The Cleveland Electric Illuminating Co.

In the Matter of THE CLEVELAND ELECTRIC ILLUMINATING COMPANY and UTILITY WORBERs ORGANIZING COMMITTEE, LOCAL 270, C. I. O. In the Matter of THE CLEVELAND ELECTRIC ILLUMINATING COMPANY and INTERNATIONAL UNION OF OPERATING ENGINEERS (AFL) LOCAL No. 589 In the Matter of THE CLEVELAND ELECTRIC ILLUMINATING COMPANY and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (AFL) LOCAL UNION B-1336 Cases Nos. R-5358 to R-5367, inclusive, respectively.Decided September 8, 1943 Mr. John R. Hill, for the Board. Messrs. Clan Crawford and Ralph M. Besse, of Cleveland, Ohio, for the Company. Mr. Lee W. Heilman, of Youngstown, Ohio, and Mr.'Eugene Cotton, of Washington, D. C., for the CIO. Messrs William Patrick Clyne and W. B. Petty, of Cleveland, Ohio, for the IBEW. Mr. Robert Silagi, of counsel to the Board. DECISION DIRECTION OF ELECTION AND ORDER STATEMENT OF THE CASE Upon petitions duly filed by Utility Workers Organizing Commit- tee, Local 270, C. 1. 0., herein called the CIO, by International Union of Operating Engineers (AFL) Local No. 589, herein called the Operat- ing Engineers, and by the International Brotherhood of Electrical Workers (AFL) Local Union B-1336, herein called the IBEW, alleg- ing that questions affecting commerce had arisen concerning the repre- sentation of employees of The Cleveland Electric Illuminating Company, Cleveland, Ohio, herein called the Company, the, National Labor Relations Board consolidated the cases and provided for an appropriate hearing upon due notice before Frank A. Mouritsen, Trial 52 N. L. R. B., No. 82. 518 THE CLEVELAND ELECTRIC 'ILLUMINATING COMPANY 519 Examiner. Said hearing was held it Cleveland, Ohio, on May 10, 11, 12, and 13,1943. The Company, the CIO, and the IBEW appeared and participated.' All parties were afforded full opportunity to be heard, to examine and,cross_examine witnesses, and to introduce evidence bearing on the issues. On April 30, 1943, the Board issued its Decision and Order in a case involving charges of unfair labor practices filed by the IBEW against the Company.2 The hearing in the instant case commenced on the 10th day after the issuance of said Decision. At the hearing and in its brief, the IBEW contended that the hearing date was prematurely set,. in that it did. not allow 10 full days to elapse in which to afford the Company an opportunity to signify whether it intended to comply with the Board's order. The record is barren of any fact or circum- stance which indicates that any party was prejudiced by the setting of the date of hearing for May 10, 1943. Both the Company and the IBEW were represented at the hearing by attorneys. Since the CIO was represented by its field representa- tive, the Trial Examiner and the Board's attorney rendered to him some aid in crystallizing the issues which they probably would not have given a lawyer. On one occasion, during a recess, a discussion was held among the Trial Examiner, the Board's attorney, and the CIO representative to arrive at some definition of "working foremen" whom the CIO seeks to include in the appropriate unit. An examination of the record reveals that the IBEW's attorney was invited to participate in this discussion but declined to do so. He was -later challenged to present any evidence bearing on the alleged misconduct of the Board's agents but declined to do so, stating that he did not. wish the inference of improper conduct to be drawn without supporting testimony. The IBEW alleges that the function of the Board's representatives is limited to establishing jurisdiction, and that they acted improperly and showed-bias.byassisting the CIO. The IBEW is clearly mistaken as to the functions of the Trial Examiner and Board's attorney in representation cases.$ We find that the conduct of the Trial Examiner and the Board's attorney was correct and proper and that a fair hearing was held. 1 The Operating Engineers did not appear and was not represented at the hearing, although it had been given due notice thereof. Instead it sent a letter to the Board 's Regional Director asking "to be excused from the hearing now in progress." 2 Case No. C-2543. . See.Matter of.The •Cleveland„Electrio Illuminating Co., 49 N. L. R. B. 300. ' Copies of the Trial Examiners ' Statement in "R" Cases , Board's Exhibit No. 2, were served upon all parties. This statement reads in part, "in general , the Trial Examiner will present evidence bearing upon the question of the Board's jurisdiction over the parties and the subject matter of the investigation , while the representatives of the other parties will be expected (with the assistance of the Trial Examiner if necessary ) to present evidence upon the remaining issues " During the hearing the Trial Examiner defined the function of the Board's attorney as coinciding with that of the Trial Examiner and stated that the Board's attorney "is merely here to try and assist the parties , and to get the information in the record. . . . 520 DECISIONS OF NATIONAL LABOR: RELATIONS -BOARD• At the hearing the IBEW moved to withdraw its petition No. R-5361 pertaining to the employees of the Stores Department of the Company. The motion was referred to the Board and is hereby granted. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. On July 8, 1943, oral argument was held before the Board in. Washington, D. C:, at which the Company, the CIO, and the IBEW appeared and participated. On August 18, 19, and 20, 1943, pursuant to an order of the Board reopening the record, a further hearing was held for the purpose -of determining whether or not an election might appropriately be directed at this time in view of the proceedings in the United States Circuit Court of Appeals for the-Sixth Circuit involving the Board's order issued in the complaint case.4 All parties, including the Oper- ating Engineers ;6 appeared, participated, and were, afforded full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial- Examiner's rulings made at the reopened hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY . The Cleveland Electric Illuminating Company, an Ohio corpora,- tion, is a public utility controlled by The North American Company. It has one wholly owned subsidiary, The Ceico Company, which owns, sells, and services electric meters and'acquires title to real estate for use in the" Company's business. The Company is engaged princi- pally in the `generation and distribution of electric energy and steam in Cuyahoga, Geauga, Lake,'and Ashtabula! counties,. and in;a small portion of Lorain county in the State of Ohio. Such territory in -which the'Company operates, extends along the shore of Lake Erie approximately 100 miles and inland to an average depth of about 1.7 miles. The total area in which the Company produces and distrib- utes electric energy is approximately 1,700 square miles or about 4 percent of the total area of the State of Ohio. The Company serves approximately 132 communities, which contain an approximate popu- lation of 1,340,000. Twenty ,percent of the, people of the State live 'within this area and 24 percent of the electric energy sold to consumers within the State is sold in this area. .4 See footnote 2, supra. S The participation of the Operating Engineers was limited to an affirmation of the post- tion adopted by the IBEW which will be considered in Section V. infra. THE CLEVELAND ELECTRIC, ILLU'MINAT'ING COMPANY 521 The area served by the Company is highly industrialized, contain- ing steel mills, machine shops, plants for the production of automo- bile parts and bodies, and other heavy industry and numerous utilities and other instrumentalities of interstate commerce. Many of said industries and instrumentalities for interstate commerce purchase and consume electric energy produced and distributed by the Com- ,pany. The Company owns several steam-electric generating plants of 640,000 kilowatt capacity, name-plate rating, and an intercommuni- cating transmission and distribution system. At the end of 1942 the Company had nearly 350,000 customers, including 951 industrial and commercial customers with a demand of 50 kilowatts or more, and 38,223 such customers with a demand of less than 50 kilowatts. Dur- ing the year 1942 the Company's revenue from the sale of electric energy amounted to approximately $35,750,000, and its total oper- ating revenue amounted to approximately $37,300,000. During the same period the Company used coal for the production of electric energy costing approximately $6,000,000, of which approximately 40 percent was shipped to the Company from points outside the State of Ohio. During that same period of time the Company purchased for use in its operations, equipment and supplies produced outside the States of Ohio of a value in excess of $1,000,000. The Company has numerous contracts to supply steam and elec- tric energy to plants engaged in the production of war materials. In addition, the Company has such contracts directly with agencies of the United States Government. We find that the Company is engaged in commerce within the mean- ing of the National Labor Relations Act.e II. THE ORGANIZATIONS INVOLVED Utility Workers Organizing Committee, Local 270, is a labor or- •ganization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. International Union of Operating Engineers, Local No. 589, and International Brotherhood of Electrical Workers, Local Union B-1336, are labor organizations affiliated with the American Federa- tion of Labor, admitting to membership employees of the Company. III. THE QUESTIONS CONCERNING REPRESENTATION On September 9, 1942, the Operating Engineers requested the Com- pany to bargain with it on behalf of all employees in the Company's -Canal Road, and East 20th Street and Lakeside Avenue plants. On September 15 the Company informed the Operating Engineers that e See Matter of Con8olidated Edison Company of New York, Ino., et al., V. N. L. R. B., et ti., 805 U. S. 197. 522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the proper bargaining unit, or units, should be determined by the Board because the Company had received conflicting claims from several labor organizations. The IBEW requested. the Company, on or about November. 25,,1942, to grant said union a collective bargaining contract, and on that same date the Company advised the union that the matter would have to be determined by the Board because of the conflicting claims made by the several labor organizations. By letter dated March 27, 1943, the CIO requested the Company to meet with said union in order to negotiate a union agreement. On April 1 the Company refused the request for the same reason it gave to the other unions. A statement by a Board agent, introduced in evidence at the hearing, indicates that the CIO and IBEW each represents a substantial number of employees in the unit hereinafter found appropriate.? Inasmuch as the Operating Engineers did riot appear at the original hearing, nor make its desires with respect to unit known, no consideration will be given its claims, and for the reasons set forth in Section IV, infra, its petitions will be dismissed. We find that questions affecting commerce have arisen concerning the representation of employees of the Company within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. Iv. THE APPROPRIATE UNIT Electric power furnished to the Company's customers is distributed from four steam electric generating plants which are closely inter- 4 The Field Examiner reported that the CIO submitted 1,049 application -for-membership cards, 1,047 of which bore apparently genuine original signatures ; that the names of 990 persons appearing on the cards were listed on the Company's pay roll of April 18, 1943, which contained the names of 2,200 employees in the appropriate unit ; and that all the cards were dated-between February and May 1, 1943. The Field Examiner 's report with respect to the authorization cards submitted by the IBEW, and a comparison with the CIO's representation in the units alleged by the IBEW to be appropriate , may be summarized as follows : Case No. No. em- ployees in unit No. names on cards appearing on pay roll of May 10, 1943 IBEW CIO R-5361-------------------------------------------------------------- 106 2 53 5362-------------------------------------------------------------- 689 121 431 5363------------------------------------------------------------- 135 20 53 5364------------------------------------------------------------- 131 76 27 5365-------------------------------------------------------------- 477 183 176 5366-------------------------------------------------------------- 184 46 100 5367-------------------------------------------------------------- 417 59 125 2,139 507 965 The authorization cards submitted by the IBEW were dated within 'a 7-month period preceding the date of the hearing. THE CLEVELAND ELECTRIC ILLUMINATING COMPANY 523 connected by a transmission system. Two generating plants. are lo- cated in the city of Cleveland; one is near the eastern end of the sys- tem in Ashtabula, some 50 miles from Cleveland; and one is near the western end at Avon, about 20 miles from Cleveland. In addition to electricity, the two Cleveland plants, and a third Cleveland plant de- voted exclusively to the production of steam for industrial purposes, also sell steam for heating and industrial purposes. The Company distributes its power through a pool system whereby power from any plant may be sent to any part of the system where it may be needed. At all times the Company maintains sufficient extra capacity to com- pensate for the break-down of the single largest turbine generator any- where in the system. The'Company also has physical connections with other utility companies serving the State of Ohio, so that power may be secured in cases of emergency. The uncontradicted testimony of the Company's vice president shows that all generating plants operate as a single integrated unit no part of which is operated independently or is capable of substituting for another. For operating purposes, the Company divides its functions into seven departments, namely : Steam ; Electrical ; Lines; Stores ; Serv- ice; Building Construction and Maintenance, Transportation and Shops; and Property Protection. In order to facilitate the perform- ance of certain limited local functions for the convenience of cus- tomers and for efficiency in handling local contracts, construction, etc., the Company has set up an Eastern District, which correlates the func- tions of four of the above-mentioned departments in and about the territory surrounding Ashtabula. None of the operational depart- ments in the Eastern District performs a complete function in every instance. The Superintendent of this district, who is also an assist- ant general manager of the Company, maintains his headquarters in Cleveland along with the offices of all other operating and non-operat- ing heads of departments. All high-line transmission, transmission substations and transmission switching of 33 K. V. and greater, in the Eastern District are controlled in Cleveland and are not within the jurisdiction of the Eastern District. The Company and the CIO are in substantial agreement that the appropriate unit should be system-wide for all operating, maintenance, and construction employees but excluding office, clerical, sales, and technical employees. The IBEW seeks to divide the Company's em- ployees into seven operating units,8 following what it alleges to be the Company's departmental set-up. The Operating Engineers would establish separate units at two of the Cleveland,generating plants. Al- though the petitions of the IBEW purport to duplicate the Com- pany's operational organization, they do not follow the set-up closely, "The withdrawal of the petition for the employees in the Stores Department leaves six units sought to be established by the IBEW. 524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD making omissions from each department. The IBEW argues that this is done to preserve the identity of craft lines ; but when it attempts to explain its petition for the employees in the Eastern District, which is not a company department, and from which the IBEW again seeks certain exclusions, it does so on the basis of the completeness of the services rendered there. As the CIO contends, were the division to be made along true craft lines it would mean the establishment of over 30 units and not merely 7. The evidence in the record shows that there is free and frequent interchange of employees between all departments. Over a period of 3 years prior to May 1943, there were 347 interdepartmental transfers, averaging almost 10 a month. These were in addition to the tempo- rary transfers or loans of employees from one department to an- other. Both the CIO and IBEW have jurisdiction coextensive with the Company's entire operations. Up to 10 days prior to the date of hearing, the IBEW conducted its organizational campaign on a sys- tem-wide basis. Although the international representative of the IBEW testified that his union generally organizes the utility industry along departmental lines, he admitted that all departmental contracts with the Company, should they come into existence, would ultimately be merged into a single contract covering the entire system. The rec- ord further reveals that the control of the Company's entire system is centralized in one general office in Cleveland ; that all departments are interdependent and comprise a single integrated system; and that all employees are subject to the same company rules and regulations and receive the same benefits. In view of all the facts and the integration and functional coherence of operations throughout the system, we perceive no reason for establishing units of arbitrary groupings. We shall adhere to our normal practice of-establishing an industrial unit where the labor organizations have organized along system-wide lines,' and we shall dismiss the petitions of the IBEW. We come now to the disposition of issues concerning certain cate- gories of employees within the broad suit. The parties agree and we find that operating employees include watchmen and janitors at operating locations, surveyors, meter read- ers, and blockmen. During the hearing, surveyors were defined to mean only those in the Lines, Department and not those in the Wire Relations, Electrical Engineering, and Survey Sections. 1. -Clerical employees at operating locations. The Company seeks to exclude all clerical employees, whereas the IBEW would include them. The CIO does not adopt a consistent position but seeks the See Matter of Buffalo Niagara Electric Corporation, et al., 46 N. L. R. B. 668; Matter of Consumers Power Co., 44 N L. R. B . 626; Matter of Florida Power & Light Company, 42 N. L. R. B 742; Matter of Antioch Power Company, 40 N. L. R. B. 773; Matter o t Northern States Power Company of Wisconsin , 37 N. L. R. B. 991 ; and Matter of Pennsyl- vania Edison Company, 36 N. L. R. B. 432. THE CLEVELAND ELECTRIC ILLUMINATING COMPANY - 525 inclusion of some who do manual labor and whose clerical work is not of a confidential nature, such as those who work in the Stores Depart- ment and in the garages of the Transportation Department. The CIO would also include timekeepers "where they come in close contact with the men," but it would exclude clerks in the power plants and in the Service Department. . The record shows that there are about 40 clerical employees in oper- ating locations of whom the CIO seeks about half. In general, their wages, duties, and relations to management are similar to those of the general office clerical employees who are excluded from the unit, by agreement. Under these circumstances we shall exclude the clerical employees 10 2. Employees in the Civil Engineering, Electrical Engineering, Wire Relations, Survey and Record Sections. Although most of these employees are excluded as general office employees, the Company spe- cifically desires their exclusion so as to avoid any later misunderstand- ings. The Company's position with respect to them is uncontested and, accordingly, these employees shall be excluded. 3. Property Protection Department. Neither the CIO nor the IBEW desires the inclusion of the watchmen, or guards, of the Prop- erty Protection Department. The Company agrees to their exclusion during the present war period while they are sworn in as Auxiliary Military Police, but wishes to preserve all rights to contend for their inclusion in an industrial unit after the war. With regard to this, the Company points out that the guards perform no confidential duties for management, nor do they police employees as such, and therefore believes that under normal conditions the guards belong in the same unit with operating employees. In accordance with the wishes of the parties, we shall exclude the guards without prejudice to the Com- pany's contending at a later time that they should be included in the unit of operating,employees.n 4. Production and Test Engineers. These are technically trained employees, many of whom are graduate and registered engineers, lo- cated at the power plants, and who deal with problems of operation involving the preparation of reports on operating efficiency as distin- guished from routine operating functions. They work in the same building as the operating employees but have no supervisory authority over them. The CIO seeks to include them while the Company argues for their exclusion as professional or semiprofessional employees and the IBEW expresses no preference. Under comparable circumstances we have excluded such engineers and we shall exclude them here I2 10 See Matter of Boston Edison Company, 51 N. L. R. B. 118; also Matter of Indxanapoli8 Power & Light Company, 51 N. L. R B. 670. 11 See Matter of Dravo Corporation, 52 N. L. R. B. 322. 'z See Matter of Twin State Cab & Electric Company, 38 N. L. R. B. 760; Matter of Boston Edison Company, 51 N. L. R. B. 118; also Matter of Savannah Electric & Power Co., 38 N. L. R. B. 47. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 5. Load and Trouble Dispatchers. , Twelve load dispatchers direct the operations of the electrical system by telephone in the general office of the Company. With the aid of diagrammatic maps they know at all times the status of every switch and piece of rotating electrical equipment on the system. They are highly trained, having come up through the ranks of the Electrical Department, and are thoroughly familiar with the electrical system, its equipment,. and personnel. No switch in any substation or power plant is opened or closed without orders from the.load dispatchers. Seven trouble dispatchers perform a similar function in directing the operations of the trouble crews by telephone from the general office of the Company. They are generally former line crew foremen who have come up through ,the ranks and have an intimate knowledge of the Company's lines. The Company and the CIO would exclude both types of dispatchers as general office and technical employees. The IBEW seeks to include them. We agree with the contentions of the Company and the CIO and shall exclude the dispatchers. 6. Chemists and Laboratory Assistants. These, employees, analyze samples of material and equipment purchased by the.Company. They also analyze cases of equipment failure, do original research and ex- perimental and test work in connection with new processes. They have little contact with the operating employees, dealing chiefly with the Purchasing Section, the various engineering sections and the head of the Steam Department. The Company seeks their exclusion on the same ground as it seeks the exclusion of the production and test engineers. Neither the CIO nor the IBEW apparently desire their inclusion ; accordingly, we shall exclude them from the appro- priate unit. 7. Supervisory Employees. The IBEW contends that all super- visory employees up to but not including general foremen should be included in the appropriate unit, whereas the CIO would exclude all but working foremen. The Company adopts no position on this issue. In view of our recent decision in The Maryland Drydock Company case, is a discussion of supervisory employees above the rank of so- called working foremen is unnecessary. The Company has no dis- tinct job classification known as working foremen but it appears that there may be some foremen, totaling about 25 in number, who fit into a definition of working foremen advanced by the CIO. Inas- much as the test proposed by the CIO does not coincide with our standard description of supervisory employees, and since the record does not clearly define the extent of their authority to discipline, we shall exclude or include these employees depending- upon -whether they fit the definition of supervisory employees hereinafter set forth.14 33 49, N. L. R. B. 733. 14 See Matter or Hekman Furniture Company, 50 N. L. R. B. 834. THE CLEVELAND ELECTRIC ILLUMINATING COMPANY 527 8. -Temporary employees: (a) Laborers. The Company maintains a permanent, crew of about 90 laborers in the Underground Lines Department. In addition, it now employs 32 temporary laborers who work on special jobs from time to time. Although the Company does not solicit them, whenever it has need for temporary laborers, those employees who have previ- ously worked for the Company are given preference in reemployment. Seven of the 32 temporary laborers have been continuously employed for less than 6 months; the remainder have been continuously employed for various periods ranging between 6 months and 2 years. The pres- ent job the' men are working on was expected to be completed in July 1943 at which time the Company contemplated discharging them since it is unlikely that there will be any additional large jobs in the imme- diate future. The Company seeks to exclude the temporary laborers. The IBEW would also exclude them because it claims that it did not attempt to organize them since they are temporary employees, while the CIO would include those employees who have been continuously employed for 3 months or longer. (b) lVatchmzen. These watchmen should be differentiated from the watchmen or guards in the Property Protection Department. The temporary watchmen herein referred to work in the Underground Lines Department. They set out lanterns and red flags about excava- tions, direct street traffic, and safeguard pedestrians against falling into the openings. When work is not going on they protect the Com- pany's equipment and tools from damage or theft. They are hired on a temporary basis after having signed applications for temporary employment, and are employed intermittently. They are not entitled to the benefits which the Company bestows upon its regular employees. At present there are 13 such employees whose "temporary" service ranges from a few months to 17 years. The Company claims that they are usually elderly men, sometimes partially disabled, who have expressed 'a preference for intermittent employment; it therefore seeks their exclusion. The IBEW would also exclude them, but the CIO wants them included in the appropriate unit. From all the facts it is manifest that the Company maintains what is tantamount to a manpower pool from which is supplied its tem- porary laborer needs. Even though the Company does not keep a list of available laborers to whom it sends notices to report for work, nevertheless, it intends to and does rehire its old employees. Under such circumstances we are of the opinion that they have a substantial interest in the determination of a bargaining representative. The case for, the inclusion of the temporary watchmen is all the stronger in the light of the, longer period of service they have rendered to the 528 DECISIONS OF 'NATION'AL LABOR RELATIONS BOARD - Company. Accordingly, we shall include temporary laborers and watchmen in the appropriate unit.16 We find that all operating, maintenance, and construction employees of the Company, including temporary laborers and watchmen, but excluding office, clerical, sales, technical employees, employees, in the Civil Engineering, Electrical Engineering, Wire Relations, Survey and Record Sections, Property Protection employees, production and test engineer, load and trouble dispatchers, chemists and laboratory assistants, and all supervisory employees with- authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES As indicated above in view of the fact that the Company's petitioli in the Circuit Court of Appeals for the Sixth Circuit for review of the Board's Order in the complaint case was granted, the Board or- dered a further hearing to determine whether or not an election at this time may appropriately be directed. The IBEW contends that no election should be directed until the Board's Order in the com- plaint case has been fully compiled with. The CIO urges an imme- diate election, and the Company adopts no position on this matter. The IBEW claims that the CIO has benefited by the non-compliance of the Company in the complaint case and that the effects of the Company's unfair labor practices have not been dissipated. In the complaint case the Board ordered the disestablishment of Electric Illuminating Workers Union, herein called the Independent, a labor organization found by the Board to be company-dominated. The record establishes that on February 5, 1943, more than 2 months before the issuance of the Board's disestablishment order,.at a mem- bership meeting attended by approximately 400 persons, the members of the Independent were addressed by the attorney who had acted as counsel to that organization. He stated that in his opinion the In- dependent would be obliged to disband as the result of the IBEW's charge, and recommended the formation of a new unaffiliated organ- ization to take its place. By unanimous vote the members of the In- dependent voted its own immediate dissolution, but took no action on the creation of a new union. Shortly thereafter, the funds of the Independent were distributed to charities and the organization ceased to function. It appears, moreover, that at a later date an attempt to form a new union was made, which, however, proved abortive. 15 See Matter of California Cotton Oil Corp., 26 N. L. R. B. 715; Matter of Houston Pipe Line Co., 28 N. L. R. B. 301; Matter of Medford Corp., 30 N. L. R. B. 256; and Matter of Imperial Ice Division of California Electrio Power Company , 50 N. L. R. B. 106. TIDE CLEiVELAND ELECTRIC ILLUMINATING COMPANY 5529 Thus, it is clear that the Independent's members, allegedly consti- tuting a substantial majority of the Company's employees throughout' the system, took all steps within their power to abolish and liquidate their dominated organization. They definitely rejected the proposal that they should form a new unaffiliated union to succeed the Inde- pendent. The CIO, which then appeared upon the scene, capitalized upon the Independent's dissolution in its organizing appeal to the employees to turn to a nationally affiliated organization. Several former trustees and officers of the Independent actively assisted in the CIO's organizing drive. However, there is no evidence that the or- ganizational structure of the Independent was transferred to the CIO, nor does the record show any acts of assistance to the CIO by the Company." While we in no way condone the Company's failure to post notices disestablishing the Independent, as directed in our Order in the com- plaint case, we note that its refusal to do so has been primarily due to: the actions of the IBEW itself. Thus, the Company, on July 26, offered to withdraw its petition for review in the Circuit Court and to comply fully with the Board's Order in the complaint case, pro- vided, however, it received the assurances of all other parties that they would not litigate the matter. This the IBEW refused to do. On August 19, the IBEW procured an order from the Circuit Court of Appeals for the Sixth Circuit restraining the Company from carry- ing out any part of the Board's Order during the pendency of the action to review the Board's Order. It has been a long-standing rule of this Board not to entertain petitions for an election filed by one union where a complaint has been issued on the charge of another union of the existence of unfair labor practices. The same rule has prevailed where a Board Order is outstanding which has not been complied with. The reason for the rule is that until the unfair labor practices, with respect to which the charging union has been aggrieved, have been dissipated, it has been felt that such a union would be placed under a great handicap by an immediate Direction of Election. In the instant case, however, it is apparent that non-compliance with the order has been due to the charging union. The result is that the 1,500 employees who ' have manifested their desire to bargain collectively either through the CIO or the IBEW are presently without an established collective bargaining representative. Cessante ratione; cessat lex. Accordingly,, we find nothing in the record before us to warrant us in holding that this anomalous situation must continue,-and the Company's employees, be denied the right to select a bargaining representative until the in- 10 There is no evidence that the Company's supervisory employees countenanced or solicited' membership in the CIO , although the Board in its complaint case found that the Company,' through its supervisory employees, had assisted the IBEW. 530 DECLSJONS OF NATIONAL LABOR RELATIONS BOARD definite future date when all the legal issues in the complaint case are resolved. We shall direct that the question concerning representation 'which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Elec- tion herein, subject to the limitations and additions set forth in the Direction. DIRECTION OF ELECTION By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Re- lations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECrFD that, as part of the investigation to ascertain represent- atives for the purposes of collective bargaining with The Cleveland Electric Illuminating Company, Cleveland, Ohio, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Eighth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sections 10 and 11, of said Rules and Regula- tions, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vaca- tion or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been dis- charged for cause, to determine whether they desire to be represented by Utility Workers Organizing Committee, Local 270, affiliated with the Congress of Industrial Organizations, or by International Brother- hood of Electrical Workers, Local Union B-1336, affiliated with the American Federation of Labor, for the purposes of collective bar-' gaining, or by neither. 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 petitions for investigation and certification of repre- sentatives of employees of The Cleveland Electric Illuminating Com- pany, Cleveland, Ohio, filed by International Union of Operating- Engineers (AFL) Local No. 589, and by International-Brotherhood of Electrical Workers' (AFL) Local Union B-1336, be, and they hereby are, dismissed.