The Cleveland Electric Illuminating Co.

National Labor Relations Board - Board Decisions

Sep 8, 1943

52 N.L.R.B. 518 (N.L.R.B. 1943)

In the Matter of THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
and UTILITY WORBERs ORGANIZING COMMITTEE, LOCAL 270, C. I. O.
In the Matter of THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
and INTERNATIONAL UNION OF OPERATING ENGINEERS (AFL) LOCAL
No. 589
In the Matter of THE CLEVELAND ELECTRIC ILLUMINATING COMPANY
and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS (AFL)
LOCAL UNION B-1336
Cases Nos. R-5358 to R-5367, inclusive, respectively.Decided
September 8, 1943
Mr. John R. Hill, for the Board.
Messrs. Clan Crawford and Ralph M. Besse, of Cleveland, Ohio, for
the Company.
Mr. Lee W. Heilman, of Youngstown, Ohio, and Mr.'Eugene Cotton,
of Washington, D. C., for the CIO.
Messrs William Patrick Clyne and W. B. Petty, of Cleveland, Ohio,
for the IBEW.
Mr. Robert Silagi, of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
Upon petitions duly filed by Utility Workers Organizing Commit-
tee, Local 270, C. 1. 0., herein called the CIO, by International Union of
Operating Engineers (AFL) Local No. 589, herein called the Operat-
ing Engineers , and by the International Brotherhood of Electrical
Workers (AFL) Local Union B-1336, herein called the IBEW, alleg-
ing that questions affecting commerce had arisen concerning the repre-
sentation of employees of The Cleveland Electric Illuminating
Company, Cleveland, Ohio, herein called the Company, the, National
Labor Relations Board consolidated the cases and provided for an
appropriate hearing upon due notice before Frank A. Mouritsen, Trial
52 N. L . R. B., No. 82.
518
THE CLEVELAND ELECTRIC 'ILLUMINATING COMPANY 519
Examiner. Said hearing was held it Cleveland, Ohio, on May 10, 11,
12, and 13,1943. The Company, the CIO, and the IBEW appeared and
participated.' All parties were afforded full opportunity to be heard,
to examine and,cross_examine witnesses, and to introduce evidence
bearing on the issues.
On April 30, 1943, the Board issued its Decision and Order in a case
involving charges of unfair labor practices filed by the IBEW against
the Company.2 The hearing in the instant case commenced on the
10th day after the issuance of said Decision. At the hearing and in its
brief, the IBEW contended that the hearing date was prematurely
set,. in that it did. not allow 10 full days to elapse in which to afford
the Company an opportunity to signify whether it intended to comply
with the Board's order. The record is barren of any fact or circum-
stance which indicates that any party was prejudiced by the setting of
the date of hearing for May 10, 1943.
Both the Company and the IBEW were represented at the hearing
by attorneys. Since the CIO was represented by its field representa-
tive, the Trial Examiner and the Board's attorney rendered to him
some aid in crystallizing the issues which they probably would not have
given a lawyer. On one occasion, during a recess, a discussion was
held among the Trial Examiner, the Board's attorney, and the CIO
representative to arrive at some definition of "working foremen" whom
the CIO seeks to include in the appropriate unit. An examination of
the record reveals that the IBEW's attorney was invited to participate
in this discussion but declined to do so. He was -later challenged to
present any evidence bearing on the alleged misconduct of the Board's
agents but declined to do so, stating that he did not. wish the inference
of improper conduct to be drawn without supporting testimony. The
IBEW alleges that the function of the Board's representatives is
limited to establishing jurisdiction, and that they acted improperly
and showed-bias.byassisting the CIO. The IBEW is clearly mistaken
as to the functions of the Trial Examiner and Board's attorney in
representation cases .$ We find that the conduct of the Trial Examiner
and the Board's attorney was correct and proper and that a fair hearing
was held.
1 The Operating Engineers did not appear and was not represented at the hearing, although
it had been given due notice thereof. Instead it sent a letter to the Board 's Regional
Director asking "to be excused from the hearing now in progress."
2 Case No. C-2543. . See.Matter of.The • Cleveland„Electrio Illuminating Co., 49 N. L. R. B.
300.
' Copies of the Trial Examiners ' Statement in "R" Cases , Board 's Exhibit No. 2, were
served upon all parties. This statement reads in part, "in general , the Trial Examiner will
present evidence bearing upon the question of the Board 's jurisdiction over the parties and
the subject matter of the investigation , while the representatives of the other parties will
be expected ( with the assistance of the Trial Examiner if necessary ) to present evidence
upon the remaining issues " During the hearing the Trial Examiner defined the function
of the Board's attorney as coinciding with that of the Trial Examiner and stated that the
Board's attorney " is merely here to try and assist the parties , and to get the information
in the record. . . .
520 DECISIONS OF NATIONAL LABOR: RELATIONS -BOARD•
At the hearing the IBEW moved to withdraw its petition No.
R-5361 pertaining to the employees of the Stores Department of
the Company. The motion was referred to the Board and is hereby
granted. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were
afforded an opportunity to file briefs with the Board. On July 8,
1943, oral argument was held before the Board in. Washington, D. C:,
at which the Company, the CIO, and the IBEW appeared and
participated.
On August 18, 19, and 20, 1943, pursuant to an order of the Board
reopening the record, a further hearing was held for the purpose
-of determining whether or not an election might appropriately be
directed at this time in view of the proceedings in the United States
Circuit Court of Appeals for the-Sixth Circuit involving the Board's
order issued in the complaint case.4 All parties, including the Oper-
ating Engineers ;6 appeared, participated, and were, afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. The Trial- Examiner's
rulings made at the reopened hearing are free from prejudicial error
and are hereby affirmed.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
.
The Cleveland Electric Illuminating Company, an Ohio corpora,-
tion, is a public utility controlled by The North American Company.
It has one wholly owned subsidiary, The Ceico Company, which owns,
sells, and services electric meters and'acquires title to real estate for
use in the" Company's business. The Company is engaged princi-
pally in the `generation and distribution of electric energy and steam
in Cuyahoga, Geauga, Lake,'and Ashtabula! counties,. and in; a small
portion of Lorain county in the State of Ohio. Such territory in
-which the'Company operates, extends along the shore of Lake Erie
approximately 100 miles and inland to an average depth of about 1.7
miles. The total area in which the Company produces and distrib-
utes electric energy is approximately 1,700 square miles or about 4
percent of the total area of the State of Ohio. The Company serves
approximately 132 communities, which contain an approximate popu-
lation of 1,340,000. Twenty ,percent of the, people of the State live
'within this area and 24 percent of the electric energy sold to consumers
within the State is sold in this area.
.4 See footnote 2, supra.
S The participation of the Operating Engineers was limited to an affirmation of the post-
tion adopted by the IBEW which will be considered in Section V. infra.
THE CLEVELAND ELECTRIC, ILLU'MINAT'ING COMPANY 521
The area served by the Company is highly industrialized, contain-
ing steel mills, machine shops, plants for the production of automo-
bile parts and bodies, and other heavy industry and numerous utilities
and other instrumentalities of interstate commerce. Many of said
industries and instrumentalities for interstate commerce purchase
and consume electric energy produced and distributed by the Com-
,pany. The Company owns several steam-electric generating plants
of 640,000 kilowatt capacity, name-plate rating, and an intercommuni-
cating transmission and distribution system. At the end of 1942 the
Company had nearly 350,000 customers, including 951 industrial and
commercial customers with a demand of 50 kilowatts or more, and
38,223 such customers with a demand of less than 50 kilowatts. Dur-
ing the year 1942 the Company's revenue from the sale of electric
energy amounted to approximately $35,750,000, and its total oper-
ating revenue amounted to approximately $37,300,000. During the
same period the Company used coal for the production of electric
energy costing approximately $6,000,000, of which approximately 40
percent was shipped to the Company from points outside the State
of Ohio. During that same period of time the Company purchased
for use in its operations, equipment and supplies produced outside
the States of Ohio of a value in excess of $1,000,000.
The Company has numerous contracts to supply steam and elec-
tric energy to plants engaged in the production of war materials. In
addition, the Company has such contracts directly with agencies of
the United States Government.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.e
II. THE ORGANIZATIONS INVOLVED
Utility Workers Organizing Committee , Local 270, is a labor or-
•ganization affiliated with the Congress of Industrial Organizations,
admitting to membership employees of the Company.
International Union of Operating Engineers, Local No. 589, and
International Brotherhood of Electrical Workers, Local Union
B-1336, are labor organizations affiliated with the American Federa-
tion of Labor, admitting to membership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
On September 9, 1942, the Operating Engineers requested the Com-
pany to bargain with it on behalf of all employees in the Company's
-Canal Road, and East 20th Street and Lakeside Avenue plants. On
September 15 the Company informed the Operating Engineers that
e See Matter of Con8olidated Edison Company of New York, Ino., et al., V. N. L. R. B., et ti.,
805 U. S. 197.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the proper bargaining unit, or units, should be determined by the
Board because the Company had received conflicting claims from
several labor organizations.
The IBEW requested. the Company, on or about November. 25,,1942,
to grant said union a collective bargaining contract, and on that same
date the Company advised the union that the matter would have to be
determined by the Board because of the conflicting claims made by the
several labor organizations.
By letter dated March 27, 1943, the CIO requested the Company to
meet with said union in order to negotiate a union agreement. On
April 1 the Company refused the request for the same reason it gave
to the other unions.
A statement by a Board agent, introduced in evidence at the hearing,
indicates that the CIO and IBEW each represents a substantial number
of employees in the unit hereinafter found appropriate.? Inasmuch
as the Operating Engineers did riot appear at the original hearing, nor
make its desires with respect to unit known, no consideration will be
given its claims, and for the reasons set forth in Section IV, infra,
its petitions will be dismissed.
We find that questions affecting commerce have arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
Iv. THE APPROPRIATE UNIT
Electric power furnished to the Company's customers is distributed
from four steam electric generating plants which are closely inter-
4 The Field Examiner reported that the CIO submitted 1,049 application -for-membership
cards, 1,047 of which bore apparently genuine original signatures ; that the names of 990
persons appearing on the cards were listed on the Company 's pay roll of April 18, 1943, which
contained the names of 2,200 employees in the appropriate unit ; and that all the cards were
dated-between February and May 1, 1943.
The Field Examiner 's report with respect to the authorization cards submitted by the
IBEW , and a comparison with the CIO's representation in the units alleged by the IBEW
to be appropriate , may be summarized as follows :
Case No.
No. em-
ployees
in unit
No. names on cards
appearing on pay
roll of May 10, 1943
IBEW CIO
R-5361-------------------------------------------------------------- 106 2 53
5362-------------------------------------------------------------- 689
121 431
5363------------------------------------------------------------- 135 20 53
5364------------------------------------------------------------- 131 76 27
5365-------------------------------------------------------------- 477 183
176
5366-------------------------------------------------------------- 184 46 100
5367-------------------------------------------------------------- 417 59
125
2,139 507 965
The authorization cards submitted by the IBEW were dated within 'a 7-month period preceding
the date of the hearing.
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY 523
connected by a transmission system. Two generating plants. are lo-
cated in the city of Cleveland; one is near the eastern end of the sys-
tem in Ashtabula, some 50 miles from Cleveland; and one is near the
western end at Avon, about 20 miles from Cleveland. In addition to
electricity, the two Cleveland plants, and a third Cleveland plant de-
voted exclusively to the production of steam for industrial purposes,
also sell steam for heating and industrial purposes. The Company
distributes its power through a pool system whereby power from any
plant may be sent to any part of the system where it may be needed.
At all times the Company maintains sufficient extra capacity to com-
pensate for the break-down of the single largest turbine generator any-
where in the system. The'Company also has physical connections with
other utility companies serving the State of Ohio, so that power may
be secured in cases of emergency. The uncontradicted testimony of
the Company's vice president shows that all generating plants operate
as a single integrated unit no part of which is operated independently
or is capable of substituting for another.
For operating purposes, the Company divides its functions into
seven departments, namely : Steam ; Electrical ; Lines; Stores ; Serv-
ice; Building Construction and Maintenance, Transportation and
Shops; and Property Protection. In order to facilitate the perform-
ance of certain limited local functions for the convenience of cus-
tomers and for efficiency in handling local contracts, construction, etc.,
the Company has set up an Eastern District, which correlates the func-
tions of four of the above-mentioned departments in and about the
territory surrounding Ashtabula. None of the operational depart-
ments in the Eastern District performs a complete function in every
instance. The Superintendent of this district, who is also an assist-
ant general manager of the Company, maintains his headquarters in
Cleveland along with the offices of all other operating and non-operat-
ing heads of departments. All high-line transmission, transmission
substations and transmission switching of 33 K. V. and greater, in the
Eastern District are controlled in Cleveland and are not within the
jurisdiction of the Eastern District.
The Company and the CIO are in substantial agreement that the
appropriate unit should be system-wide for all operating, maintenance,
and construction employees but excluding office, clerical, sales, and
technical employees. The IBEW seeks to divide the Company's em-
ployees into seven operating units,8 following what it alleges to be the
Company's departmental set-up. The Operating Engineers would
establish separate units at two of the Cleveland,generating plants. Al-
though the petitions of the IBEW purport to duplicate the Com-
pany's operational organization, they do not follow the set-up closely,
"The withdrawal of the petition for the employees in the Stores Department leaves six
units sought to be established by the IBEW.
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
making omissions from each department. The IBEW argues that
this is done to preserve the identity of craft lines ; but when it attempts
to explain its petition for the employees in the Eastern District, which
is not a company department, and from which the IBEW again seeks
certain exclusions, it does so on the basis of the completeness of the
services rendered there. As the CIO contends, were the division to
be made along true craft lines it would mean the establishment of
over 30 units and not merely 7.
The evidence in the record shows that there is free and frequent
interchange of employees between all departments. Over a period of 3
years prior to May 1943, there were 347 interdepartmental transfers,
averaging almost 10 a month. These were in addition to the tempo-
rary transfers or loans of employees from one department to an-
other. Both the CIO and IBEW have jurisdiction coextensive with
the Company's entire operations. Up to 10 days prior to the date of
hearing, the IBEW conducted its organizational campaign on a sys-
tem-wide basis. Although the international representative of the
IBEW testified that his union generally organizes the utility industry
along departmental lines, he admitted that all departmental contracts
with the Company, should they come into existence , would ultimately
be merged into a single contract covering the entire system. The rec-
ord further reveals that the control of the Company's entire system is
centralized in one general office in Cleveland ; that all departments are
interdependent and comprise a single integrated system; and that all
employees are subject to the same company rules and regulations and
receive the same benefits. In view of all the facts and the integration
and functional coherence of operations throughout the system, we
perceive no reason for establishing units of arbitrary groupings. We
shall adhere to our normal practice of-establishing an industrial unit
where the labor organizations have organized along system-wide lines,'
and we shall dismiss the petitions of the IBEW.
We come now to the disposition of issues concerning certain cate-
gories of employees within the broad suit.
The parties agree and we find that operating employees include
watchmen and janitors at operating locations, surveyors, meter read-
ers, and blockmen. During the hearing, surveyors were defined to
mean only those in the Lines, Department and not those in the Wire
Relations , Electrical Engineering, and Survey Sections.
1. -Clerical employees at operating locations. The Company seeks
to exclude all clerical employees, whereas the IBEW would include
them. The CIO does not adopt a consistent position but seeks the
See Matter of Buffalo Niagara Electric Corporation, et al ., 46 N. L. R. B. 668; Matter
of Consumers Power Co., 44 N L. R. B . 626; Matter of Florida Power & Light Company,
42 N. L. R. B 742; Matter of Antioch Power Company, 40 N. L. R. B. 773; Matter o t
Northern States Power Company of Wisconsin , 37 N. L. R. B. 991 ; and Matter of Pennsyl-
vania Edison Company, 36 N. L. R. B. 432.
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY - 525
inclusion of some who do manual labor and whose clerical work is not
of a confidential nature, such as those who work in the Stores Depart-
ment and in the garages of the Transportation Department. The CIO
would also include timekeepers "where they come in close contact with
the men," but it would exclude clerks in the power plants and in the
Service Department.
. The record shows that there are about 40 clerical employees in oper-
ating locations of whom the CIO seeks about half. In general, their
wages, duties, and relations to management are similar to those of the
general office clerical employees who are excluded from the unit, by
agreement. Under these circumstances we shall exclude the clerical
employees 10
2. Employees in the Civil Engineering, Electrical Engineering,
Wire Relations, Survey and Record Sections. Although most of these
employees are excluded as general office employees, the Company spe-
cifically desires their exclusion so as to avoid any later misunderstand-
ings. The Company's position with respect to them is uncontested
and, accordingly, these employees shall be excluded.
3. Property Protection Department. Neither the CIO nor the
IBEW desires the inclusion of the watchmen, or guards, of the Prop-
erty Protection Department. The Company agrees to their exclusion
during the present war period while they are sworn in as Auxiliary
Military Police, but wishes to preserve all rights to contend for their
inclusion in an industrial unit after the war. With regard to this,
the Company points out that the guards perform no confidential duties
for management, nor do they police employees as such, and therefore
believes that under normal conditions the guards belong in the same
unit with operating employees. In accordance with the wishes of the
parties, we shall exclude the guards without prejudice to the Com-
pany's contending at a later time that they should be included in the
unit of operating,employees.n
4. Production and Test Engineers. These are technically trained
employees, many of whom are graduate and registered engineers, lo-
cated at the power plants, and who deal with problems of operation
involving the preparation of reports on operating efficiency as distin-
guished from routine operating functions. They work in the same
building as the operating employees but have no supervisory authority
over them. The CIO seeks to include them while the Company argues
for their exclusion as professional or semiprofessional employees and
the IBEW expresses no preference. Under comparable circumstances
we have excluded such engineers and we shall exclude them here I2
10 See Matter of Boston Edison Company , 51 N. L. R. B. 118; also Matter of Indxanapoli8
Power & Light Company, 51 N. L. R B. 670.
11 See Matter of Dravo Corporation, 52 N. L . R. B. 322.
'z See Matter of Twin State Cab & Electric Company, 38 N. L. R. B. 760; Matter of Boston
Edison Company, 51 N. L. R. B. 118; also Matter of Savannah Electric & Power Co.,
38 N. L . R. B. 47.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
5. Load and Trouble Dispatchers. , Twelve load dispatchers direct
the operations of the electrical system by telephone in the general office
of the Company. With the aid of diagrammatic maps they know at
all times the status of every switch and piece of rotating electrical
equipment on the system. They are highly trained, having come up
through the ranks of the Electrical Department, and are thoroughly
familiar with the electrical system, its equipment,. and personnel. No
switch in any substation or power plant is opened or closed without
orders from the.load dispatchers. Seven trouble dispatchers perform
a similar function in directing the operations of the trouble crews by
telephone from the general office of the Company. They are generally
former line crew foremen who have come up through ,the ranks and
have an intimate knowledge of the Company's lines. The Company
and the CIO would exclude both types of dispatchers as general office
and technical employees. The IBEW seeks to include them. We
agree with the contentions of the Company and the CIO and shall
exclude the dispatchers.
6. Chemists and Laboratory Assistants. These, employees, analyze
samples of material and equipment purchased by the.Company. They
also analyze cases of equipment failure, do original research and ex-
perimental and test work in connection with new processes. They
have little contact with the operating employees, dealing chiefly with
the Purchasing Section, the various engineering sections and the
head of the Steam Department. The Company seeks their exclusion
on the same ground as it seeks the exclusion of the production and
test engineers. Neither the CIO nor the IBEW apparently desire
their inclusion ; accordingly, we shall exclude them from the appro-
priate unit.
7. Supervisory Employees. The IBEW contends that all super-
visory employees up to but not including general foremen should be
included in the appropriate unit, whereas the CIO would exclude all
but working foremen. The Company adopts no position on this issue.
In view of our recent decision in The Maryland Drydock Company
case, is a discussion of supervisory employees above the rank of so-
called working foremen is unnecessary. The Company has no dis-
tinct job classification known as working foremen but it appears that
there may be some foremen, totaling about 25 in number, who fit
into a definition of working foremen advanced by the CIO. Inas-
much as the test proposed by the CIO does not coincide with our
standard description of supervisory employees, and since the record
does not clearly define the extent of their authority to discipline, we
shall exclude or include these employees depending- upon -whether
they fit the definition of supervisory employees hereinafter set forth.14
33 49, N. L. R. B. 733.
14 See Matter or Hekman Furniture Company, 50 N. L. R. B. 834.
THE CLEVELAND ELECTRIC ILLUMINATING COMPANY 527
8. -Temporary employees:
(a) Laborers. The Company maintains a permanent, crew of about
90 laborers in the Underground Lines Department. In addition, it
now employs 32 temporary laborers who work on special jobs from
time to time. Although the Company does not solicit them, whenever
it has need for temporary laborers, those employees who have previ-
ously worked for the Company are given preference in reemployment.
Seven of the 32 temporary laborers have been continuously employed
for less than 6 months; the remainder have been continuously employed
for various periods ranging between 6 months and 2 years. The pres-
ent job the' men are working on was expected to be completed in July
1943 at which time the Company contemplated discharging them since
it is unlikely that there will be any additional large jobs in the imme-
diate future. The Company seeks to exclude the temporary laborers.
The IBEW would also exclude them because it claims that it did not
attempt to organize them since they are temporary employees, while
the CIO would include those employees who have been continuously
employed for 3 months or longer.
(b) lVatchmzen. These watchmen should be differentiated from the
watchmen or guards in the Property Protection Department. The
temporary watchmen herein referred to work in the Underground
Lines Department. They set out lanterns and red flags about excava-
tions, direct street traffic, and safeguard pedestrians against falling
into the openings. When work is not going on they protect the Com-
pany's equipment and tools from damage or theft. They are hired on
a temporary basis after having signed applications for temporary
employment, and are employed intermittently. They are not entitled
to the benefits which the Company bestows upon its regular employees.
At present there are 13 such employees whose "temporary" service
ranges from a few months to 17 years. The Company claims that
they are usually elderly men, sometimes partially disabled, who have
expressed 'a preference for intermittent employment; it therefore
seeks their exclusion. The IBEW would also exclude them, but the
CIO wants them included in the appropriate unit.
From all the facts it is manifest that the Company maintains what
is tantamount to a manpower pool from which is supplied its tem-
porary laborer needs. Even though the Company does not keep a
list of available laborers to whom it sends notices to report for work,
nevertheless, it intends to and does rehire its old employees. Under
such circumstances we are of the opinion that they have a substantial
interest in the determination of a bargaining representative. The
case for, the inclusion of the temporary watchmen is all the stronger
in the light of the, longer period of service they have rendered to the
528 DECISIONS OF 'NATION'AL LABOR RELATIONS BOARD -
Company. Accordingly, we shall include temporary laborers and
watchmen in the appropriate unit.16
We find that all operating, maintenance, and construction employees
of the Company, including temporary laborers and watchmen, but
excluding office, clerical, sales, technical employees, employees, in the
Civil Engineering, Electrical Engineering, Wire Relations, Survey
and Record Sections, Property Protection employees, production and
test engineer, load and trouble dispatchers, chemists and laboratory
assistants, and all supervisory employees with- authority to hire,
promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, constitute
a unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
As indicated above in view of the fact that the Company's petitioli
in the Circuit Court of Appeals for the Sixth Circuit for review of
the Board's Order in the complaint case was granted, the Board or-
dered a further hearing to determine whether or not an election at
this time may appropriately be directed. The IBEW contends that
no election should be directed until the Board's Order in the com-
plaint case has been fully compiled with. The CIO urges an imme-
diate election, and the Company adopts no position on this matter.
The IBEW claims that the CIO has benefited by the non-compliance
of the Company in the complaint case and that the effects of the
Company's unfair labor practices have not been dissipated. In the
complaint case the Board ordered the disestablishment of Electric
Illuminating Workers Union, herein called the Independent, a labor
organization found by the Board to be company-dominated.
The record establishes that on February 5, 1943, more than 2 months
before the issuance of the Board's disestablishment order,.at a mem-
bership meeting attended by approximately 400 persons, the members
of the Independent were addressed by the attorney who had acted as
counsel to that organization. He stated that in his opinion the In-
dependent would be obliged to disband as the result of the IBEW's
charge, and recommended the formation of a new unaffiliated organ-
ization to take its place. By unanimous vote the members of the In-
dependent voted its own immediate dissolution, but took no action
on the creation of a new union. Shortly thereafter, the funds of the
Independent were distributed to charities and the organization ceased
to function. It appears, moreover, that at a later date an attempt to
form a new union was made, which, however, proved abortive.
15 See Matter of California Cotton Oil Corp ., 26 N. L. R. B. 715; Matter of Houston Pipe
Line Co., 28 N. L. R. B. 301; Matter of Medford Corp., 30 N. L. R. B. 256; and Matter of
Imperial Ice Division of California Electrio Power Company , 50 N. L. R. B. 106.
TIDE CLEiVELAND ELECTRIC ILLUMINATING COMPANY 5529
Thus, it is clear that the Independent's members, allegedly consti-
tuting a substantial majority of the Company's employees throughout'
the system, took all steps within their power to abolish and liquidate
their dominated organization. They definitely rejected the proposal
that they should form a new unaffiliated union to succeed the Inde-
pendent. The CIO, which then appeared upon the scene, capitalized
upon the Independent's dissolution in its organizing appeal to the
employees to turn to a nationally affiliated organization. Several
former trustees and officers of the Independent actively assisted in the
CIO's organizing drive. However, there is no evidence that the or-
ganizational structure of the Independent was transferred to the CIO,
nor does the record show any acts of assistance to the CIO by the
Company."
While we in no way condone the Company's failure to post notices
disestablishing the Independent, as directed in our Order in the com-
plaint case, we note that its refusal to do so has been primarily due to:
the actions of the IBEW itself. Thus, the Company, on July 26,
offered to withdraw its petition for review in the Circuit Court and
to comply fully with the Board's Order in the complaint case, pro-
vided, however, it received the assurances of all other parties that
they would not litigate the matter. This the IBEW refused to do.
On August 19, the IBEW procured an order from the Circuit Court
of Appeals for the Sixth Circuit restraining the Company from carry-
ing out any part of the Board's Order during the pendency of the
action to review the Board's Order.
It has been a long-standing rule of this Board not to entertain
petitions for an election filed by one union where a complaint has
been issued on the charge of another union of the existence of unfair
labor practices. The same rule has prevailed where a Board Order
is outstanding which has not been complied with. The reason for
the rule is that until the unfair labor practices, with respect to which
the charging union has been aggrieved, have been dissipated, it has
been felt that such a union would be placed under a great handicap
by an immediate Direction of Election. In the instant case, however,
it is apparent that non-compliance with the order has been due to the
charging union. The result is that the 1,500 employees who ' have
manifested their desire to bargain collectively either through the
CIO or the IBEW are presently without an established collective
bargaining representative. Cessante ratione; cessat lex. Accordingly,,
we find nothing in the record before us to warrant us in holding that
this anomalous situation must continue,-and the Company's employees,
be denied the right to select a bargaining representative until the in-
10 There is no evidence that the Company 's supervisory employees countenanced or solicited'
membership in the CIO , although the Board in its complaint case found that the Company,'
through its supervisory employees , had assisted the IBEW.
530 DECLSJONS OF NATIONAL LABOR RELATIONS BOARD
definite future date when all the legal issues in the complaint case
are resolved.
We shall direct that the question concerning representation 'which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
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 Re-
lations Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 2, as amended, it is
hereby
DIRECrFD that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining with The Cleveland
Electric Illuminating Company, Cleveland, Ohio, an election by secret
ballot shall be conducted as early as possible, but not later than thirty
(30) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Eighth Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, among the employees in the unit found appropriate in Section
IV, above, who were employed during the pay-roll period immediately
preceding the date of this Direction, including employees who did
not work during said pay-roll period because they were ill or on vaca-
tion or temporarily laid off, and including employees in the armed
forces of the United States who present themselves in person at the
polls, but excluding those employees who have since quit or been dis-
charged for cause, to determine whether they desire to be represented
by Utility Workers Organizing Committee, Local 270, affiliated with
the Congress of Industrial Organizations, or by International Brother-
hood of Electrical Workers, Local Union B-1336, affiliated with the
American Federation of Labor, for the purposes of collective bar-'
gaining, or by neither.
ORDER
Upon the basis of the foregoing findings of fact, and upon the
entire record in the case, the National Labor Relations Board hereby
orders that the petitions for investigation and certification of repre-
sentatives of employees of The Cleveland Electric Illuminating Com-
pany, Cleveland, Ohio, filed by International Union of Operating-
Engineers (AFL) Local No. 589, and by International-Brotherhood
of Electrical Workers' (AFL) Local Union B-1336, be, and they
hereby are, dismissed.