Pueblo Gas & Fuel Co.

In the Matter of PUEBLO GAS & FUEL COMPANY and INTERNATIONAL BROTimmoOD OF ELECTRICAL WORKERS, LOCAL UNION No. 667-B ' Case No. C-1424-Decided May 00, 1940 Natural Gas Utility-Jurisdiction : effect on interstate commerce-Interference, Restraint, and Coercion : hostility of respondent to union activity expressed by superintendent and president-manager; questioning, advising, and warning em- ployees with respect to the union ; responsibility of respondent for actions of supervisory employee ; alleged cessation held not to render remedial order un- necessary ; respondent ordered to cease and desist-Labor Organization: char- acter of union as labor organization not affected even if action in admitting respondent's employees to membership ultra vires constitution and bylaws- Unit Appropriate for Collective Bargaining : all employees in the operating de- partment, including foremen but excluding superintendent , general street fore- man, and clerks ; foremen included upon request of the only union involved- Representatives : proof of choice: membership in union; allegation that member- ship ultra wires herd immaterial-Collective Bargaining : refusal to recognize union ; no merit found in alleged justification for : membership of respondent's employees in union alleged to be ultra vires ; majority of union's members em- ployed by respondent 's competitor ; alleged conflict between Act and Colorado anti-injunction statute with respect to right of exclusive representation by rep- resentative designated by majority ; alleged effect of Colorado no-strike statute and proceedings thereunder ; respondent ordered to bargain upon request. Mr. Paul S. Kuelthau, for the Board. Mr. L. B. Morrell, of Pueblo, Colo., for the Union. Lee, Shaw cC McCreery, by Mr. Donald C. McCreery and Mr. Wil- liam A. Bryans III, of Denver, Colo., for the respondent. Mr. John Green, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Charges having been filed by International Brotherhood of Elec- trical Workers, Local No. 667-B, herein called the Union, the National Labor Relations Board, herein called the Board, by the Acting Regional Director for the Twenty-second Region (Denver, Colorado), issued its complaint -dated September 20, 1939, against Pueblo Gas & Fuel Company, Pueblo, Colorado, herein called the respondent, alleg- 23 N. L. R. B., No. 111. 1028 PUEBLO GAS & FUEL COMPANY 1029 ing that the respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (5) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. Copies of the complaint accompanied by notice of hearing were duly served upon the respond- ent and the Union. Concerning the unfair labor practices the complaint alleged that in May 1939, and at all times thereafter, the respondent refused to bargain collectively with the Union as the representative of the employees in the operating department of the respondent, although the Union had been designated by a -majority of said employees as their representative for the purposes of collective bargaining and said employees constituted an appropriate bargaining unit; that in April 1939, and thereafter, the respondent urged, persuaded, and warned its employees to refrain from forming or becoming members of or participating in the activities of any labor organization, and from engaging in concerted activities for the purposes of collective `bargaining; and that by the foregoing acts, by threats of discharge, demotion, and other reprisals, and by other acts, the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in the Act. Thereafter, pursuant to an extension of time granted by the Regional Director, the respondent, on October 3, 1939, filed its answer denying certain of the allegations of the complaint in respect to the nature of its business, the jurisdiction of the Board, and the aver- ments of unfair labor practices. The respondent, in its answer, admitted that it had refused to bargain collectively with the Union', but set forth certain allegations by way of affirmative defense. Pursuant to notice, a hearing was held at Pueblo, Colorado, on October 9, 1939, before Charles W. Whittemore, the Trial Examiner duly designated by the Board. The Board and the respondent were represented by counsel and the Union by its representative, and all participated in the hearing. Full opportunity to be heard, 'to examine and cross-examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties. At the commencement of the hearing the respondent moved to dismiss the proceeding for lack of jurisdiction. The Trial Examiner denied the motion. At the close of the hearing the respondent renewed the motion to dis- miss on the jurisdictional ground and also upon the merits. The Trial Examiner reserved ruling thereon and denied the motion in his Intermediate Report. At the close, of the hearing, the Trial Examiner granted a motion by counsel for the Board to amend the complaint to conform to the proof in respect to spelling and vari- ances in names, places, and dates. During the hearing-the Trial Examiner made rulings on objections to the admission of evidence. 283034-41-vol. 23-66 - 1030 DECISIONS OF NATIONAL LABOR RF^LATIONS BOARD The Board has reviewed the rulings of the Trial Examiner and finds no prejudicial errors were committed. The rulings are hereby affirmed. Thereafter, the Trial Examiner filed his Intermediate Report, dated November 17, 1939, copies of which were duly served upon the respondent and the Union. The Trial Examiner found that the respondent had'engaged in unfair labor practices within the meaning of Section 8 (1) and (5) and Section 2 (0) and (7) of the Act, and recommended that the respondent cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. On December 14, 1930, the respondent filed exceptions to the Intermediate Report, and a brief in support of its exceptions. The Board has considered the brief and the exceptions of the respondent to the Intermediate Report and, in so far as the exceptions are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT Pueblo Gas & Fuel Company, a public utility corporation organized under the laws of the State of Colorado, and having its principal office and place of business in Pueblo, Colorado, is engaged in the business of purchasing, selling, and distributing natural gas, in the city of Pueblo, Colorado. It also purchases and sells appliances to promote the development of its gas business. Purchases of natural gas moving in interstate commerce The respondent purchases and receives all of its gas from the Colorado Interstate Gas Company, herein called the Interstate, which transports such gas via pipe line from the State of Texas to the State of Colorado and makes delivery thereof to the respondent at the "city gate," a measuring station maintained by the Interstate at Pueblo, Colorado. The respondent purchases the gas from the Interstate under a contract providing that gas to be resold for domestic purposes is sold to the respondent at a fixed price of 40 cents per A1CF,1 and gas to be resold 'for industrial purposes is sold to the respondent under an open price arrangement whereby such in- dustrial resale contracts must be submitted to the Interstate for consent and approval and 85 per cent of the approved resale price paid over to the Interstate; in addition, the contract provides that - 'Thousand cubic feet. PUEBLO GAS & FUEL COMPANY 1031 .the respondent shall render monthly statements to the Interstate of the quantity of gas consumed by each of the respondent's industrial customers. The contract further provides that the Interstate shall not be obligated to sell and deliver natural gas in excess of the amount it has currently available for delivery. Purchases of materials and merchandise moving in interstate commerce During the first 8 months of 1939 the respondent purchased for resale by it merchandise and appliances in the amount of approxi- mately $35,000, of which about $4,600 was purchased outside the State of Colorado. A substantial part of the purchases made in the State consisted of things processed and manufactured outside the State of Colorado and shipped to supply houses, agents, or branches within the State of Colorado and thence reshipped to the respondent. During the same period the respondent purchased for its own use 'equipment, materials, and supplies costing approximately $28.500, of which amount $1,400 was the cost of things purchased outside the State of Colorado. A part of the purchases made in the State consisted of things processed or 'manufactured outside the State of Colorado and shipped to supply houses, agents, and jobbers within the State of Colorado and thence reshipped to the respondent. Types of consumers dependent on respondent for supply of natural gas The respondent supplies all of the natural gas sold within the city limits of Pueblo, Colorado, which has a population of approximately 50,000. Of its 6,400 customers, approximately 5,750 are domestic purchasers. During the first 8 months of 1939 the respondent pur- chased and received natural gas in the amount of 351,866 MCF, costing $123,849.27. Of its total sales during the same period, 103,358 MCF was sold to various industrial consumers under so-called "industrial" contracts. Among the customers using for industrial purposes natural gas purchased under industrial contracts are the following : Continental Baking Company, which maintains at Pueblo one unit of its na- tional chain of bakeries and ships to the State of New Mexico bread baked at the Pueblo branch, amounting to approximately $400 pet week and constituting about 6 per cent of the business at the Pueblo unit; it uses gas purchased from the respondent in heating its ovens. Rainbo Bakers, Inc., which is engaged in the business of baking bread at Pueblo and ships outside the State of Colorado approxi- mately $300 of bread per week, constituting about 6 per cent of its business; it uses gas purchased from the respondent in heating its 1032 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ovens. Summit Pressed Brick Company which is engaged in the manufacture of brick at Pueblo and ships to points outside the State of Colorado about 9 per cent of its products; it uses gas purchased from the respondent in heating its kilns. Among the customers purchasing natural gas from the respond- ent under non-industrial rates, but for industrial purposes, are the following: Nuckolls Packing Company, which uses natural gas in the amount of $900 annually in its smokehouses for the processing of .sausages and smoked meats, of which about 6,000,000 pounds, amount- ing to 40 per cent of its production, are shipped outside the State of Colorado annually. National Broom Company, which uses gas in the amount of approximately $35 monthly to heat a dye vat in the treatment of an experimental type of broom, of which a substantial amount is shipped outside the State of Colorado. Pueblo Star- Journal and Chieftain, morning and evening newspapers, which use natural gas in type-setting machines; these newspapers have a total circulation of 23,546, including 458 "out of state" subscribers, and approximately 15 per cent of their advertising space is devoted to national advertising ordered from outside the State of Colorado. Among the customers using for space heating natural gas pur- chased from respondent, under industrial contracts are the follow ing: N. O. Nelson Company, which is a branch of a concern located at St. Louis, Missouri, is engaged in the distribution of plumbing fixtures, and ships to the State of New Mexico from the Pueblo branch approximately $30,000 of plumbing fixtures annually. Clev- enger Auto Company, which is engaged in the sale and repair of auto- mobiles at Pueblo and ships to the State of New Mexico approxi- mately 50 cars annually. Among the customers using for space and hot-water heating natural gas purchased from the respondent under non-industrial rates is Crane O'Fallon, a branch of a concern located at Denver, Colo- rado, which is engaged in the distribution of plumbing fixtures, fur- naces, 'stokers, and heating appliances, and ships annually to the State of New Mexico approximately $8,000 of such items, estimated at 16 per cent of the business of the Pueblo branch. In addition to the foregoing, the Federal Building, Pueblo, Colo- rado, which houses the United States Post Office and other govern- ment offices, and Mountain States Telephone & Telegraph Company, a subsidiary of American Telephone Sc Telegraph Company, located at Pueblo and supplying telephone service throughout the Rocky Mountain area, purchase natural gas from the respondent under industrial contracts for space and hot-water heating.2 2 In addition , Whitman Hotel, engaged in the usual hotel activities In Pueblo, uses natu- ral gas purchased from the respondent for hot-water and space heating and cooking. PUEBLO GAS & , FUEL COMPANY 1033 Conclusions concerning the respondent's relation to commerce It is evident from the facts set forth above, and we find (1) that the city of Pueblo is entirely dependent upon the respondent for natural gas; (2) that the respondent is, by contract, entirely de- pendent upon the, flow of natural gas moving in interstate commerce; (3) that the respondent purchases large quantities of natural gas which are piped to it across State lines; (4) that the respondent receives materials, supplies, merchandise, and appliances moving in interstate commerce; and (5) that instrumentalities of interstate communication, such as the post office and the telephone and tele- graph company, and commercial and industrial concerns which pur- chase and sell in interstate commerce are dependent upon the re- spondent for their supply of natural gas. A cessation of the re- spondent's business, such as would tend to accompany labor dis- putes between the respondent and its employees, (a) would affect the flow of large quantities of natural gas and other commodities received by the respondent in interstate commerce; and (b) would tend to burden and obstruct the operations of various agencies of interstate communication and the operations of the businesses served by the respondent with natural gas, which receive and ship com- modities in interstate commerce .8 The respondent contends that the operations of the customers enumerated above can be easily, readily, and promptly carried on, if necessary, without the use of natural gas. Stated, more fully, the respondent's position is substantially as follows : (1) many of such customers use natural gas only for space heating their places of business, and to operate hot-water heaters for the convenience` of their employees; (2) consumers purchasing gas from the respondent under industrial contracts agree, by virtue of a "stand-by" provision therein, "to keep sufficient quantity of other fuel in stock at all times to provide for his needs in case of any interruption of gas deliveries"; and (3) most of the industrial customers are already equipped to operate with other fuels, such as bottled gas and coal, electricity, and compressed air. In respect to those customers using gas, for space heating, it is clear that the heating of a place of business may be as necessary for its efficient operation as is an uninterrupted source of power. In respect to the industrial users of natural gas purchased under both industrial and non-industrial rates, the respondent introduced evidence showing that some of the companies enumerated above maintained stand-by equipment, which could be utilized forthwith 8 Cf. Matter of The Ohio Power Company and United Electrical, Radio and Machine Workers of America, Local No. 729, 12 N. L. R. B. 11. and cases cited therein. 1034 ' DECISIONS OF NATIONAL LABOR )RELATIONS BOARD by opening and closing valves now in place and ready for operation; that others maintained auxiliary equipment and coal equipment converted for gas,4 which can readily be reconverted; that others can use processes not requiring gas; and that those concerns having their branches in Pueblo could, when conditions require, ship their products from the main plant or other branches. Nevertheless, it' is the fact that natural gas is the preferred fuel whether for reasons of necessity, economy, or combustible qualities of natural gas. A change to substitute fuels on an emergency basis and the rerouting of shipments in itself would constitute a burden and obstruction upon the operations of these consumers. Moreover, while each customer of the respondent, considered separately, might be able to secure sufficient substitute fuels, it may well be doubted, if all of them were' faced with an interruption in the supply of natural gas at the same time, whether the needs of all of them could be readily satisfied.' Thus, it is apparent that a cessation in the supply of natural gas, would result or tend to result in the dislocation or disturbance of the operations of these customers.5 II. THE ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, Local Union'n No. 067-B, herein called the Union, is a local chartered by the In- ternational Brotherhood of Electrical Workers, herein called the In-' ternational, which is affiliated with the American Federation of Labor. The Union admits to membership employees of the respondent and', of gas and electric utilities in the Pueblo, Colorado, area, including seven or eight communities. For' administrative purposes the Union' is divided into units on the basis of employer, geography, and occu- pational groupings; 0 there are seven units in Pueblo alone, including one composed of employees in the respondent's operating depart- ment. Each unit elects its own officers and chooses its business agent, and holds separate meetings with reference to matters of immediate concern only to the employees in the unit. In addition the Union elects officers, chooses a business agent, and holds meetings with 'reference to matters of general concern to the members of the Union. Of the approximately 300 members of the Union about 160 are em ployees of the South Colorado Power Company, which serves the Pueblo, Colorado, area with electricity.' 'Included among these Is the N. O. Nelson Manufacturing Company, which uses 'gait purchased from the respondent for space heating. 6Cf Matter of conthcrn California Gae Company and Utility Workers Organizing Con= mittre. Local No 132, 10 N. L. R. 11 112.1. U Such as shopmen, operating department , and linesmen.. - - 7 The other members of, the Union,. It may be inferred from the record, are employees in the electrical field. - PUEBLO GAS & FUEL COMPANY 1035 The respondent contends that the Union is not a labor organiza= tion. The respondent rests the contention on three grounds : (1) a majority of its members are employed in an industry which is in competition with the respondent; (2) allegedly, the admission of the respondent's employees to membership is ultra wires the constitution and bylaws of the Union; and (3) the Union cannot (apparently because of the foregoing) be a representative of the respondent's employees for purposes of collective bargaining. Manifestly the: first and second grounds are irrelevant to the determination of whether the Union is a labor organization. The third proposition- which, more aptly stated, is that the respondent cannot be required to bargain with the Union-is, for the reasons stated below,8 unten- able, and even if valid would afford no basis for finding the Union, although it is clearly within the statutory definition," is not a labor organization. Indeed, the third proposition rests upon a complete misconception of the function of the statutory definition which does not address itself to the efficacy or propriety of the organization in question, as is perhaps most graphically illustrated by the many instances in which the Board has ordered employers to refrain from bargaining with company dominated labor' organizations.10 On the contrary the Act definies a labor organization in the broadest terms in order, as is apparent from the provisions of Sections 7 and 8, that the rights of employees guaranteed therein shall be fully protected against employer interference. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion The Union began organizational activity among the employees in, the operating department of the respondent in the latter part of April 1939, and on May 6, 1939, held a meeting at which a number of these employees signed preliminary applications for membership in the Union. The following week, on May 13, 1939, 15 out of the 22 employees in the unit found below to be appropriate were for- mally initiated into membership on the Union. On or about May 1, 1939, Earl A. McGill, employed by the re- spondent as a repairman, was approached at his work by T. C. 8 See Section TIT, B , infra. e Section 2 (-,) of the Act defines a labor organization as "any organization of any kind, or any agency or employee representation committee or plan, in which employees paitici- pate and which exists for the purpose , in whole or in part, of dealing with employers con- cerning grievances, labor disputes, wages, rates of pay, hours of employment, or conditions of work." 10 S^_e also Lawson Manufacturing Company and Defenders of America, Pittsburgh Chap- ter No. 2, 19 N. L R B. 756 1036 DECISIONS OF NATIONAL LABOR RELATIONS' BOARD Calvert, superintendent of the operating department. 11 Calvert asked, "Just what are you fellows trying to do to get into the Union? What organization are you getting in with? . . . the Plumbers or who . . . ?" Upon being informed that it was the "Electrical Workers," Calvert replied, "You had better be careful getting into this organization because we might- not be,• able , to do certain types of work that the plumbers might and the plumbers might take some of our work from us." On or about May 5, 1939, Arthur D. Melvin, employed by the re- spondent as a pipefitter, was likewise approached at his work by Calvert. Calvert asked Melvin whether he would vote in favor of the Union at the union meeting to be held the next day, and warned him, "You had better be careful because just the older ones might be working." The following week, on or about May 11, 1939, the following occurred : Calvert called at the home of George W. Reynolds, em- ployed by the respondent as pipefitter, and declared that "the com- pany had had a meeting in Denver and that they decided that there wouldn't be any union." Calvert added that he was informing Rey- nolds of this so that the latter would not "get in any trouble." At about the same time, Calvert again approached McGill at his work, said that "the company knew about the union" and that "they [ap- parently referring to himself and Keeler] had just gotten back from Denver and they, knew more about how the company stood about a union and lie didn't want anybody to go out on a limb because there definitely would be no union." When Reynolds asked "who made that statement," Calvert declined to answer, but stated "it was just the company policy." Calvert, at this time, called at Melvin's home and stated that he had just returned from a meeting of the respondent at Denver, that "the company had decided to run their own business," that "there would be no union," and that lie did not want Melvin "to make a move that would jeopardize" his job. At about this time Cal- vert approached Winthrop D. Sylvester, a street foreman of the re= spondent, on the job and asked him whether he intended to join "this Union with the rest of them." Upon Sylvester's admitting that he intended to join the Union, Calvert declared that the respondent "wouldn't recognize the Union and wouldn't have anything to do with it." On or about May 15, 1939, McGill was summoned to the office of C. G. Keeler, manager and president of the respondent. Keeler stated that he desired to discuss "the union activities." When McGill n Calvert did not testify except as to the personnel and duties of employees In the oper- ating department. PUEBLO GAS &_FUEL COMPANY 1037 informed Keeler that he was a member of the Union, Keeler re- marked, "Well, I have been watching the front door all the time and the boys in the back are going to force me to close the doors." Keeler then asked McGill whether he had gone to the Labor Temple in Pueblo to join the Union or whether the Union had contacted McGill at the premises of the respondent. McGill replied that he did not consider himself privileged to discuss union activities, to which Keeler answered, "Well, if that is the way you feel about it, I don't want to force you to talk." Thereupon McGill excused himself and left Keeler's office. The respondent contends with respect to, the foregoing facts: (1) that since May 13, 1939, when its employees were initiated into the Union, no "officer or representative of the respondent ... did or said anything which could be construed as `interference, restraint or coer- cion"'; (2) that Calvert, whose statements antedated May 13, had no knowledge of organizational activities among the respondent's em- ployees; (3) that Calvert "is not shown to have so spoken with the authority of the respondent"; and (4) the "employees have proceeded freely and without molestation in the union activities" since May 13$ and that, therefore, there is now "no justification for `cease and desist' orders." Implicit in the argument advanced by the respondent is the assump- tion that the action of Keeler, in calling McGill to his office on May 15 and there engaging in the conversation set forth above, was un- exceptionable. The assumption is unwarranted. Keeler plainly mani- fested hostility to the Union. Nor do we attach any significance to the fact that such conduct on the part of Keeler occurred after some of the employees had been initiated into the Union, whereas Calvert's more explicit threats and warnings were uttered before that date. The guarantees of the Act to employees in the exercise of their right to self-organization are effective even before they have been inducted into a labor organization. Also immaterial is the alleged absence of proof that Calvert, who was superintendent of the operating depart- ment, and has authority to hire and discharge, spoke "with the au- thority of the respondent." Because of his position the respondent is chargeable with Calvert's statements even though express authority therefor is not shown; as a supervisory employee his acts bind the employer. Moreover, upon the entire record we are satisfied, and we find, that Calvert acted with the full authorization of the respondent. We find that by the foregoing acts and statements of Calvert and Keeler the respondent interfered with, restrained, and coerced its employees in the exercise of rights guaranteed them by Section 7 of the Act. While such conduct occurred in May 1939, the record discloses no action by the respondent to dispel the effects thereof, 1038 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and under these circumstances alone a remedial order is necessary to assure employees of the respondent that they may in the future exercise freely the rights guaranteed by the Act. The necessity for such an order is further shown by the fact that, as set forth below in connection with the Union's attempt to bargain collectively, the respondent continued to evince hostility to the exercise by its em- ployees of the rights guaranteed by the Act. Under these circum- stances, any cessation of the cruder anti-union expressions in which Calvert and Keeler engaged in May 1939 affords no assurance that they will not be renewed at some later date. B. The refusal to bargain 1. The appropriate unit When - the Union sought to negotiate with the respondent as_ the representative of the employees in the operating department, the respondent did not question the appropriateness of such a unit, but objected to treating with the Union as the representative of its employees. Moreover, while the respondent 's answer controverts the allegation of the complaint that the employees in the operating department constitute an appropriate unit, the record clearly shows that thereby the respondent 'challenged only the "propriety " of repre- sentation by the Union and not the grouping of employees of the respondent's operating department for bargaining purposes. At the hearing the Union requested that foremen be included and that clerical employees be excluded from the unit. Upon approval of its members the Union admits foremen , and two of the five fore- men are members of the Union . None of the five foremen has authority to hire or discharge . While the general street foreman also has no such authority , his duties consist of supervision of the other foremen and his status is therefore more nearly that of the super- intendent. That the Union seeks to exclude the latter from the unit is clear, and we do not understand that it seeks to include the general street foreman in the unit . The Union does not admit clerical employees to membership , and the nature of their work clearly dif- ferentiates them from other employees in the operating department. In sum, the unit sought by the Union is a normal industrial unit and we see no reason to depart from it.12 v At the hearing the Union also requested the inclusion of two meter readers in the unit ; later in the hearing the Union apparently took the position that it was indifferent as to their inclusion or exclusion . Meter readers are classified by the respondent as office em- ployees; they return their readings to the office; they are not under the supervision of the operating department ; and their duties differ materially from those who are engaged In meter reading, installation mains, service work, and complaints , and the installation of gas ranges and 'other appliances sold by the respondent: Moreover, the record does not show that the meter readers are members of or have expressed any desire to herepresented by the Union. Under these circumstances we shall exclude them from the unit. =PUEBLO GAS ' &' FUEL COMPANY 1039 - We ' find that all employees in the operating department of the respondent, including foremen, but excluding the superintendent, the general street foreman, and' clerical employees, constitute, and at all times herein material, constituted, a unit appropriate for the pur- poses of collective bargaining and that said unit insures to the employees of the respondent the -full benefit of their right to self= organization and collective bargaining and otherwise effectuates the policies of the Act. 2. Representation by the Union of a majority in the appropriate unit At the hearing the list-of -the employees in the operating depart- ment of the respondent was introduced in evidence, showing 22 employees in the appropriate unit. It was agreed that -of the 22 employees in the appropriate unit, 15 employees whose names were read, into the record had joined the Union on or before May 13, 1939."' In addition, the parties agreed that Clyde Franklin Sherman had applied for and was admitted to membership in the Union on August 17, 1939; no other change was claimed to have occurred in the member- ship of the Union; and no claim was made that there had been any change in the personnel of the respondent's operating department. - The respondent urges that the Union, in admitting the respondent's employees to membership, acted outside' its constitution and bylaws. We find it unnecessary, however, to make any finding with respect to the alleged conflict between the Union's charter and its practice (which appears to be fully sanctioned by the International). The At pro- vides that representatives designated or selected for the purposes of collective bargaining by the majority'of the employees in a unit appro- priate for such purposes shall be the exclusive representatives of all the employees in such unit. The Act does not require that such repre- sentatives shall be a- labor organization of 'which the employees are members. On the contrary the Act guarantees to employees the right to bargain collectively through representatives of their own choosing. Whether they shall choose as their representatives a labor organizes- tion in which they are ineligible to membership is as much a matter to be decided solely by the employees, themselves as is the question whether they shall in any event join, a labor' organization which they have designated as their representative. -Whatever, if any, practical distinction may be shown for other purposes between de 'facto and de jure membership, certain it is, and we find, that by becoming mem- '- This, it may be noted , was a majority even If the clerical employees (of whom there were three ) and/or the general street foreman , were Included in the unit , and/or the fore- men (of whom there were five, including two members of the -Union ) were excluded from the unit. 1040 ` DECISIONS OF_ NATIONAL, LABOR RELATIONS BOARD bers of the Union the respondent's employees manifested their selec- tion of the Union as their representative for purposes of collective bar- gaining and thereby designated it as their agent for such purposes. We find that on or about May 13, 1939, and at all times thereafter, the Union was the duly authorized representative of the majority of the employees in the appropriate unit, and pursuant to Section 9 (a) of the Act, was the exclusive representative of all the employees in such unit for the purposes of collective bargaining with the respondent in respect to rates of pay, wages, hours of employment, and other con- ditions of employment. 3. The refusal to bargain On May 16, 1939, following the initiation into membership in the Union of a majority of the employees in the operating department of the respondent, L. B. Morrell, business representative of the Union, called upon Keeler, president and manager of the respondent, and requested recognition of the Union as the bargaining agent of the employees in the respondent's operating department.14 Morrell testi- fied that Keeler replied that he would not recognize any labor organ- ization and that he would only bargain with individuals. Keeler was not called as a witness. We find, as did the Trial Examiner, that he made the statement attributed to him by Morrell. We further find that thereby the respondent interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed by Section 7 of the Act. The respondent asserts that at the meeting between Morrell and Keeler on May 16, and at all times thereafter, it took the position that it would not bargain with Morrell "as an international repre- sentative of the International Brotherhood of Electrical Workers on behalf of any employee or group of employees"; that the respondent did not object to "the employees organizing themselves"; that the respondent would bargain with employees who so choose to organize; but that the respondent would not, "agree with any group to be the sole bargaining agency for all employees . . . either in the operat- ing group or in all groups;" and that "the employees who do not elect to organize will be treated . . . in the same manner." Whether or not this was the position taken by the respondent in May 1939, it was the position %N hich it took at a hearing before the Colorado ' In the complaint and at the hearing, 11Iay 22, 1939, was mentioned as the date of the first request to bargain. However, this undoubtedly is an error in view of the fact that the Union made only one request for recognition in May 1939 and the charge, filed May IT, 19.3,a, states May 1t1, 1939, as the date of the refusal to bargain. In the Inte: mediate Re. port, the Trial Examiner found that May 1ti, 1n39, was the date of the first request for recognition and the respondent in its exceptions did not question this finding. PUEBLO GAS & FUEL COMPANY 1041 Industrial Commission on September 11, 1939, which resulted from a strike notice served by the Union on August 16, 1939, in accordance with the Colorado Industrial Commission Act, and which resulted in an award on September 21 providing for certain improvements in wages and working conditions.'5 Furthermore, on September 11, Morrell again approached Keeler, who was accompanied by Donald C. McCreery, attorney for the respondent, and asked for recognition of the Union. McCreery replied that he would advise Morrell of the Company's position later if he would visit McCreery's office. This Morrell did, and was told by McCreery that he did not care to discuss the question of union recognition since the Board was going to hold a hearing. In view of the fact that the complaint herein, accompanied by notice of hearing was served on the respondent on September 20, it may be inferred that Morrell's visit to McCreery's office occurred between that date and October 9, 1939, the date of the hearing. As appears from the foregoing the respondent on May 16, 1939, and at all times thereafter, refused to bargain collectively with the Union. Indeed the respondent, in its answer, admits its refusal but seeks to excuse its action. The respondent asserts in justification of its conduct that : (1) the Union acted ultra vires in admitting to membership employees of the respondent since the respondent does not engage in business in the electrical field; (2) the Union is con- trolled by employees, a majority, of whom are employed by an electric iti]ity which is in competition with the respondent; (3) the public policy of the State of Colorado, declared in the Colorado anti- injunction act,16 precludes the respondent from recognizing as ex- clusive representative for the purposes of collective bargaining, a representative chosen by it majority of the employees in an appropri- ate unit, i. e., that "no majority, however large, may speak for a dissident minority"; and (4) in view of the Colorado Industrial Com- mission Act and the proceedings had thereunder, there is "no justifica- tion for the exercise of federal power." We shall consider these contentions in the above order. The Act requires an employer to bargain collectively with the representatives of his employees. As we have stated above, the alleged ultra vires does not affect the choice of representatives by employees. The respondent's justification on that ground for its failure to bargain with the Union is, therefore, without merit. We also find no merit in the contention that the respondent validly refused to bargain with the Union because a majority of the members 16 Sections 31 to 35, Inclusive, of the Colorado Industrial Commission Act (Ch. 97, Col. Stats. Ann . 1136). 1s Sections 76 to 87, inclusive, Ch. 97, Col. Stat. Ann. 1936. 1042 DECISIONS', OF NATIONAL. LABOR RELATIONS BOARD thereof were employees of the respondent's competitor. As pointed out by Mr. Chief Justice Taft in the American Steel Foundries case :17, They [labor organizations] were organized out of the necessi- ties of the situation. A single employee vas helpless in dealing with an employer . . . Union vas essential to give laborers op- portunity to deal on equality with their employer. They united to exert influence upon him . . . The right to combine for such a lawful purpose has in many years not been denied-in any court . . . To render this combination- at all effective, employees -must make this combination extend beyond one shop. It is helpful to have as many as may be in the same trade in the same community united, because 'in, competition between employers they are bound to be affected by the standard of wages of trade in the neighborhood.1s [Italics supplied.] The respondent also'seeks to attach significance to the fact that in the course of the hearings before the Colorado Industrial Commis- sion Morrell proposed to the respondent an agreement containing a provision that "The representatives of the Company will meet with the business manager of the Union in reference to any difference brought up' by any employee thereunder." 19 The respondent argues that since the business manager of the Union is elected by a member ship of which the respondent's employees constitute only a minority is American Steel Foundries v. Tri-City Trades Council, 257 U. S. 184, 209. Cf. Matte's of Pacific Greyhound Lines, Inc. and Brotherhood of Locomotive Firemen and Enginemen, 2 N. L. it. B. 431 . In that case, the respondent had urged , persuaded, and warned Its operators not to join the Brotherhood . The respondent, however, sought to explain and Justify such conduct on the ground that the Brotherhood had at times endeavored to curb the development and extension of motor transportation lines by -appearing before various commissions in opposition to applications for franchise and by sponsoring and supporting legislation favorable to the iailroads and their employees and Inimical to the motor car- riers and their employees . We said, "It may be that the Brotherhood, in Its dual capacity of representative for the enginemen and firemen employed In the railroad industry and for motor 'coach operators employed in the motor carrier transportation industry, at times finds Itself representing two groups of employees with conflicting interests. This cannot, however, justify the respondent's conduct toward its operators " See also Ohio Greyhound Lines, Inc., and Amalgamated Associatipn of Street Electric Railtcay and Motor Coach Employees of Amcriea and Division 1?07 (A. F. L.), 21 N. L. R. B. 751. is The claim made ade by the respondent in the Instant case is a variant of the contention which we have rejected that an emploier may Justify refusal to bargain with a labor or- ganization until such time as the labor organization organizes the employer's competitors. Bee Matter of Samuel Youlin, Murray H. Rosenburg, and Murray Youlin, doing business as I. Youlin and Company, a copartnership and International Ladies Garment 1Vorl,ers Union; C. I. 0, 22 N. L. R B 879; Matter of Pittsburgh Metallurgical Company, Inc. and Local 12,0?7 Gas and By-Products Cole and Chemical Workers Union, District 50, United Mine Workers of America, 20 N L It. B. 1077, and cases cited In footnote 27 therein, is So far as the record discloses , this provision was not intended other than as a usual assurance in collective agreements that the employer will meet with the chosen represent- ative of his employees to settle grievances arising under their contract . Indeed, the record does not show that the Union insisted upon the inclusion of such a provision or that the parties arii%ed at an impasse because of the clause ; on the contrary, it establishes that irrespective of the Union's position with respect to this clause the respondent was com- pletely determined not to bargain with the Union. PUEBLO GAS'& FUEL COMPANY , - 1043 the effect of such a clause would be to require the respondent; to deal with its employees through persons chosen by others. The argument is patently fallacious. In designating the Union as their representa= tive for purposes of collective bargaining the respondent's employees obviously chose to be governed by desires of the members of the Union as to the agent to deal with the respondent; a labor organiza- tion like any other organization, corporate or unincorporated, can act only through individuals. Indeed the respondent's argument amounts in essence to a claim that no labor organization other than a company union may properly represent its employees. The respondent also relies upon the declarations of policy of the Colorado anti-injunction act establishing a different principle of col- lective bargaining than that provided in the National Labor Relations Act.. The respondent urges in its brief that: Under the Federal act, the representative selected by the majority becomes the exclusive representative of all the employees in the unit, whereas, under the state law, the majority may select a repre- sentative to speak for themselves only, not to speak for the minority of employees. The respondent further urges that "it does` not 'appear that' the two enactments are repugnant, but that they represent' different- methods of dealing with the same problem, and securing recognition of the same principle, to- wit: collective bargaining." Accordingly the re- spondent contends, "the federal authority if established, should not be asserted unless and until an affirmative showing is made that the public policy declared by the state is in fact detrimental, burdensome and an obstruction upon the free flow of commerce." Were the construction of the Colorado statute urged by the respond- ent valid it would clearly be "repugnant" to the requirement of col- lective bargaining established by the Act. Indeed such a provision Congress regarded as entirely destructive of collective bargaining,20 and accordingly enacted that the representatives chosen by the ma- jority of the employees in an appropriate unit are the exclusive representatives of the employees in such unit, and required that em- ployers bargain collectively with such representatives. In imposing this duty to bargain collectively the Act has as its objective the stabili- zation of employment relations in order to prevent obstructions to, commerce; 21 the public policy embodied in the Act is of national concern and the Act is the supreme law of the land on the subject • 20 See House Report of Committee on Labor, 74th Congress, 1st Sess , Rep. No. 1147, pp, 20-22 ; Senate Report of Committee on Education and Labor, 74th Cong., 1st Session, Rep. No. 573, p. 13. 2 Section 1 of the Act. See also House Report of Committee on Labor, 74th Cong., 1st Bess., Rep NTo : 1147, p 20: Senate Report of Committee on Education and Labor, 74th Cong, 1st Sess , Rep . No 573, pp. 12, 13. 1044 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD matter covered by it. Moreover, the respondent's contention does not rest even upon a diverse State law. The Supreme Court of Colorado: in a recent decision has rejected the construction sought to be give1X the Colorado State anti-injunction act by the respondent.22 In that case, the Court said : It is generally conceded that the purpose of sections 76 and 77; supra'23 was to outlaw what was known as the "yellow dog" con= tract, by which an employer, prior to hiring a person, or there after, required him to sign an instrument in which he would promise, as a condition of his employment, that he would not join a labor union during its continuance, and that if he did, he would be discharged. It is now contended by plaintiffs that by the'enactment of sections 76 and 77 a union contract for a closed shop without the consent of the employees suffered a similar fate. Such a construction of the act is entirely contrary to its legislative intent and purpose, which was to give labor collective bargaining strength, unattainable by the individual worker owing to his economic dependence and helplessness. The meas- ure was enacted to assure him full freedom of association, with- out any coercion by the employer .. . Clearly, one purpose of the act is to permit the employee to be- come and remain a member of a labor organization, even should the employer succeed in entering into such agreement as is con- demned in section 77, supra. Its purpose is not to protect unorganized individuals who are the sole employees of one em- ployer, but the right of the employees, regardless of any agree- ment entered into with the employer, to act through an organization of their own choosing and not one under the domi- nation of the employer, if they so desire .. . ... [A] holding that a contract, if it obligates the employer to discharge employees unless they voluntarily join a labor organi- zation, is invalid, clearly is erroneous, because the agreement denounced in section 77, supra, is one between employer and em- ployees, and not between employer and a labor organization. Finally, the respondent urges that there is no justification for the exercise of federal power in the instant case, in view of the Colorado Industrial Commission Act and the proceedings had thereunder. The Colorado statute provides that: The industrial commission shall have jurisdiction of every dispute between employer and employee affecting conditions of 2 Denver Local Union v. Perry Truck Lines, Inc., March 18, 1940, C. C. H. Lab. Law Ser : par. 185S0. ffi These are the sections relied upon by the respondent in the instant case. PUEBLO GAS & FUEL COMPANY 1045 employment, or with respect to wages or hours, and such juris- diction shall continue until after final hearing of such dispueo and the entry of an award thereon.24 Strikes and lock-outs are made a misdemeanor unless the employees or employer have given the commission 30 days' notice of intention to so act and until after the final determination of the proceedings before the commission. Except where the parties have agreed to ^accept•the commission's award (and such was not the case in the pro- ceedings initiated by the Union) such award has no binding effect. The State law does not purport, to authorize the commission to re- strain the respondent from engaging in the unfair labor practices alleged in the complaint herein; the commission in its award did not purport to deal with those matters; and with the issuance of its award on September 21, 1939, all the authority of the commission be- came functus officio. Under these circumstances, there is obviously no merit in the contention advanced by the respondent. Moreover, the Act empowers the Board to prevent any unfair labor practices affect- ing commerce and expressly provides that "this power shall be ex- clusive . . ." (Section 10 (a) ). We find that the respondent on May 16, 1939, and at all times there- after refused to bargain' collectively with the Union as the exclusive representative of its employees in the appropriate unit in respect to rates of pay, wages, hours of employment, and other conditions of employment, and by such refusal the respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find that the activities of the respondent set forth in Section III, A and B 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 burdening and ob- structing commerce and the free flow of commerce. V. THE REMEDY It is essential in order to effectuate the purposes and policies of the Act that the respondent be ordered to cease and desist from certain activities and practices in which,we have found it to be engaged and, in aid of such order and as a means for removing and avoiding the consequences of such activities and' practices, that it be directed to take certain affirmative action, more particularly described below. 84 Italics supplied. 283034-41-vol. 23-67 1046 DECISIONS ' OF NATIONAL LABOR RELATIONS BOARD We have found that the respondent expressed hostility to the affilia- tion of its -employees with a labor organization . We find that the effects and consequences of that interference, restraint, and coercion constitute a continuing obstacle to the free exercise of the right of employees to self-organization and to bargain collectively through representatives of their own choosing . Accordingly, in order to ef- fectuate the policies of the Act, we will order the respondent to in4 elude in the notices to be posted within its premises a statement that employees are free to become or remain . members . of • International Brotherhood of Electrical Workers, Local Union No. 667-B. We have found that on or before May 13, 1939 , a majority of the ,respondent's employees within the unit which we have found to bo appropriate have designated the Union as their representative for tho purposes of collective bargaining, and that on May 16, 1939, and at all times thereafter, the respondent had refused to fulfill its obligate tions under the Act to bargain collectively with the Union. Accord- ingly, we shall direct the respondent to cease and desist from this unfair labor practice, and, upon request, to bargain collectively with the Union as the exclusive representative of the employees in the unit which we have found to be appropriate. By engaging in unfair labor pi ctices , the respondent has made serious incursions upon the rights guaranteed to its employees by the Act. In order to insure the full freedom of the respondent's em- ployees to exercise those rights it is essential that they be informed that the respondent will no longer engage in its unfair labor practices and that it will act in conformity to the provisions of our order. We shall therefore direct the respondent to post notices stating that it will not engage in the conduct from which it is ordered to cease and desist and that it will take the affirmative action therein required. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following: CONCLUSIONS OFiLAW 1. International Brotherhood of Electrical Workers Local-Union No. 667-B is a labor organization, within the meaning of Section 2 (5) of the Act. 2. All employees in the operating department of the respondent, including foremen but excluding the superintendent, the general street foreman, and clerical employees, constitute, and at all times herein material, const ,tuted, a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. 3. International Brotherhood of Electrical Workers, Local Union No. 667-B, is, and at all times since May 13, 1939, has been, the ex- PUEBLO GAS &FUEL COMPAlN'Y11047 elusive representative of all employees in such unit for the, purposes of collective bargaining, within the meaning ^of Section 9 (a) of the Act. 4. By refusing to bargain collectively with International Brother- hood of Electrical Workers, Local Union No. 667-B, as exclusive representative of all employees in such unit, the respondent had enm gaged in and is engaging in unfair labor practices, within the mean- ing of Section 8 (1) and (5) of the Act. 5. By, interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act,.the 're- ^spondent has engaged in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act., 6. The aforesaid labor practices are unfair labor practices affect- ing commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Rela- tions Act, the National Labor Relations Board hereby orders that the respondent, Pueblo Gas & Fuel Company, Pueblo, Colorado, its officers, agents, successors, and assigns, shall:' 1. Cease and desist from : (a) Refusing to bargain collectively with International Brother- hood of Electrical Workers, Local Union No. 667-B, as the exclusive representative of all employees in the operating department of the respondent, including foremen, but excluding the superintendent, the general street foreman, and clerical employees; (b) In any other manner interfering with, restraining, or coerc- ing its employees in the exercise of their rights to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in,con- certed activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Upon request bargain collectively with International Brother- hood of Electrical Workers, Local Union No. 667-B, as the exclusive representative of all employees in the operating department of the respondent, including foremen, but excluding the superintendent, the general street foreman, and clerical employees, in respect to rates of pay, wages, hours of employment, and other conditions of em- ployment; 1048 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post immediately in conspicuous places in its premises, and maintain for a period of at least sixty (60) consecutive days from the date of the posting, notices to its employees stating : (1) that the respondent will not engage in the conduct from which it is or- dered to cease and desist in paragraphs 1 (a) and (b) of this Order; and (2) that the respondent will take the affirmative action set forth in paragraph 2 (a) of this Order; and (3) that the respondent's employees are free to become or remain members of International Brotherhood of Electrical Workers, Local Union No. 667-B; , (c) Notify the Regional Director for the Twenty-second Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply herewith.