Pueblo Gas & Fuel Co.

National Labor Relations Board - Board Decisions

May 20, 1940

23 N.L.R.B. 1028 (N.L.R.B. 1940)

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 1 035
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 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.