electric Company, El Paso, Texas, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Henry J. Kent, Trial Examiner. Said hearing was held at El Paso, Texas, on March 11,,13, 15, and 16, 1943. The Company, the Amalgamated, and Utility Workers Union, Inc., herein called the Utility Workers, appeared, participated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses,. and to introduce evidence bearing upon the issues. The Trial Examiner's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. All parties filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following : 49 N. L. R. B., No. 42. 351 L 352 DECISIONS OF NATIONAL LABOR 'RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY - El Paso Electric Company is a Texas' corporation engaged in the production, distribution, and sale of electricity and in the operation of a street railway and bus system in El Paso, Texas, and vicinity. The Company's electric ' system serves an area in Texas and New Mexico of approximately 700 square_miles, including the city of El Paso, Texas, Las Cruces, New Mexico, and 49 small towns and settle- ments. The Company also operates the street railway system owned by the El Paso and Juarez Traction Company which serves Juarez; Mexico. The Company and the El Paso and Juarez Traction Com- pany also jointly own and operate 2 international toll bridges over the Rio Grande River, between El Paso and Juarez. The Company's gross operating revenue for the year 1942 amounted to $4,433,496, of which $353,546 was derived from sales to customers in the State of New Mexico. The Company admits thdt it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED Amalgamated Association Street, Electric Railway and Motor Coach Employees of America, Division 1256, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. I Utility Workers Union, Inc., is an unaffiliated labor organization, admitting to membership employees of the Company. III. THE ALLEGED QUESTION CONCERNING REPRESENTATION On January 9, 1941, the Utility Workers and the Company entered into a collective bargaining, contract covering all non-supervisory employees of the Company. The contract contains the following termination clauses : This agreement shall take effect January 9, 1941, and shall remain in effect for a period of one year from and after such date, and from year to year thereafter unless superseded by other con- tracts or changed or terminated in -the manner Thereinafter provided.' Either party desiring changes in this agreement or.termination thereof, shall notify the other party in writing on or before De- cember 1, of any year. The January 9,1941, contract was supplemented by written agreement of the parties on December 29, 1941, and amended in certain respects EL PASO ELECTRIC COMPANY 353 as of September 1, 1942. ' However, the original termination clauses have never been modified or changed and neither the Company nor the Utility Workers gave notice of a desire to terminate. or modify the contract prior to December 1, 1942. It appears'that the Amalgamated orally requested the Company to recognize it as the exclusive bargaining representative of certain of the Company's employees sometime in June 1942. The Company refused to so recognize the Amalgamated because of the existence of thetcon- tract between the Company and the Utility Workers. By letter dated December 15, 1942, the Amalgamated again requested the Company to recognize it as the exclusive bargaining representative of employees in an alleged appropriate bargaining unit.' In answer to the latter request by the Amalgamated, the Company again refused recognition on the ground that the request was made subsequent to the date on which the automatic renewal clause contained in the afore-mentioned contract last became operative. The Utility Workers and the Company contend that the petition filed herein should be dismissed since the Amalgamated failed, to give notice of its claim of representation until after the agreement had renewed automatically. We find merit in this contention. It is clear that, no question concerning representation existed when the Amal- gamated first requested recognition in June 1942, since the contract then had nearly 6 months to run before being automatically renewed. After the Company's valid refusal of the Amalgamated's first request for recognition, we are of the opinion that the request or claim on which it was based was no longer operative.2 There is no evidence indicating that the Amalgamated renewed its claim of majority repre- sentation or requested the Company to recognize it as the exclusive bargaining representative of the employees in the unit it alleges is appropriate at any time between June 1942 and December 15, 1942. Therefore, on December 1, 1942, there was no pending claim to raise a question concerning representation which would prevent the contract ' A statement of a Field Examiner of the Board , introduced in evidence at the hearing, states that the Amalgamated submitted 138 application -for-membership cards dated be- tween December 1940 and March 1 943, all of which bear apparently genuine signatures; that 125 of the signatures are names of persons whose names appear on the Company's pay roll of February 15, 1943 , which pay roll contains the names of 180 persons in the unit alleged appropriate by the Amalgamated The Field Examiner also states that the Utility Workers submitted 44 application-for-membership cards dated between 1940 and March 1942 , hearing apparently genuine signatures of employees whose names appear on the Company's pay roll of February 15, 1943, in the unit alleged appropriate by the Amalgamated ; and that the Utility Workers further relies on its contract with the Company to substantiate its representation claim and asserts it as a bar to a present determination of representatives At the hearing the Utility Workers submitted a list of its membership in good standing as of December 31, 1942. This list indicates that the Utility Workers has about 98 mem- bers in the unit alleged appropriate by the Amalgamated. ' Cf. "Matter of North Range Mining Company and Local x$2739, United Steel Workers of Amei ice, C I. 0., 47 N. L B. B., 1303. 354 DECISION'S OF NATIONAL LABOR RELATIONIS BOARD between the Company and the Utility Workers from being automat- ically renewed on that date. Accordingly, for the reasons stated in the Mill B case,3 we find that the contract between the Utility Workers and'the Company constitutes a bar to a-determination of representa- tives at this time, and, accordingly, the petition of the Amalgamated shall be dismissed. This dismissal, however, shall not prejudice the right of the Amalgamated to file a new petition at a reasonable time before the automatic renewal clause next becomes operative. ORDER Upon the basis of the foregoing findings of fact and upon the entire record in the case, the National Labor Relations Board hereby orders that the petition for investigation and certification of representatives of employees of El Paso Electric Company, El Paso, Texas, filed by Amalgamated Association Street, Electric Railway and Motor Coach Employees of America, Division 1256, be, and it hereby is, dismissed. CHAIRMAN MirLIS took no part in the consideration of the above Decision and Order. See Matter of Mill B., Inc., Division of Irwin & Lyons , partners doing business under the assumed name of Irwin & Lyons and International Woodworkers of America, Local 116, 0. I. 0., 40 N. L. R. B. 346, and subsequent cases.