El Paso Electric Co.

National Labor Relations Board - Board Decisions

Jun 3, 1943

50 N.L.R.B. 56 (N.L.R.B. 1943)

In the Matter of EL PASO ELECTRIC COMPANY and AMALGAMATED
PLOYEES OF AMERICA, DIVISION 1256
Case No. R-5014.-Decided June 3, 1943
ASSOCIATION STREET, ELECTRIC RAILWAY AND MOTOR COACH EM-
Brown & Brooke, by Mr. Volney Dl. Brown and Mr. J. C. Brooke,
of El Paso, Tex., for the Company.
Mr. W. C. Roche, Mr. George F. Webber, Mr. F. D. Penn, and
Mr. Fred A. Hoover, of El Paso, Tex., for the Amalgamated.
Mr. J. L. Rasberry, of El Paso, Tex., for the Utility Workers.
Mr. William C. Baisinger, Jr., of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by Amalgamated 'Association Street,
Electric Railway and Motor Coach Employees of America, Division
1256, herein called the Amalgamated, alleging that a question affect-
ing commerce had arisen concerning the representation of employees
of El Paso Electric Company, El Paso, Texas, herein called the
Company, the National Labor Relations Board provided for an
appropriate hearing upon due notice before Henry J. Kent, Trial
Examiner. Said hearing was held at El Paso, Texas, on March 11,
13, 15, and 16, 1943. The Company, the Amalgamated, and Utility
Workers Union, Inc., herein called the Utility Workers, appeared;
participated, and were afforded full opportunity to be heard, to
examine'and cross-examine witnesses, and to introduce evidence bear-
ing' upon the issues. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. All
parties filed briefs, which the Board has considered. On April 30,
1943, the Board,issued a Decision and Order in the above-entitled
proceeding, dismissing the petition.' On May 13, 1943, the Board
1 The Board dismissed the petition on the ground that the collective bargaining contract
between the Utility Workers and the Company was a bar to a present determination of
representatives because the record failed to indicate that the Amalgamated had made a
timely request for recognition prior to the automatic renewal date of said contract.
50 N. L. R. B., No. 12.
56
EL PASO ELECTRIC COMPANY 57
vacated the aforesaid, Decision and 'Order. On May 15, 1943, the
Board issued a notice giving the parties 10 days in which to show
cause why the Board, in view 'of a certain stipulation in another
proceeding involving the Company, more fully discussed below,
should not find that a question concerning representation existed and
direct an election. On May 25, 1943, the Company and the Utility
Workers filed briefs in response to the notice to show cause. The
Company also requested permission to present additional evidence in
support of its contention that a company-wide unit is appropriate.
On May 26, 1943, the Company filed with the Board certain evidence
with respect to the • appropriate unit and also with respect to the
circumstances under which the Amalgamated's petition for investiga-
tion and certification of representatives was withdrawn in July 1942.'
The Board has considered the 'aforesaid briefs and the additional
proof submitted by the Company.
Upon the entire'record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
El Paso Electric Company is a Texas corporation- engaged in the
production , distribution , and sale of electricity and in the operation
of a street'railway and bus system in El Paso , Texas, and vicinity.
The Company's electric system serves an area in Texas and New Mexico
of approximately 700 square miles, including the cities of El Paso,
Texas, and Las Cruces , New Mexico, and 49 small towns and settle-
ments. The Company also operates the street -railway , system owned
by the El Paso and Juarez Traction Company which serves Juarez,
Mexico. The Company and the El Paso and Juarez Traction Com-
pany also jointly own and operate 2 international toll bridges over the
Rio Grande River, between El Paso and Juarez. The Company's gross
operating revenue for the year 1942 amounted to $4,433 ,496, of which
$353,546 was derived frown sales to customers in the State of New
Mexico. The Company admits that it is engaged in commerce within
the meaning of the National Labor Relations Act.
2 Since we have accepted the additional proof offered by the Company, we find it un-
necessary to rule on the Company's request The above-mentioned proof consists of an
affidavit, dated May 24 1943, and signed by John A Davis, Jr , superintendent of trans-
portation of the Company , an affidavit, dated May 24, 1943, and signed by Palmer Hutche-
son, an attorney representing the Company : certain correspondence between said Palmer
Hutcheson and the Board s agents, which is dated in October 1942 and May 1943 ; and
proof of service on the Amalgamated of the aforesaid affidavit of John A. Davis, Jr, The
Board accepts said eNidence and hereby orders it made a part of the record.
58 DECISIONS OF NATIO'NvALI LABOR RELATIONS BOARD
II. THE ORGANIZATIONS INVOLVED
Amalgamated Association Street, Electric Railway and Motor Coach
Employees of America, Division 1256, is a labor organization affiliated
with the American Federation of Labor, admitting to membership em-
ployees of the Company.
Utility- Workers Union, Inc.,,is an unaffiliated labor organization,'
admitting to membership employees of the Company.
I
III. THE QUESTION CONCERNING REPRESENTATION
On January 9, 1941, the Utility Workers and the Company entered
into a collective bargaining contract covering all non-supervisory em-
ployees of the Company. The contract contains the following terming
tion clauses :
This agreement shall take effect January 9, 1941, and shall remain
in effect for a period of one year from and after such date, and
from year to year thereafter unless superseded by other contracts
or changed or terminated in the manner herein after provided.
Either party, desiring changes in this agreement or termination
thereof, shall notify the other party in writing on or before Decem-
ber 1, of any year.
The January 9,1941, contract was supplemented by written agreement
of the parties on December 29, 1941, and amended in certain respects
as of September 1, 1942. However, the original termination clauses
have never been modified or changed and neither the Company nor the
Utility Workers gave notice of a desire to terminate or modify the
contract prior to December 1, 1942.
The Amalgamated began organizing the employees in the Company's
transportation division in December 1940, and on February 5 and 17,
1941, respectively, the Amalgamated filed with the Regional Director
of the Board a petition and an amended petition for investigation and
certification of representatives (Case No. 16-R-228). Thereafter, the
Board at the request of the Amalgamated issued an order authorizing
the withdrawal of the petition and amended petition by the Amal-
gamated. On May 23, 1941, the Amalgamated filed with the Regional
Director of the Board another petition for investigation and certifica-
tion of representatives (Case No. 16-R-274). The Board, acting upon
the recommendation of the Regional Director, issued an order dismiss-
ing said petition on,July 10, 1941. In June 1942 the Amalgamated
orally requested the Company to recognize it as the exclusive bargain-
ing representative of certain of the Company's employees. The Com-
pany refused so to recognize the Amalgamated because of the-existence
of the-,contract between the Company and the Utility Workers. On
EL PASO ELECTRIC COMPANY 59
June 9, 1942, the Amalgamated again filed with the Regional Director
a petition for investigation and certification of representatives (Case
No, 16-R-486) . Thereafter, upon being advised by the Regional'Direc-
tor that the matter should be held in abeyance and, the`petitioii'• with-
drawn in view of the pendency of the contempt proceedings hereinafter
referred to, the Amalgamated, on July 7, 1942,..requested'. leave to'
withdraw its petition without prejudice. . On July 14-, 1942, the Board
issued its Order granting said request. On December 2,1942, the Board
and the Company entered into a stipulation of facts which was incor-
porated in the record in a contempt proceeding then pending in the
Fifth Circuit Court of Appeals.8 We take notice of this stipulation.
-'Paragraph 38 of said stipulation reads :
Amalgamated is a going labor organization with a local union
in El Paso, Texas, having some members in the Company's trans-
portation department, and still contends that it is entitled to
recognition as the exclusive bargaining representative of the
employees in the Company's transportation department; however,
it has withdrawn its formal petition, before the Board to this effect
pending the disposition of this contempt proceeding.
By letter dated December 15, 1942, the Amalgamated renewed its
request,for recognition. In its reply to this latter request, the Com-
pany stated that it must defer action on the Amalgamated's request
pending the disposition of the, contempt proceeding in the Circuit
Court of Appeals .4 1
In view of the above facts, it is apparent that the'Company was
cognizant of the Amalgamated's claim of majority representation and
request for recognition on and immediately prior to December 1, 1942,
at which time the contract, by its terms° was automatically renewed.
It is also apparent that the Amalgamated, to 'the knowledge of the
Company, had been induced by the Board's Regional Director to with-
hold' formal renewal of its request for recognition and investigation
of representatives, pending the outcome of the contempt proceedings.5
Accordingly, we find that the contract between the Company, and the
Utility Workers is not a bar to an immediate determination of repre-
3 The stipulation of facts is contained in the record in N. L R. B. v. El Paso Electric'
Company, 133 F. (2d) 168 (C C. A. 5 ), in which case the Court , on January 27, 1943,
denied the Board's petition to adjudge the Company in contempt . The Board alleged
that the Utility Workeis was but a continuance of the El Paso Electric Company Em-
ployees Alliance , which organization the Board had previously held to be company domi-
nated and ordered disestablished in Platter of El Paso Electric Company and Local Union
585, International Brotherhood of Electrical Workers; and N. P . Clay, et al ., 13 N L. R B.
213, enf ' d, 119 F. ( 2d) 581 (C C. A. 5).
* This is the same proceeding set forth in footnote 2, supra
-6 The recital in paragraph 38 of the stipulation is substantiated by certain correspond-
ence between the Company and the Boaid 's Regional Office, dated in June and July 1942,
which is quoted in the correspondence attached to the affidavit of Palmer Hutcheson,,
referred to in footnote 2, sepia.
I
60 DECISIONS OF NATIONAL LABOR RELATIONS. BOARD -
sentatives since the Company was - aware of the Amalgamated's claim
to represent a rinajority of then Company's transportation division
employees and its request- for recognition as the exclusive bargaining
representative of these employees prior to the renewal date\.of the
cofitract.6
A statement of ,a Field Examiner of the Board, introduced in evi-
dence at the hearing; indicates that the Amalgamated and the Utility
Workers each represents a substantial number,of, employees in the
unit hereinafter found to be appropriate.'
the representation of employees of the Company, within the meaning
of Section 9 - (c) and Section 2 (6)' and (7) of the Act.
IT. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES
The Amalgamated contends that a'll employees in the Company's
transportation division, exclusive of supervisory employees and em-
ployees working in the overhead lines and track. department, and
bridge department employees, comprise an appropriate, bargaining
unit. This unit would include bus and streetcar operators, bus garage
and,streetcar barn mechanics. The Company and the Utility Workers
contend that-the unit should include all non-supervisory employees
of the Company as established by the contract between the Company
and.the Utility Workers. ,
While the Utility Workers has bargained collectively for the em-
ployees of the 'Company on a company-wide--basis, since the execution •
of -the January 9, 1941, contract, we are of the opinion that' this" -
history of collective bargaining is not conclusively determinative of
the appropriateness of a company-wide unit. We have frequently
held that street-railway, and bus employees and, other employees con-
nected with the transportation department, of an electric utility
0 Cf Corcoran Metal Products Corporation and United Electrical , Radio and Machine
Worhers of America, C I 0., 45 N L R B 439;' and'Matter of Fran). Palley &-Sons,
Inc and Local Union # 773 of the Inteinational Union of Operating Engineers , affiliated
"-with the Anaenscan Federation of Labor, 4r N L R B. 863
A statement of a Field Examiner of the Board , , introduced in evidence at the hearing,
states that the Amalgamated submitted 138 aplication for membership cards dated
between December 1940 and March 1943 , all of which bear apparently genuine signatures;
that 125'of the signatures are names of persons whose names appear on the Company's pay
roll of February la; 1943. which pay roll contains the names of 180 persons in the unit
alleged appropriate by the Amalgamated The Field Examiner also states that the Utility
Workers submitted 44 application for membership cards dated between 1940 and March
' 1942 , bearing apparently genuine signatures of employees whose names appear on the
Company's pay roll of Februaiy 15, 1943, in the unit alleged appropriate by the Amalga-
mated; and that the Utility Woikeis further relies on its contract with the Company to
substantiate its representation claim and asserts it as a bar to a present determination
of representatives -
At the hearing the Utility workers submitted a list of its membership in good standing
as of December 31, 1942 This list indicates that the Utility Workers has about 98
members in the unit alleged appropriate by the Amalgamated. I
We find 'that a question affecting commerce-.has arisen concerning
i
E,L PASO ELECTRIC COMPANY 61
company are a, sufficiently- homogeneous and identifiable group to,
constitute a unit distinct and apart from the other operational and
maintenance employees of the Company. As a general rule in such
cases, we permit the desires of the employees involved to control,
in part,-our determination of the appropriate unit or units.8 Accord-
ingly, we find that the employees' in the Company's transportation
division may properly constitute an appropriate unit or be included
in the larger unit presently rep; esented by the Utility Workers, and
we shall direct an election among these employees to determine their
desires in the matter.
There remains for consideration the composition of the voting
group. The issue here involves the propriety of including or exclud-
ing employees in the overhead lines and track department, and bridge
department employees. - I 1
The Company divides its operations into six divisions known as
the electric, accounting, new business, public directed, Mesilla Valley,
and the transportation- divisions. Each division is in turn divided
into departments. The transportation division includes the following
departments : operating, bridge, mechanical, and the overhead lines
and track department. The operating department is compi ised of
bus and streetcar operators who are hourly paid, while all other
employees of the Company receive a salary. The bridge department
is comprised of employees who collect tolls on the two toll bridges
operated by the Company. The mechanical department includes the
bus 'garage and streetcar barn mechanics: The overhead lines and
track department includes linesmen who maintain and repair the
overhead lines which supply the power necessary to operate the street-
cars,' and track workers who maintain and repair - the street-railway
tracks. The record di'scloses' that in the normal course of operations '
there is very little interchange of employees between the transporta-
tion division and-other divisions of the Company.
While the Utility Workers maintains its original position with
respect to a company- or system-wide unit, it also contends, in the
alternative, that in the event the Board finds a unit limited to employees
in the transportation division to-be appropriate, such a unit should
include all non-supervisory employees of that division. Thus it
would add employees in the overhead lines and track department
and bridge department employees to the unit sought by the Amal-
gamated. The Amalgamated has not attempted to organize any of
the employees iii these tTvo departments. The overhead linesmen are
under the jurisdiction of the International Brotherhood of Electrical
Workers, A., F. of L., and are not eligible to membership in ' the
I.
8 See Matter of Savannah Electric and Power Company and International Brotherhood
of Electrical Workers, et at., 48 N. L. R. B. 33.
62 DECISLONS OF NATIONAL .LABO'R RELATIONS BOAIRD
Amalgamated. The Amalgamated stated, at .the hearing; that, al-
though it has not organized the track workers or the bridge depart-
ment employees, it would be willing to have these employees included
in the unit. However, we. are of the opinion that since the overhead
linesmen are. not eligible to, membership in the, Amalgamated and
since both overhead linesmen and'track workers' comprise a separate
department, both groups should be excluded. We shall therefore ex-
clude employees in the overhead lines•and track department from the
voting unit. Although the bridge department employees are included
on the Company's pay roll as part of the transportation division, their
function is in no way related to the operation or maintenance of the
Company's street-railway and bus systems., Accordingly,, we shall
exclude the bridge department employees from the voting, unit.
We shall make no final determination of, the appropriate unit at
this time but shall direct 'an, election among the employees in the
Company's transportation-division, including bus and streetcar opera-
tors, bus garage and streetcar barn mechanics, but excluding super
visory employees, employees in the 'overhead lines and track depart-
ment, and bridge department employees, to determine whether they
desire to be represented by Amalgamated Association Street, Electric
Railway and Motor Coach Employees of America, Division 1256,
or by Utility Workers Union, Inc. If the majority of these employees.,
select the Amalgamated, -they shall constitute a separate unit for
bargaining purposes; otherwise, the petition will be dismissed.
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 Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it
is hereby
`DIRECTED that, as . part of the investigation to ascertain representa-
tives for • the purposes of collective bargaining with El Paso Electric
Company, El Paso, Texas, an election by secret ballot - shall be con-
ducted, as early as possible , but not later than thirty (30) days from
the date of this Direction of Election , under the direction and-
supervision of the Regional Director ' f or the Sixteenth Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 10, of said Rules and Regulations,
among the employees in the Company 's transportation division, in-
cluding bus and streetcar operators, bus garage and streetcar barn
mechanics , who were employed by the Company during the pay-roll
period immediately preceding the date of this Direction of Election;
EL PASO ELECTRIC COMPANY - 63
including employees who did not work during such pay-roll period
because they were ill or on vacation 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 supervisory
employees, employees in the overhead lines and track department,
bridge department employees, and employees who have since quit or
been discharged for cause, to determine whether they desire to be
represented by Amalgamated Association Street, Electric Railway
and Motor Coach Employees of America, Division 1256, or by Utility
Workers Union, Inc., for the purposes, of collective bargaining, or
by neither.