Pacific Gas & Electric Co.

National Labor Relations Board - Board Decisions

Apr 16, 1942

40 N.L.R.B. 591 (N.L.R.B. 1942)

In the Matter of PACIFIC GAS '&` ELEcTRIc COMPANY and UTILITY
WORKERS ORGANIZING COMMITTEE, C. I. 0.1
Case No. R-274.-Decided April 16, 194..
Jurisdiction : electric utility industry
Investigation and Certification of Representatives : existence of question: Com-
pany's refusal to accord petitioner recognition in a divisional unit, contending
that it was bound by Board's finding in original proceedings that a system-wide
unit was appropriate and that it could not recognize union until required to
do so by the Board ; labor organization making only a small showing in
division found to constitute appropriate unit permitted to withdraw its name
from ballot if it should so desire by notifying Regional Director within five days
after'receipt of Direction of Election ; election directed not to be withheld where
outstanding charges of unfair labor practices against employer do not 'sub-
stantially affect employees in the division found to constitute an appropriate
unit.
Unit Appropriate for Collective Bargaining : divisional unit found appropriate
despite Board's prior determination in'original proceedings that a system-wide
unit was appropriate.
Practice and Procedure : upon filing of amended petition, scope of unit amended
from a system-wide unit (as found appropriate in original proceedings) to a
division-wide unit.
Mr. Robert L. Condon and Mr. LeRoy Marceau, for the Board.
Mr. T. J.'Straub, Mr. J. Paul St. Sure, and Miss Anne McDonald,
,of San Francisco, Calif., for the Company.
Gladstein, Grossman, Margolis cC Sawyer, by M'r:• Harold M. Sawyer,
of San Francisco, Calif., for the C. I. O.
Mr. Richard Seely, of Sacramento,, Calif., for the California Union.
Mr. Cha'^le's J. Janigian, of San Francisco, Calif., for the I. B. E. W.
Mr. Arthur O. Shepard, of Fresno, Calif., for the W. U. E. U.
Miss Melvern R. Krelow, of counsel to the Board.
1 The original petition was filed by United Electrical and Radio Workers of America
(C I 0 ) In September 1937 its name was changed to United Electrical , Radio and
Machine Workers of America. Since July 1938, Utility Workers Organizing Committee,
C I 0 , has been the successor organization The amended 'petition filed herein , on August
13, 1941, was filed by Utility workers Organizing Committee, C: I. 0 See 13 N. L. R B
268 These , organizations are hereinafter severally ,called the C. I. O.
40 N. L. R B., No. 108
591
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SUPPLEMENTAL DECISION
THIRD DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE ,
On October 16, 1937, the National Labor Relations Board, herein
called the Board, issued•a Decision and Direction of Elections,' and
on November 20, 1937, an Amendment to Decision and Direction of
Elections,3 in the above-entitled proceeding, providing that an election
by secret ballot be conducted among the physical or outside forces of
the Company, with certain specific inclusions and exclusions.4 Fol-
lowing the election by secret ballot, which was conducted during the
period December 6 to 14, 1937, the C. I. 0.5 filed objections, a
petition for a hearing on the objections, and supplemental objections
to the Regional Director's Intermediate Report on the ballot. Subse-
quently the C. I. 0. filed charges and amended charges of unfair labor
practices involving Section 8,(1) of the Act. The representation case
and the case initiated by the filing of charges were consolidated and
a hearing was held. On June 14, 1939, a Decision, Order and Second
Direction of Election was issued by the Board.6 No election was con-
ducted pursuant to this Direction, pending dissipation of the effects of
the unfair labor practices. In view of our findings hereinafter, we
shall order this Direction vacated and set aside.
On August 13, 1941, the C. I. 0. filed with the Regional Director for
the Twentieth Region (San Francisco, California) an amended peti-
tion alleging that a question affecting commerce had arisen concerning
the representation of employees at the East Bay Division, herein called
the East Bay Division, of Pacific Gas & Electric Company, San Fran-
cisco, California, herein called the Company, and requesting an investi-
gation and certification of representatives pursuant to-Section 9 (c)
of the National Labor Relations Act, 49 Stat. 449, herein called the
Act. On October 17, 1941, 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, as amended, ordered the
representation proceeding severed from the unfair labor practice
2 3 N 'L R . B. 835.
s4 N.L R B 180
4 The Direction also provided for an election among certain employees of the Company's
streetcar and motorbus system That election has been held and is not now in issue
Amalgamated Association of Street , Electric Railway and Motor Coach Employees, Local
Division No 256 , was certified as the representative of the above employees for purposes
of collective baigaining pursuant to that election. 5 N. L R . B. 310.
5 See footnote 1, supra.
6 13 N. L . R. B. 268.
PACIFIC GAS & ELECTRIC COMPrANY ' 593
proceeding and ordered an investigation and authorized the Regional,
Director to conduct it and to provide for an appropriate hearing upon
due notice.
On October 20, 1941, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company and the
C. I. 0.; and upon International Brotherhood of Electrical Workers,
affiliated with the American Federation of Labor, herein called the
I. B. E. W.; California Gas & Electric Employees' Union, herein called
the California Union ; 7 and Western Utility Employees' Union, herein
called the W. U. E. U., labor organizations claiming to represent em-
ployees directly affected by the investigation. Pursuant to notice, a
hearing was held on November 4, 5, 6, 7, 10, 12, and 13, 1941, at San
Francisco, California, before Robert M. Gates, the Trial Examiner
duly designated by the Chief Trial Examiner. The Board, the Com-
pany, the C. I. O., the I. B. E. W., and the California Union, were
represented by counsel and participated in the hearing. The attorney
for and on behalf of Western Utility Employees' Union entered an
appearance but thereafter withdrew from the proceeding, on the
ground that his organization did not have any real interest in the case.
Full opportunity to be heard, to examine and cross-examine witnesses,
and to introduce evidence bearing on the issues was afforded all parties.
At the commencement of the hearing the Company moved for a dis-
missal of the amended petition. For reasons hereinafter stated, the
motion is hereby denied. During the course of the hearing the Trial
Examiner made several rulings on motions and on objections to the
admission of evidence. The Board has reviewed the rulings of the
Trial Examiner and finds that no prejudicial errors were committed.
The rulings are hereby affirmed.
7 On August 14 and October 10, 1941 , the I B E W filed charges of unfair labor practices
involving Section 8 ( 1) and ( 2) of the Act ( Case No xx-C-1048 ) alleging that the Company
had dominated and interfered with the formation or administration of the Employees
Welfaie Committee , the California Union , and the Western Utility Employees' Union The
Board issued its complaint dated October 21, 1941 , and a hearing was thereafter held,
During the course of the hearing stipulations were entered into on December 4 by and
between the Board , the Company ,' the I B. E W , the C I 0 , and the California Union,
and on December 23, 1941 , by and between the Board and the Employees Welfare Committee,
in which stipulations it was agreed that the Board might enter an order requiring the
Company to withdraw all recognition from the California Union and the Employees Welfare
Committee and to disestablish completely said unions ; and further requiring the Com-
pany to post notices for a period of 60 days from the date of the Board ' s approval of the
stipulations that the Company would cease and desist from ( 1) in any manner dominating
or interfering with the administration of the California Union or the Employees Welfare
Committee or contributing support to said unions , and (2 ) giving effect to any agreement
entered into with either union or to any extension , renewal , modification , or,supplement
thereto These stipulations were approved by the Board on January 5, 1942 The Order
approving these stipulations was served on the' parties on January 6. 1942 The remaining
charges of unfair labor practices involving the W. U. E U are presently under consideration
by the Board.
455771-42-vol 40-38 '
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 8, 1941, the C. I. 0., and on December 15, 1941, the
I. B. E. W. and the Company filed briefs which the Board has con-
sidered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
The parties stipulated at the hearing that the findings in the
Board's Decision, Order and Second Direction of Election 8 relating
to the business of the Company substantially described the activities
and operations of the Company at the present time, with the following
additions: (1) business of the Company and operations of the same
character have increased in size or volume; (2) physical properties
and operations of the San Joaquin Light R Power Company, together
with its subsidiary, Midland Counties-Public Service Corporation,
have been merged with and taken over by and are now operated _by
the Company as a part of its system.
The Board therefore finds and incorporates by-reference herein all
facts found in the prior Decision 9 in the Section entitled "The
business 'of the Company." The Board also finds that the Company
is presently engaged in substantially the same activities and opera-
tions, and that said operations have been expanded and enlarged
since 1939, and now include the properties and operations of the San
Joaquin Light ,& Power Company and its subsidiary, Midland Coun-
ties Public Service Corporation, which the record discloses were
acquired by the Company on January 1, 1939.
II. THE ORGANIZATIONS INVOL'vED
Utility Workers Organizing Committee is a labor organization affili-
ated with the Congress of Industrial Organizations, admitting, to
membership employees of the Company.
International Brotherhood of Electrical Workers is a labor organi-
zation affiliated ^with the American Federation of Labor, admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On or about August 28, 1941, the C. I. O. requested the Company
to recognize it as the exclusive bargaining representative of the
Company's employees engaged in the "outside forces" of its East Bay
Division, with certain specific inclusions and exclusions. -The Com-
8 13 N L R B. 268, at pp 276-281.
° 13 N. L R. B. 268.
PACIFIC GAS & ELECTRIC COMPANY 595
pany denied the request, on the ground that it was bound by the
Board's previous finding that a system-wide unit is appropriate and
that it could not recognize the C. I. O. until required to do so by the
Board.
A statement of a field attorney of the Board, introduced in, evi-
dence, shows that a substantial number of employees in the unit here-
inafter found to be appropriate have designated the C. I. O. as their
representative for the purposes of collective bargaining.10
We find that a question has arisen concerning the representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE i
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial re-
lation 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. 1
V. THE APPROPRIATE UNIT
The C. I. O. contends that all employees of the Company in its East
Bay Division engaged in the outside forces, including outside field
employees and workers employed in the generating -stations, sub-
stations, gas plants, steam plants, and other shops and plants, but
10 The field attorney reported that the C I 0 presented 17 application cards for
membership , 10 dated later than August 1, 1941, and 7 undated , membership and dues
records containing 548 names , 450 of which show dues payments in August 1941 or subse-
quent thereto , 62 show dues payments between January 1 and July 31, 1941, and 36 show
no clues payments during 1941 . Of the 17 application cards submitted , 16 bear apparently
genuine signatures of persons on the Company's pay roll of September 1941 Of the 548
names in the membership and dues records submitted , 457 are the names of persons on the
Company's pay roll of September 1941 in the unit alleged by the C I • 0 to be.appropriate
During the hearing the C I 0 presented to the Trial Examiner 81 pledge cards, which
were not checked by him against any pay roll , 36 were dated October or November 1941,
bearing apparently genuine signatures , 9 were dated since October 24, 1941, bearing appar-
ently genuine signatures, 24 were undated , 9 were unsigned , 1 was a duplicate , and 2 were not
in the unit There are approximately 1,200 employees on the Company' s pay roll of Sep-
tember 1941, in the alleged unit
The field attorney further reported that the •I B E W presented 11 authorization cards,
3 dated subsequent to August 1, 1941, and 8 dated between June and July 1941 ; 4 application
cards, all dated in October 1941 ; membership roster and dues records containing names
of 535 persons in the unit claimed appropriate by it, of which 71 were contended to be
employees in the unit claimed appropriate by the C I 0 Of the 71 names in the, member-
ship roster 62 were shown to have made dues payments subsequent to August 1, 1941,
and 9 between July 1 and 31, 1941. Of the 71 names in the membership roster and
dues records, 21 are the names Qf persons on the Company ' s pay roll of September _1941 in
the unit alleged by the C I 0 fo be appropriate The membership roster and dues record,
the authorization cards and the application cards were not checked against the Com- -
pany's pay roll of.September 1941, in the unit alleged by the I B. E W. to be appropriate
in which unit there are approximately 10,000 employees •
596 DECISIONS OF NATIONAL I;ABOR RELATIONS BOARD
excluding officials, executive officers, the'sales force. mappers, hydrog-
raphers, inspectors, comptometer operators, building service em-
ployees, employees in the central warehouse supply depot, repair shop,
and laboratory, meter readers, combination meter readers and col-
lectors, collectors, estimators, dispatchers, watchmen, and also-super-
visory employees above the rank of job foreman, constitute an ap-
propriate unit.
The I. B. E. W. contends that the unit claimed by the C. I. 0. is
not appropriate and that the appropriate unit is the system-wide unit.
It states that a unit of all outside employees in which the Board di-
rected^an election in its prior decisions,' with the same classifications
but expanded to cover the later acquisitions of the Company, consti-
tutes an appropriate unit.
The Company's position is that the system-wide unit is appropriate;
it makes no contention as to the inclusion or exclusion of particular
classifications of employees.
As heretofore stated, the Board in 1937 directed an election among
those employees of the Company who were engaged in outside or
physical forces, including outside field employees, workers employed
in generating stations, in substations, in the gas plants, in the steam
plants, and in other shops and plants, and meter readers, combination
meter readers and collectors, salesmen, collectors, and, estimators, up
to and including the rank of job foreman but excluding employees
above that position.
The C. I. 0. gives the following reasons for now seeking a unit
of employees of a single division of the Company instead of a
system-wide, unit of employees : (1) It claims that as a result of
unfair labor practices of the Company, and the long-drawn-out con-
troversy resulting therefrom, the C. I. 0. has weakened in power,
influence, and membership among the employees, and its organization
upon a system-wide basis has been greatly impaired; (2) that the
East Bay Division is functionally independent of the other divisions
and is an appropriate collective bargaining unit; and (3) that sub-
stantial self-organization of employees of the Company is present only
in the East Bay Division.
Feasibility of the East Bay Division as a separate bargaining unit
The Company is engaged in the business of generating, buying,
transmitting, selling, and distributing electric energy, and of buying,
manufacturing, transporting, selling, and distributing gas. The ter-
ritory served by the Company is the northern, and central part of
113 N L . R. B. 835; 13 N . L. R. B 268..
PACIFIC GAS & ELECTRIC COMPANY 597
California, an area of more than 100,000 square miles. It is one of
the largest utility corporations in the United States, and as of Sep-,
tember 1941, employed 13,644 employees.
The Company's general offices are located in San Francisco, where
its general policies are determined and the executive control of the
Company is centered. For managerial and operating purposes the
Company's system is separated into 13 geographical divisions, with the
number of employees in the various divisions ranging from 141 to
2,041, and a natural gas division which functions throughout the entire
system. Each division has an administrative head, who is the divi-
sion manager. Each division has its own accounting system for
handling the business done in that' division. The division managers
interview applicants for jobs and make recommendations to the per-
sonnel department, which is located in the general office. In emer-
gencies, the division managers hire people to work in their divisions
without first obtaining the approval of the personnel department.
Transfers of employees from one division to another are handled by
division managers without consulting the general office. Division
managers have the authority to discipline and suspend employees in
their division without approval from the personnel department. Di-
vision managers handle and have authority finally to settle all minor
grievances. However, employees have the right of appeal to the cen-
tral personnel' department. The duties, responsibilities, and func-
tions-of employees within each division are principally confined to
that division.
The facts above set out with reference to the divisions generally
also apply to the East Bay Division. The East Bay Division was
established in 1920, and its geographical boundary lines have re-
mained substantially the same since that time. This division, with
1,858 employees, is the second largest in the Company's system. It
is in a thickly populated industrial area and serves 240,074 electric
customers and 178,780 gas customers. The only division which serves
a greater number of gas and electric customers is the San Francisco
Division. The East Bay Division is 1 of the 4 divisions which do
not operate hydroelectric plants for generating power. Most of the
divisions in which the hydroelectric plants are located are in moun-
tainous regions with scant population. Their function is chiefly pro-
duction of power, while the primary function of the East Bay Divi-
sion is distribution of power to customers. Of the local hiring done
by the divisions during the first 9 months of 1941, the number of
employees hired locally by the East Bay Division was 315, which is
greater than that occurring in- any other division. Although the
record discloses that the East Bay Division is part of the Company's
integrated utility system, it,is clear from the facts set out above that
598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
it is a semi -autonomous administrative unit of the system, and that
within the framework of the ' Company's general policy many phases
of labor relations and personnel matters are handled locally and with-
out -reference to the general offices of the Company.
The Company contends that collective bargaining on a division basis
is not feasible . However, the record discloses that `the Company and,
another labor organization presently have an agreement which covers
the outside employees of the ,San Joaquin Power Division of the Com-
pany. Furthermore, on August 13, 1941, the Company entered into
a collective bargaining. agreement with that organization covering
all clerical employees in that division. P. N. Downing, the Company's
vice president and manager , testified that the technical and func-
tional operations of that division and of the others do not differ in
material respects . We conclude that the East Bay Division can func-
tion effectively as a separate unit for the purposes of collective
bargaining.
History of labor relations and extent of organization among
employees of the Company
The Company and the I. B.T. W. contend, however, that the Board
should adhere to its prior decisions in this proceeding directing elec-
tions in a unit of all outside employees of the entire system. • The
C. I. 0., on the other hand, points to the fact that from 1937 to 1939
the Company engaged in unfair labor practices which remained un-
remedied until August 1941, thereby effectively defeating any imme-
diate , possibility of establishing collective bargaining on a system-wide
basis, and that substantial self-organization of employees now exists
only in the East Bay Division.
Between 1905 and 1920 the Company and its predecessors executed
collective bargaining agreements with the I. B. E. W . covering certain
classifications of employees throughout they system who were members
of the I. B. E. W. In 1921, following a strike, all contracts with the
I. B. E. W . were terminated , and since then, that - organization has
had no bargaining relations with the Company. A few months prior
to the first hearing in this proceeding , in 1937, the I. B. E. W. began
a vigorous campaign for membership on a comprehensive industrial
basis , attempting to organize clerical as well as outside employees. At
the time of that hearing the I . B. E. W. claimed 500 members, including
25 clerical employees , out of a total of some 10,000 employees.
The C. I. O.'s organizational, efforts started in 1933.12 As its mem-
bership increased it made unsuccessful efforts to bargain with the
Company. In May 1937 it claimed to represent a majority of the
12 See footnote 1, swpra.
I
PACIFIC GAS & ELECTRIC COMPANY 599
Company's outside employees on a system-wide basis, disclosed evi-
dence indicating a membership of approximately 2,800, and had estab-
lished 10 local organizations, the membership of which was confined
to employees of the Company. The membership was chiefly among
outside employees, of whom there were approximately 6,000.
On May 19, 1937, the C: I. O. filed a petition in the instant -proceed-
ing alleging that a question had arisen concerning representation
among outside employees of the Company, excluding office employees.
The California Gas and Electric Employees' Union and the I. B. E.'W.
were named in the petition' as claiming to represent employees of the
Company. After a hearing, in which all three labor organizations
participated, the Board issued its Decision and Direction of Election
on October 16, 1937, providing for a system-wide election among all
employees in "the outside or physical,employees" of the ,Company'
Prior to the election, the I. B. E. W. withdrew from theballot,14 and
in the ensuing election between the C. I. O. and the California Union
the latter polled a majority of the votes cast." By reason of the cir-
cumstances hereinafter described, no labor organization ;vas 'certified
as the exclusive bargaining representative of employees as a result of
that election, and since that election in 1937 the outside ,or physical
employees have had no collective bargaining relations with the Com-
pany, either on a system-wide basis or in any division of the system
involved in that election.
Immediately after the 1937 election the C. I. O. filed objections to
the Regional Director's Report on the Ballot and a petition for a
hearing on objections. The objections alleged'that the Company, had
interfered with and coerced the employees in their' right to `select
'representatives of their own choosing. At the same time'the C. I. 0.
embraced its objections in charges of unfair labor practices'within the
meaning of Section 8 (1) of the Act, which it filed with the Board.
With regard to the unfair labor practices, the Board-issued a complaint
on August 13, 1938, which alleged, in substance, that the Company
from April 1937 to the date of the complaint had interfered with -the
self-organization of its employees and their freedom of choice of rep-
resentatives for collective bargaining by various and sundry acts,
which included, among others, making known to its employees the
Company's opposition to the C. I. 0., its disapproval of membership
therein, by its employees, and its approval of the California Union
'3 3 N L R B 835 - - - -
144 N L R B 180
'b California Union won by a vote of 3,550 to 2,254. The election results showed in part
the following :
California Union------------------------------------------------ 3,,550
C I 0----------------------------------------------------- 2,254,
Neither --------------- =---------------------------------------- 126
Challenged
------------------------------------------------------ 982
600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as a representative of the employees for purposes of collective
bargaining.
Upon further proceedings in conformity with the Act, the Board
found that the employees had not been afforded an'opportunity to
choose representatives free from intimidation, coercion, and interfer-
ence on the part of the Company, and that, therefore, the election of
1937 was null; void, and of no effect, and directed a new election be held
at some future date to be determined by the Board after the, effects of
the unfair labor practices had been dissipated. In the complaint case
the Board issued its decision predicated upon findings of 8 (1) as
charged and ordered the respondent to cease and desist therefrom.',,
Upon the Company's refusal to comply with the Board's order, the
Board petitioned the Circuit Court of Appeals for the Ninth Circuit
for enforcement. The Board's order was enforced by the Circuit
Court of Appeals on May 13, 1941, in National Labor Relations Board
v. Pacific Gas c Electric Company.17 Compliance by the Company
with that order of the Board was not effected until some time in
August 1941.
In that month the International Brotherhood of Electrical Workers
had filed charges 1, of unfair labor practices within the meaning of
Section 8 (1) and (2) of the Act (Case No. XX-C-1048) alleging that
the Company had dominated and interfered with the formation or
administration of the Employees Welfare Committee, the California
Gas and Electric Employees' Union, and the Western Utility Em-
ployees Union. The Employees Welfare Committee and the Cali-
fornia Gas and Electric Employees' Union were alleged to be function-
ing in all territorial divisions in the Company's system and, therefore,
to be interfering with all employees throughout the system 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 concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection. West-
ern Utility Employees Union, however, was alleged tq be operating
only in one territorial division of the Company, namely, the San Joa-
quin Power Division. After the Board issued its complaint embracing
these allegations, stipulations were entered into by the Company, the
I. B. E. W., the C. I. 0., the California Union, and the Board, on
December 4, 1941, and by the Employees Welfare Committee and the
Board on December 23, 1941, settling the unfair labor practices relat-
ing to the California Union and the Employees Welfare Committee.
The stipulations provided for the dissolution and complete disestab-
3913 N L R B 268.
37118 F. (2d) 780.
v These charges were filed on August 14 and October 10, 1941.
PACIFIC GAS & ELECTRIC COMPANY 601
lishment of the California Union and the Employees Welfare Com-
mittee, and for the posting of notices, to remain posted for a period of
60 days, stating that the Company would cease and desist from (1) in
any manner dominating or interfering with the administration of the
California Union or the Employ, 's Welfare Committee or contribut-
ing support to said organizations, and (2) giving effect to any agree-
ment entered into with either organization or to any extension,
renewal, modification, or supplement thereto.19 The Company posted
notices on March 16, 1942, in compliance with the stipulation and the
posting period will therefore expire on May 15, 1942. The remaining
charges of unfair labor practices involving only the Western Utility
Employees Union are presently pending before the Board.
From the foregoing facts, it is clear that from April 1937 until June
1 939 the Company had been engaging in unfair labor practices on a
system-wide basis, which were unremedied until August 1941, and in
other conduct from which the Company in December 1941 agreed to
cease and desist. Its employees have been interfered with, restrained,
and coerced in the exercise of their rights to self-organization and to
form, join, and assist labor organizations. Although both the
I. B. E. W. and the C. I. O. have attempted to organize the outside
employees on a system-wide basis, neither has been successful in
doing so. In 1937, the I. B. E. W. had approximately 500 members
throughout the system. In November 1941, it was able to show a
membership of only 535 among the approximately 10,000 in the
system-wide unit it contends to be appropriate.' In May 1937 the
C. I. O. apparently had some 2,800 members and 10 locals among 6,000
outside employees throughout the system. During the succeeding
years, while the Company was engaging in unfair labor practices
which were unremedied until August 1941, the record discloses that
the membership of the C. I. O. substantially decreased and a number
of its locals "folded up." Only in the East Bay Division has the
C. I. O. been able to maintain a substantial membership. We are
satisfied and find that the long unremedied unfair labor practices of
the Company have contributed both to the collapse of the C. I. O. as
a system-wide employee organization and to the failure of the
I. B. E. W. during the past 4 years to make substantial membership
gains among employees throughout the system.
We have previously had occasion to point out that a prior deter-
mination of.the unit appropriate for the purposes of collective bar-
19 The collective bargaining contract between the Company and the California Union cov-
ered only clerical employees of the Company, and specifically excluded all outside employees
and all classifications previously included in the Board's prior Decisions and Directions of
Election ( 3 N L R B . 835; 13 N L R B 268).
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gaining is not necessarily controlling 20 and that upon a material
change in circumstances we will depart from our earlier determi-
nation .21
Turning to consideration of the contentions of the parties in the
light of the foregoing principle, we observe, first, that whatever
may earlier have been the situation, no employee self-organization
of any consequence now exists on a system-wide basis. The C. I. O.
has disclosed evidence of substantial, membership in the East Bay
Division, indicating the present desire of those employees to secure
the benefits of collective bargaining. The I. B. E. W., contending
that only a system-wide unit is appropriate, has made a showing
of membership which is wholly insufficient to support a contention
that employees throughout the system presently desire to bargain
on a system-wide basis. -
We note that only the California Union has ever demonstrated its
representation of a majority of the employees in the system. That
union has since been disestablished by the Company pursuant to stipu-
lation. True the C. I. O. once commanded the allegiance of a substan-
tial number of the system's employees. That union now seeks merely
to be permitted to demonstrate that it has held the allegiance of a-
coherent group within the system. The I. B. E. W., alone, has never
achieved a substantial membership among system employees, and it
alone, of the labor organizations involved seeks to invoke a rule of
stare decisis. To grant the contention of the Company, whose unfair
labor practices must be deemed to have contributed to the impairment
of the C. I. O.'s representation on a system-wide basis, and the conten-
tion of the I. B. E. W. which has never, in the years iii question,
achieved a substantial representation of employees on that basis, would
be to deny the only employees at present in a position to bargain col-
lectively, those in the East Bay Division, an opportunity to exercise
the rights guaranteed them in the Act, and would compel them to wait
until such time as the employees in the other 12 territorial divisions of
the Company may organize themselves in substantial numbers. We
believe that the purposes of the Act are best effectuated by rendering
collective 'bargaining an immediate \possibility wherever the circum-
stances indicate that it is feasible to do so.
, 20 Matter of Pacific Greyhound Lines and Amalgamated Association of Street, Elect? io
Railway and Motor Coach Employees of America, 9 N. L R B 557, 573-574
21 See for example Post-Standard Company and Syracuse Mailers Union, Local No. 73,
39 N. L. it. B. 1308 See also Matter of Jones & Laughlin Steel Corporation and Na-
tional Organization Masters, Mates & Pilots of America, Local No 25, Affiliated with
the American Federation of Labor, 37 N. L. it. B. 366; Matter of International Nickel Co.,
Inc. and Square' Deal Lodge No.' 40, Amalgamated Association of Iron, Steel, and Tin
Workers of North America, Through Steel Workers Organizing Committee,'7 N L it. B:
46; Matter of Hoffman Beverage Co. and International Brotherhood of'Firemen and Oilers,
Local ##55, 8 N. L. R B. 1367; Matter of Wilson and Co , Inc and International Brother-
hood of Teamsters, Chauffeurs, Stablemen and Helpers of America, Local #202, affiliated
with the A F. of L, 25 N. L R B- 938.
PACIFIC GAS & ELECTRIC COMPANY 603
In view of the fact that the East Bay Division can function effec-
tively as a separate unit for'the purposes of collective bargaining and
substantial self-organization among the employees is at present limited
to that division, principally because of the Company's past conduct, we
conclude that a unit confined to the employees of the East Bay Division
is appropriate for the purposes of collective bargaining.
Classifications of employees in issue
In its prior decisions the Board included in the system-wide unit of
outside field employees, workers employed in generating stations, sub-
stations, gas plants, steam plants, and other shops and plants, meter
readers, combination meter readers and collectors, collectors, salesmen,
and estimators, up to and including the rank of job foreman, and
excluding only, employees above the rank of job foreman and clerical
employees. -
The C. I. 0. contends that the following classifications, which were
not previously excluded from the system-wide voting unit should now
be excluded from a unit limited to the East Bay Division, on the
ground that they are "white collar workers," that they do not work
with tools and, are not "physical" employees : the sales force, mappers,
inspectors, meter readers, collectors, combination meter readers and
collectors, estimators, dispatchers (none on the East Bay Division pay
roll), hydrographers (none in the East Bay Division), watchmen, and
building service employees. There has been no change in the duties of
these employees since the Board's previous decision, and we shall there-
fore include in the unit those classifications which are employed in the.
East Bay Division:
The C. I. 0. further contends that the central warehouse, supply
depot, repair shop, and laboratory in Emeryville, California, located
geographically in the East Bay Division, are not attached to the East
Bay Division and therefore that employees engaged in those opera-
tions should be excluded from the unit. The central warehouse, sup=
ply depot, repair shop, and laboratory serve the entire system of the
Company and are not a part of any, division. We shall therefore
exclude them from the unit.22
The parties agreed that comptometer operators should be excluded
from the unit, and we will exclude them from the unit.
We find that all employees in the outside forces of the Company in
its East Bay Division, including outside field employees up td the rank
of job foreman, workers employed in the generating stations, substa,
tions, gas plants, steam plants, and other shops and plants, and meter
readers, combination meter readers and collectors, collectors; salesmen;
C
^ See The,Westei n Union Telegraph Company and The Comununicatsons Guald, et at, 39
N. L R. B 287,
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
estimators, mappers, inspectors, watchmen. and building service
employees, but excluding officials, executive officers, comptometer op-
erators, clerical and office employees, employees above the rank of job
foreman, and employees of the central warehouse, supply depot, repair
shop, and laboratory located in Emeryville, California, constitute a
unit appropriate for purposes of collective bargaining. We further
find that said unit will insure to employees of the Company the
full benefit of their right to self-organization and to collective bargain-
ing and will otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
Since the Board's Second Direction of Election, issued on June 14,
1939, is outstanding, we shall order it vacated and set aside. Counsel
for the I. B. E. W. stated in the record in the instant case that because
of the pending charges of unfair labor practices, a fair election cannot
be held. We have previously pointed out that the Company has dises-
tablished the California Union and the -Employees Welfare Coln- -
mittee, and has otherwise complied with the stipulations of December
4 and 23, 1941, designed to remedy all unfair labor practices affecting
the East Bay Division. The I. B. E. W. was a party to the stipula-
tion of December 4, 1941. The remaining charges of unfair labor
practices relate to the W. U. E. U., the operation of which is limited
to the San Joaquin Power Division of the Company. We are of the
opinion that the outstanding charges 'do not substantially affect
employees in the East Bay Division, and that there is no reason for
withholding our Direction of Election.23 Even though the I. B. E. W.
has made only a small showing in the East Bay Division, we shall,
nevertheless, provide it a place on the ballot. If, however, within 5,
days after the receipt of this Direction of Election, the I. B. E. W.
does not desire to appear upon the ballot and' notifies the Regional
Director to that effect, its name shall be omitted from the ballot.2' We
find that the question concerning representation which has arisen can
best be resolved by an election by secret ballot among the:employees.in
the' appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
Since, in the absence of waiver by both labor organizations, no election
should be held until compliance with the above-described stipulation
has been completed on May 15, 1942, we shall direct that the election
be held as early as possible within the thirty (30) day period following
that date.
"See The Western Union Telegraph Cpmpany and Amerioan Federation of Labor, Com-t
mereial Telegraphers Union, 30 N . L. R. B. 1169.
24 Since the California Union has been dissolved and completely disestablished , we shall
not place it on the ballot.
PACIFIC GAS & ELECTRIC COMPANY 605
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 at the East Bay Division of Pacific Gas &
Electric Company, Saii Francisco, California, within the meaning of
Section 9 (c) and Section 2.(6) and (7) of the Act.
2. All employees in the outside forces of the Company in its East
Bay Division, including outside field employees tip to the rank of
job foreman, workers employed in the generating stations, substations,
gas plants, steam plants, and other shops and plants, and meter read-
ers, combination meter readers and collectors, collectors, salesmen,
estimators, mappers, inspectors, watchmen, and building service em-
ployees, but excluding officials, executive officers, comptometer opera-
tors, clerical and office employees, employees above the rank of job
foreman, and employees of the central warehouse, supply depot, repair
shop, and laboratory located in Emeryville, California, constitute a
unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) 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 Rela-
tions Act, 49 Stat. 449, and pursuant to Article III, Section 8, of
National Labor Relations Board Rules and Regulations-Series 2, as
amended, it is hereby
DIRECTED that, as'part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Pacific Gas & Electric Company, San Francisco, California, at
its East Bay Division, an election by secret-ballot shall be conducted
as early as possible within the thirty (30) day period following May
15, 1942, under the direction and supervision of the Regional Director
for the Twentieth Region, acting in this matter as agent for the
National Labor Relations Board, and subject to Article III, Section 9,
of said Rules and Regulations, among all employees in the outside
forces of the Company in its East Bay Division, who were employed
during the pay-roll period immediately preceding the date of this
Direction, including outside field employees up to the rank of fore-
man, workers employed in the generating stations, substations, gas
plants, steam plants, and other shops and plants, and meter readers,
combination meter readers and collectors, collectors, salesmen, esti-
mators, mappers, inspectors, watchmen, building service employees,
0
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and employees who did not work during such pay-roll period be-
cause they were ill or on vacation or in the active military service or
training of the United States, or temporarily laid off, but excluding
officials, executive officers, comptometer operators, clerical and office
employees, employees above the rank of job foreman, employees of the
central warehouse, supply depot, repair shop, and laboratory located
in Emeryville, California, and employees who have since quit or been
discharged for cause, to determine whether they desire to be repre-
sented for the purpose of collective bargaining by Utility Workers
Organizing Committee, C. I. 0., by International Brotherhood of
Electrical Workers, affiliated with the American Federation of Labor,
or, by neither.
ORDER
Upon the basis of the above findings of fact and conclusions of law,
the National Labor Relations Board hereby orders that the Second
Direction of Election issued by the National Labor Relations Board on
June 14, 1939, be, and it hereby is, vacated and set aside.
Mr. WrM. M. LEISERSON took no part in the consideration of the above
Supplemental Decision Third Direction of Election and Order.
In the Matter of PACIFIC GAS AND ELECTRIC COMPANY and UTILITY
WORKERS ORGANIZING COMMITTEE C. I. O.
Case No. R-274
AMENDMENT
TO
SUPPLEMENTAL DECISION AND THIRD DIRECTION
OF ELECTION
May 11, 1942
On April 16, 1942, the National Labor Relations Board, herein
called the Board, issued a Supplemental Decision, Third Direction
of Election and Order in the above-entitled proceeding.' The Board
included in the unit therein found to be appropriate for the purposes
of collective bargaining the rank of job foreman, on the basis that
this classification, among others, had been so included by the Board
in prior decisions.2 The Board, upon further consideration, observes
that employees in this category were found by it in Case No. C-1003
to have engaged in activities in connection with an election directed
by the Board, constituting interference with the rights of employees
within the meaning of Section 8 (1) of the National Labor Relations
Act. In view of such activities on their part, and in view of the
fact that the employees in this category unquestionably exercise a
degree of supervisory authority, the Board is of the opinion that
they should be excluded from the unit,' and from participation in
the election to be held.'
140 N L R B 607
2 3 N L R B , 835; 13 N. L. R B 268
313 N L R B 268
S See Matter of Swift & Company and Amalgamated Meat Cutters and Butcher Workmen
of Noith America, Local 172, affiliated with the American Federation of Labor, 30 N L
R B 550 Matter of Consumers Power Company and International Brotherhood of
Electrical Workers, Local 876, 10 N L. R B 780; Matter of Jones Lumber Company,
et al and Lumber and Sawmill Workers Union, Local 2897, chartered -by United Brother-
hood of Carpenters and Joiners of America, affiliated with the American Federation of
Labor, et al, 12 N L R. B 209; Matter of Ford Motor Company and United Automobile
Workers of America, Local No 32.;, 23 N L R B 342.
5In the Matter of Western Union Telegraph Company and American Federation of
Labor, Commercial Telegraphers ' Union, 33 N L R B 183, the Board held : "Emn-
ployees who are ineligible to vote in the election because of their supervisory duties
should not participate in electioneering even though they are eligible to belong to, and do
belong to one or another of the unions on the ballot."
40 N. L. R. B., No. 10Sa. -
607
608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board hereby amends its finding as to the appropriate unit
issued April 16, 1942, to read as follows :
All employees in the outside forces of the Company in its
East Bay Division, including outside field employees , workers
employed in the generating stations , substations , gas plants,
steam plants, and other shops and plants and meter readers,
combination meter readers and collectors , collectors , salesmen,
estimators , mappers, inspectors , watchmen, and building service
employees , but excluding officials, executive officers, comptometer
operators , clerical and office employees, employees of the rank
of job foreman and above the rank of job foreman , and employees
of the central warehouse , supply depot, repair shop , and labo-
ratory located in Emeryville , California , constitute a unit ap-
propriate for purposes of collective bargaining.
The Board hereby amends its Direction of Election issued April
16, 1942, by deleting the expression "up to the rank of foreman"
where it appears therein, and by inserting , in the list of exclusions
from eligibility to vote, after the words "clerical and office employees,"
the words "employees of the rank of job foreman and above the rank
of job foreman."
MR. WM. M . LEISERSON took no part in the consideration of the
above Amendment to Supplemental Decision and Third Direction of
Election.
1