The Nevada-California Electric Corp.

In the Matter of THE NEVADA-CALIFORNIA ELECTRIC CORPORATION 1 and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION B-959, A. F. OF L. In the Matter Of INTERSTATE TELEGRAPH COMPANY and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION B-959, A. F. OF L. Cases Nos. R-1619 and R-1620, respectively.Decided February 1, 1940 Electric Utility Industry and Incidental Conowil ication Service Industry- Investigation of Representatives: controversy concerning representation of em- ployees: rival organizations; controversy concerning appropriate unit; employer refuses to recognize petitioning union until certification by Board ; petitioner's failure to show a refusal to bargain, not an essential to the existence of ; failure of petitioner to show majority membership, no. bar to, in view of employer's ad- mitted hostility to "outside" union-Unit Appropriate for Collective Bargaining: controversy as to inclusion of clerical employees with production employees ; held, clerical employees excluded, also field engineers and surveyors, salesmen, cus- tomers' representatives, solicitors, and appliance demonstrators, minor super- visors ; pursuant to stipulation, supervisory employees excluded, and production and maintenance employees of both companies included in single unit-Representa- tives: eligibility to participate in choice : restricted to employees who had worked for the companies for six months-Election Ordered Mr. William Walsh,, for the Board. Mr. C. N. Perkins and Mr. Henry IV. Coil, of Riverside, Calif., for the Companies. Mr. Gene Gaillac, of Los Angeles, Calif., for the I. B. E. W. Mr. John G. Gabbert, of Riverside, Calif., for the Assocititiou. Elizabeth W. Weston, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On June 26 and September 18, 1939, International Brotherhood of Electrical Workers, Local Union B-959, A. F. of L., herein called 'Incorrectly designated in the formal papers as Nev-Cal Electric Corporation. -At the hearing, the Trial Examiner granted a motion by the Companies to amend the title of the proceedings to read as set forth in the caption. 20 N. L. R. B., No. 2. 79 80 . DECISIONS OF NATIONAL LABOR RELATIONS BOARD the I. B. E. W., filed with the Regional Director for the Twenty- first Region (Los Angeles, California) two petitions and amended petitions, respectively, alleging that questions affecting commerce had arisen concerning the representation of employees of The Nevada-California Electric Corporation, herein called Nev-Cal, and of Interstate Telegraph Company, herein called Interstate, herein collectively called the Companies, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On November 3, 1939, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and further, pursuant to Article III, Section 10 (c) (2), of the said Rules and Regulations, ordered that the cases be consolidated. On November 10, 1939, the Regional Director issued a notice of hearing in the consolidated case, copies of which were duly served upon the Companies, the I. B. E. W., and upon Nev-Cal Employees Association, herein called the Association, a labor organization claim- ing to represelit employees of the Companies directly affected by the investigation. Pursuant to the notice, a hearing was held on November 17, 1939, at Riverside, California, before Mapes Davidson, the Trial Examiner duly designated by the Board. The Board, the Companies, and the Association were represented by counsel; the I. B. E. W. by a duly authorized representative; and all par- ticipated in the hearing. During the course of the hearing, the Trial Examiner made sev- eral rulings on motions and on objections to the admission of evi- dence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudical errors were committed. The rulings are hereby affirmed. During the hearing the Companies moved that the employees of both Companies be considered as a single unit for the purposes of collective bargaining. The Trial Examiner reserved ruling on this motion. In view of our finding in Section V below, the motion is hereby granted. Pursuant to leave granted by the Board to all parties, the Com- panies, the I. B. E. W. and the Association filed briefs with the Board. Pursuant to request therefor by the Companies and the Associa- tion, and upon notice to all the parties, a hearing was held before the Board in Washington, D. C., on December 7, 1939, for the THE NEVADA- CALIFORNIA ELECTRIC ^CORPORATION 81 purpose of oral argument. The Companies and the I. B. E. W. appeared and participated in the argument. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANIES The Nevada-California Electric Corporation is a Deleware cor- poration having its general offices at Riverside, California. It is engaged in the generation and transmission of electric energy pro- duced at generation plants in Mono and Inyo Counties in Cal- ifornia, and at the Boulder Dam outside the State of California. Nev-Cal transmits the power generated by it over lilies extending from Mono Basin to Calexico in California, to Baja California in the Republic of Mexico, and into the States of Nevada and Ari- zona. In addition to generating power, Nev-Cal purchases power for transmission over its lines. In 1938 Nev-Cal generated 393,087,557 kilowatt. hours of electric energy and purchased 68,228,140 kilowatt hours, a total of 461,315,697 kilowatt hours. Deducting transmission losses,' Nev-Cal distributed, in the same year, 327,481,894 kilowatt hours, or 89.12 per cent of the total amount distributed, in the State of California; 21,532,565 kilowatt hours, or 5.86 per cent, in the State of Nevada ; 18,331,500 kilowatt hours, or 4.99 per cent, in the State of Arizona; and exchanged 77,733 kilowatt hours, or .02 per cent, with other systems. From 25 to 30 per cent of the electric energy distributed by Nev-Cal in 1938 originated in the State of Nevada. The gross income of Nev-Cal in 1938 was $1,923,635.63, of which amount 88.23 per cent was earned in the State' of California. 5.92 per cent was earned in the State of Nevada, and 5.85 per cent was earned in the State of Arizona. Interstate Telegraph Company, a wholly owned subsidiary of Nev-Cal, also has its general offices at Riverside, California. Inter- state was formed and exists primarily to furnish telegraph and telephone service for Nev-Cal's power system, and its communication lines are parallel to and coextensive with Nev-Cal's power lines, Interstate also furnishes telephone service to private subscribers, of whom it has approxililately 1,350. There is no evidence as to the number of telephone calls handled by Interstate. During 1938 it handled 29,103 telegrams. During their last fiscal year, the Companies made purchases of materials amounting to $750,000. Ten per cent of this amount was expended in the purchase of materials originating outside the State of California. ' Amounting to 93 ,392.005 kilowaft Hour<. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Except for accounting purposes, the two Companies are entirely unified. They operate under. a single management; their general offices are in the same location ; they occupy the same branch offices and string their lines on the same poles wherever convenient; and they maintain the same schedules of wages and hours for their employees. The Companies admit that they are engaged in, interstate commerce. On November 1, 1939, the Companies had 836 employees, of whom 793 were employed by Nev-Cal and 43 by Interstate. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Electrical Workers, Local Union B-959, A. F. of L. is a labor organization, affiliated with the Ameri- can Federation of Labor, admitting to its membership production employees of the Companies. Nev-Cal Employees Association is an unaffiliated labor organization, admitting to its membership permanent employees of the Companies and temporary employees who have been employed by the Companies for 6 months or more. III. THE QUESTION CONCERNING REPRESENTATION The Association, which has four locals, came into existence in Octo- ber 1938 upon the formation of a clerical employees' local at the River- side general offices of the Companies. Two other locals, comprising both clerical and production employees, were organized in November 1938, and the Association's fourth local, which includes clerical and production employees, was formed in October 1939. Two of these locals separately have negotiated with the Companies respecting grievances and employment policies,. but it does not appear that any contracts resulted from these negotiations. The evidence does not show the total number of members claimed by the Association.' In December 1938 the I. B. E. W. began organizing production em- -ployees of the Companies. On or about December 15, 1938, the I. B. E. W. requested that the Companies recognize it as the bargaining rep- resentative of a substantial number of their employees for the purpose of bargaining with respect to a seniority policy in connection with lay- offs. This was discussed by the I. B. E. W. and the Companies on December 15, 1938, and subsequently, but the discussions were incon- clusive. During the December 15 meeting, the Companies stated that they would not recognize the I. B. E. W. or deal with it unless the I. B. E. W. was certified by the Board. The Companies have moved to dismiss the petitions on the grounds that the I. B. E. W. failed to allege in its petitions or to show at the 8 See footnote 5 below. THE 1EVADA-CALIFORNIA ELECTRIC CORPORATION 83% hearing that it represents a majority of the employees affected by this investigation, that the evidence does not show a refusal to bargain on the part of the Companies, and therefore, that no question con- cerning representation of the Companies' employees exists. These motions are hereby denied. A refusal to bargain by the employer is not essential to the existence of a question concerning representation of employees within the meaning of Section_ 9 (c) of the Act.4 As to the question respecting the petitioning union's membership claims.. the I. B. E. W. contends that an election by secret ballot is the.only method by which the preferences of a majority of the employees can be determined, suggesting that some employees, because of "job fear" or for other reasons, have been "backward about declaring them- selves." The Companies' avowed opposition to the growth of an "outside" union among their employees, expressed by their counsel at the oral argument, indicates merit in the I. B. E. W.'s contention. Moreover, the record shows that a substantial number of the Com- panies' employees 5 have been enrolled by rival labor organizations whose views with respect to the composition of the unit appropriate for the purposes of collective bargaining are in conflict. Under these circumstances, and in view of the Companies' refusal to deal with the I. B. E. W. unless it is certified by the Board, we find that a question has arisen concerning representation of employees of the Companies. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COM31ERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Companies described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT At the.hea.ring it was agreed by all parties that a single unit com- prising employees of both Companies, excluding supervisory em- 4 Cf. In the Matter of National Weaving Company and Textile Workers Organizing Committee, 7 N. L. R. B. 916. 4 According to a list of persons employed by the Companies on November 1, 1939, in evidence, there are approximately 769 employees of all classes below the supervisory grade ; approximately 436 of these are production employees . The evidence shows that the Association has a minimum of 107 members, inasmuch as 15 are required to form a local and one of the 4 locals has 62 or 63 members . In its amended petitions, the I. B. E. W. claimed 179 members among the production employees of the Companies. At. least 76 of the Association's members are production employees. It is, therefore, evident that a majority of the Companies ' production employees are members of either the Association or the I. B. E. W. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ' ployees, is appropriate for the purposes of collective bargaining, al- though the Companies and the two labor organizations differed in regard to the propriety of including certain classes of employees in such unit. We see no reason for departing from the agreement of the parties as to the general scope of the unit. Respecting the specific composition of the unit, the I. B. E. W. claims, in its amended petitions, that the unit should consist of the production employees of the Companies, including those engaged in hydro and steam operation and maintenance, transmission, construc- tion, distribution, maintenance and service, and switchboard operators, but excluding clerical employees. The Association and the Companies contend that all non-supervisory employees of the Companies, includ- ing the clerical employees, should be in the appropriate unit. As to the clerical employees, the I. B. E. W. argues that, while ultimately it hopes to include them in the bargaining unit and to admit them to its membership, this group of employees is at present too closely identified in interest with the management to be properly in- cluded,in a unit with the production workers, and that they are dif- ferentiated from the production employees by background, educational qualifications, and working conditions. The Association, on the other hand, contends that the clerical and production employees have many general problems in common, and points to the fact that the Companies have a "more or less general employment plan," affecting all employees. The Companies maintain that all their employees constitute a single appropriate unit. Although the Association admits both clerical and production employees to membership in the same locals, there is no evidence indicating that it has ever bargained for both groups of em- ployees in a single unit.e Under the circumstances, we find that the clerical employees may properly be excluded from the unit.' With respect to the classes of employees to be included in the unit as production employees, the evidence is meager. A list of all the persons employed by the Companies on November 1, 1939, which was received in evidence,8 shows that the Companies' 836 em- ployees are classified in numerous occupational categories, many of which cannot be identified as obviously supervisory, clerical, or production. With but minor exceptions, the I. B. E. W. introduced no evidence and made no contentions respecting employees in the specific categories listed. It did, however, indicate that it objected to the inclusion of employees in "marginal occupations" whom the 60n one occasion the Association's Riverside office Local No. 3, which consists entirely of clerical employees, negotiated with the Companies in regard to a general order promul- gated by the management, which affected all employees. The Association's governing body, the General Council, in which each local is represented according to its size, has never bargained with the Companies. 4 See Matter of Pacific Gas and Electric Company and United Electrical d Radio Workers of America, 3 N. L. R. B. 835; Matter of Southern California Gas Company and Utility Workers Organizing Committee, Local No. 132, 10 N. L. R. B. 1123 and cases cited therein. Board Exhibit 2. THE NEVADA-CALIFORNIA ELECTRIC CORPORATION 85 Companies might consider to be production employees. The com- panies in their brief, filed after the close of the hearing, state that they consider 471 of their employees, classified in the following cate- gories, to be production employees : crew foremen, field engineers, surveyors, patrolmen, reservoir watchmen, property watchmen, jan- itors, service foremen, linemen, servicemen, collectors and solicitors, meter , readers, groundmen, appliance servicemen, customers' repre- sentatives, hydroplant operators, dispatchers,, substation attendants, mechanics, garage foremen, transformer-shop workmen, truck driv- ers, chauffeurs, salesmen, storekeepers and production clerks, switch- board operators, meter testers, ' pump testers, steamplant employees, laborers, appliance demonstrators, and electricians.° The Companies also state in their brief that they are uncertain as to the correct classification of three. housekeepers employed by them. Employees in the following categories, listed in the Companies' brief, will be included in the unit since their designations clearly indicate that they are production"' employees : " patrolmen, reser- voir watchmen, property watchmen, janitors, linemen, servicemen, collectors, meter readers, groundmen, appliance servicemen, hydro- plant operators, dispatchers, substation attendants, mechanics, trans- former-shop workmen, truck drivers, chauffeurs, storekeepers and production clerks, switchboard operators, meter testers, pump testers, steamplant employees, laborers, and electricians. The I. B. E. W. desires that the field engineers and surveyors, de- scribed in the Companies' brief, be excluded from the unit. They appear to be professional employees, a class ordinarily excluded from units comprising production employees.12 They may properly be ex- eluded from the unit. The I. B. E. W. also desires the exclusion from the unit of salesmen, apparently on the ground that they should be considered clerical em- ployees. We find that they may properly be excluded from the unit." 9 While there are minor variations in terminology between Exhibit 2 and the list of employees' occupations contained in the brief , there is a high degree of correlation between the two with respect to the designations of the various jobs, and the number of employees in each. However , clerical, supervisory, and production employees , not designated as such, are commingled in Exhibit 2, and the Exhibit furnishes no description of the various 'jobs listed. We shall, therefore, in specifying the categories of employees ' to be included in' the unit , use the designations and descriptions furnished in the brief. ' 10 The term "production employees" as used by the parties herein includes both produc- tion and maintenance employees. 11 They also appear to be covered by the definition of production employees contained in the I. B. E. W.'s amended petitions , I. e., as including employees engaged in hydro and steam operation and maintenance, transmission , construction, distribution, maintenance and service , and switchboard operators. 12 Matter of Southern California Gas Company and Utility Workers Organizing Com- inittee Local No. 132, 10 N . L. R. B. 1123; Matter of Tennessee Copper Company and A. F. of L. Federal Union No. 21164 , 5 N. L. R. B . 768; cf. Matter of Tennessee Electric Power Company and International Brotherhood of Electrical Workers, 7 N. L. R. B. 24. 13 Matter of Tennessee Electric Power Company and International Brotherhood of Electrical Workers, 7 N. L. R. B. 24. 283031-41-vol. 20-7 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The customers' representatives, 11 in number, are men employed at two offices of Nev-Cal for the purpose of fostering cordial relations between Nev-Cal and its customers. The customers" representatives read meters, collect bills, make minor repairs of electrical attachments and connections, sell appliances, and occasionally assist in the installa- tion of heavy appliances which they have sold. The I. B. E. W. con- tends that the customers' representatives are white-collar workers, primarily salesmen, and that they should, therefore, be excluded from the unit. 'We find that customers' representatives may properly be excluded from the unit. Solicitors and appliance demonstrators, like salesmen and customers' representatives, may properly be grouped with the clerical employees and, therefore, excluded from the unit. The Companies employ crew foremen, service foremen, and garage foremen, who appear to be supervisory employees. Although the Com- panies assert that none of these foremen has the power to hire and dis- charge, there is no showing that they are eligible to membership in either the Association or the I. B. E. W. We find that these foremen may properly'be excluded from the unit along with other supervisory employees. The three housekeepers are described in the Companies' brief as women who take care of dwelling houses maintained at various points in the Companies' system for the benefit of construction crews. They appear to be maintenance employees and may, therefore, properly be included in the unit. We find that the production employees of the Companies, including patrolmen, reservoir watchmen, property watchmen, janitors, linemen, servicemen, collectors, meter readers, groundmen, appliance servicemen, hydroplant operators, dispatchers, substation attendants, mechanics, transformer-shop workmen, truck drivers, chauffeurs, storekeepers and production clerks, switchboard operators, meter testers, pump testers, steamplant employees, laborers, electricians, and housekeepers; bit excluding clerical employees, field engineers, surveyors, salesmen, cus- tomers' representatives, solicitors, appliance demonstrators, crew fore- men, garage foremen, service foremen, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, and that said unit will insure to employees of the Companies the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES We find that an election by secret ballot is necessary to resolve the question concerning representation. The I. B. E. W. contends that eligibility to vote in the election should be determined as of the date when it first began organizing employees of the Companies , in Decem- THE NEVADA-CALIFORNIA ELECTRIC CORPORATION 87 ber 1938. The Companies and the Association urge that a more recent eligibility date be selected. We see no reason why eligibility .should not be determined as of the pay-roll period immediately prior to the date of the Direction of Election herein. The Companies contend that temporary employees should be eligible to vote in the election, but in their brief and at the oral argument they indicated that they have few temporary employees, and that at present they are reducing rather than increasing the number of per- sons in their employ. The I. B. E. W. has indicated in its brief that temporary employees, whom it defines as employees with less than 6 months' service, should not be eligible to vote. The Association takes no position as to this, but admits temporary employees to its mem- bership only if they have been employed by the Companies for 6 months. It thus appears that both labor organizations consider that those employees who have worked for the Companies for a period of less than 6 months do not have such a permanent and continuous inter- est in working conditions as do the other employees of the Companies. We see no reason why eligibility to vote in the election should not be restricted, to employees who have. worked for the Companies for at least 6 'months. We shall direct-that the employees in the appropriate unit during the pay-roll period immediately prior to the date of the Direction of Election herein and Who have been employed by the Companies for at least 6 months, including employees who did not work during such pay-roll period because they were ill or on vacation, employees who were, then or have since been temporarily laid off, and excluding those who have since quit or been discharged for 'cause, shall be eligible to vote in the election. Since it appears that the employees of the Companies are stationed in widely separated locations, we authorize the Regional Director for the Twenty-first Region to determine in his - discretion the exact times and places and the procedure 'forgiving notice of the election and for balloting. We expressly authorize the use of the United States mail' for such purposes; and the use of agents, if feasible, to travel through the Companies' various territorial divisions to conduct the election at appropriate places, collecting the votes in. sealed envelopes for delivery to the Regional Director. Upon the basis of the above.findings of fact, and upon the entire record in the case, the Board makes the following : CONCLUSIONS of LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of The Nevada-California Electric Corpora- 88 ' DECISIONS OF -NATIONAL LABOR RELATIONS BOARD tion and Interstate Telegraph Company, Riverside, California, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. 2. The production employees of the Companies, including patrol- men, reservoir watchmen, property watchmen, janitors, linemen, serv- icemen, collectors, meter readers, groundmen, appliance servicemen, hydroplant operators, dispatchers, substation attendants, mechanics, transformer-shop workmen, truck drivers,. chauffeurs, storekeepers and production clerks, switchboard operators, meter testers, pump testers, steamplant employees, laborers, electricians, and house- keepers, but excluding clerical employees, field engineers, surveyors, salesmen, customers' representatives, solicitors, appliance demonstra- tors, crew foremen, garage foremen, service foremen, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (a) of the Act. 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 Relations Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, it is hereby Dnu_cnF.D that, as part of the investigation ordered by the Board to ascertain representatives for the purposes of collective bargaining with The Nevada-California Electric Corporation and Interstate Telegraph Company, Riverside, California, 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 of Election, under the direction and super- vision of the Regional Director for the Twenty-first Region, acting in this matter as agent for the National Labor Relations Board and sub- ject to Article III, Section 9, of said Rules and Regulations, among the production employees of The Nevada-California Electric Corpora- tion and Interstate Telegraph Company who were employed by the said Companies during the pay-roll period immediately prior to the date of this Direction of Election and who have been employed by the Companies for at least 6 months, including patrolmen, reservoir watch- men, property watchmen, janitors, linemen, servicemen, collectors, meter readers, groundmen, appliance servicemen, hydroplant opera- tors, dispatchers, substation attendants, mechanics, transformer-shop workmen, truck drivers, chauffeurs, storekeepers and production clerks, switchboard operators, meter testers, pump testers, steamplant em- ployees, laborers, electricians, and housekeepers, and including em- ployees who did not work during such pay-roll period because they were ill or on vacation, and employees who were then or have since been temporarily laid off, but excluding clerical employees, field en- THE NEVADA-CALIFORNIA ELECTRIC CORPORATION 89 gineers, surveyors, salesmen, customers' representatives, solicitors, ap- pliance demonstrators, crew foremen, garage foremen, service foremen, and supervisory employees, and employees who have since quit or been discharged for cause, to determine whether they desire to be repre- sented by International Brotherhood of Electrical Workers, Local Union B-959, A. F. of L. or Nev-Cal. Employees' Association, for the purposes of collective bargaining, or by neither. [SAME TITLE] AMENDMENT TO DIRECTION OF ELECTION Feb .uar-y 19, 1940 On February 1, 1940, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceedings, the election to be held within thirty, (30) days from the date of the Direction, under the direction and super= vision of the Regional Director for the Twenty-first Region (Los. Angeles, California). The Board, having been advised by the Re gional Director that a longer period within which to hold the election is necessary, hereby amends the -Direction of Election issued on Feb- ruary 1, 1940, by striking therefrom the words "not later than thirty (30) days from the date of this Direction of.Election" and substituting therefor the words "not later than forty (40) days from the date of this Direction of Election." 20 N. L. R. B., No. 2a.