Dayton Power & Light Co.

National Labor Relations Board - Board Decisions

Aug 28, 1942

43 N.L.R.B. 775 (N.L.R.B. 1942)

In the Matter of DAYTON POWER & LIGHT COMPANY , WASHINGTON
COURT , HOUSE BRANCH and INTERNATIONAL UNION OF OPERATING
ENGINEERS , LOCAL 89, AND INTERNATIONAL BROTHERHOOD OF FIREMEN
AND OILERS ,, LOCAL 935, A. F. or L.
Case No. R-J5064.-Decided August 28, 194.2
Jurisdiction : electric, heat, and power utility industry.
Investigation and Certification of Representatives : existence of question:
refusal to accord petitioner recognition ; contract executed subsequent to
claim of majority representation held no bar; election necessaiy.
Unit Appropriate for Collective Bargaining : all operating engineers and
firemen employed at the Washington Court House Branch of the Company,
excluding foremen and all others having the right to hire and discharge, held
to constitute an appropriate unit, despite request of Company and- rival
organization for a system-wide unit. -
Mr. Charles P. Pharrer, of Dayton, Ohio, for the Company.
Mr. Henry Wilhelm, of Columbus, Ohio, for the A. F. of L.
Mr. Robert C. Knee, of Dayton, Ohio, for the Independent.
Mr. A. Sumner Lawrence, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by International Union of Operating Engi-
neers, Local 89, and International Brotherhood of Firemen and Oilers,
Local 935, A. F. of L., herein collectively called the A. F. of L., alleging
that a question affecting commerce had arisen concerning the represen-
tation of employees of Dayton Power & Light Company, Washington
Court House Branch, Washington Court House, Ohio, herein
-called .the Company,-,the 'rational Labor Relations Board provided
for an appropriate hearing upon due notice before James A. Shaw,
Trial Examiner. Said hearing was held at Washington Court House,
Ohio, on July 22, 1942. The Company, the A. F. of L., and Dapolico
Workers, Inc., herein called the Independent, appeared, participated,
and were afforded full opportunity 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 hearing are free from
prejudicial error and are hereby affirmed.
43 N L. R. B., No. 124.
775
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the,entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Dayton Power & Light Company is an Ohio corporation doing busi-
ness in excess of $1,000,000 a year and engaged as a public utility in
the generation, transmission, and sale of electric energy and the sale
of natural gas for light, heat, and power purposes, the sale of steam
and hot water for central station heating purposes, and the pro(juction,
purification, transmission, and distribution of water. Besides its prin-
cipal plant' which is located at Dayton, Ohio, the Company has three
subsidiary plants, located in different sections of Ohio. Of these, the
only plant involved in this proceeding is the Washington Court House
Branch, located at Washington Court House, Ohio, Where the Com-
pany is engaged in heating operations with electricity as a byproduct.
Of the energy generated by the Company, not less than 25 percent is
distributed to industrial customers engaged in interstate commerce.
The Company purchases annually for steam and electric operations
at its Dayton plant more than 300,000 tons of coal, all of which is
obtained from sources outside the State of Ohio. It does not appear
what quantity of coal is allocated to the operations of the Company's
Washington Court House Branch.
IT. THE ORGANIZATIONS INVOLVED
International Union of Operating Engineers, Local 89,.and Inter-
national Brotherhood of Firemen and Oilers, Local 935, A. F. of L.,
are labor organizations affiliated with 'the) American Federation of
Labor, admitting to membership employees of the Company.
Dapolico Workers, Inc., is an unaffiliated labor, organization, ad-
mitting to membership employees of the Company.,
' The A•, F. of L: claimed that the Independent was not a labor organization The rec-
ord shows , however, that the Independent was organized under a charter from the State
of Ohio on or about August 18, 1941 ; that subsequent to that a meeting for organizational
purposes was held in Washington Court House and attended by approximately 30-35
employees from the Washington Court House Branch ; that at this meeting a tentative
constitution was presented with a discussion regarding the completion of a l ,bor organi-
zation for the benefit of the Company's employees,;, that thereafter following further'
organizational activity, the Independent entered into negotiations with the Company in
February of 1942 ; that after a few weeks ' negotiations , the, Company and the Independent
reached an agreement for a blanket wage increase for all employees including those in
the Washington Court House Branch, which agreement was incorporated into the formal
contract executed by the Company land the Independent ' on June 22 , 1942 ; that the
internal, organization of the Independent provides for dues and initiation fees and that
a constitution adopted by the Independent on January 27, 1942 , provides as one of-its
purposes "to assure to the employees all the benefits of collective bargaining as guaran-
teed by the provisions of the National Labor Relations Act as it now is or may be
amended " I
DAYTON POWER & LIGHT COMPANY 777
III. THE QUESTION CONCERNING REPRESENTATION
On or about March 5, 1942, and on several occasions thereafter, a
representative of the A. F. of L., claiming to represent the Company's
employees in the power plant at Washington Court House, Ohio,
requested that the Company bargain collectively. The Company re-
fused upon' the ground that it had an exclusive bargaining,agreemeht
with the Independent and also upon the ground that the bargaining
unit proposed by the A. F. of L. was inappropriate for purposes of
'collective bargaining.
On March 30, 1942, the Company and the Independent had substan-
tially agreed upon a contract, which was formally executed on June 22,
1942. At the hearing they claimed, in substance, that the contract was
a bar to the present proceeding. Inasmuch, however, as the contract
was agreed upon and executed subsequent to the claim of majority
representation on the part of the A. F. of L., it is not a bar to the
present proceeding.
A statement of a Field Examiner ,2 introduced in evidence at the
hearing, shows that the A. F. of L. represents a substantial number
of employees in the unit hereinafter found appropriate.
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the National Labor
Relations Act.
IV. THE APPROPRIATE UNIT
The A. F. of L. contends that the appropriate unit should consist
of all operating engineers and firemen, excepting foremen and all
others having the right to hire and discharge in the Washington Court
House Branch of the Company. The Company and the Independent
contend that the, appropriate unit should be system-wide and should
include all non-supervisory employees of the Company in accordance
z The Field Examiner reported that the A. F. of L. had submitted 8 application-for-
membership cards, 7 of which were in the International Brotherhood of Firemen and
Oilers, and 1 in the International Union of Operating Engineers ; that of the 7 cards, all
of which appeared to bear genuine original signatures, 4 were dated in March 1942 and 3
were undated ; that with regard to the 1 card, it appears to bear a genuine original
signature and was undated. The Field Examiner further reported that the Independent
had submitted 43 application-for-membership cards ; that of these 43 cards, all of which
appeared to bear genuine priginal signatures, 38 were dated in October 1941, 1 in March
1942, 3 in April 1942, and 1 undated In addition, the Field Examiner reported that
the pay-roll records of the Company for the Washington Court House Branch showed 45
names of employees in non-managerial- and -non-supervisory classifications, including 8
names classified as engineers and firemen ; that of the group of 7 cards submitted by the
petitioner, 6 names appeared on the current pay roll in the alleged appropriate unit;
that of the 43 cards submitted by the Independent, 33 bore name's appearing on the pay
roll of July 2, 1942, but of these only 1' was within the alleged appropuate unit.
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the contract now existing between the Company and the
Independent. -
It appears that the jurisdiction of the A. F. of L. unions is limited
to the group of employees claimed as the appropriate unit. Moreover,
it appears that the employees in this group are confined in their.
activities to the power house in Washington Court House, and that
transfers to other groups do not occur as a general rule. There is
likewise no history of collective bargaining on a system -wide basis
prior to the negotiation of the present contract between the Company
and the Independent. Under the circumstances, we find that all oper=
ating engineers and firemen employed at the Washington CourtHotzse
Branch of the Company , excluding foremen and all others having the
right to hire and discharge , constitute a unit appropriate for the pur-
poses of collective bargaining , within the meaning of Section, 9 (b)
of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by an election by secret ballot. At the
hearing, the A. F. of L. requested that eligibility to vote be determined
as of August 1, 1942, in order to insure a fair election. Since there
is'no opposition and no countersuggestion from either the Company
or the Independent, we shall grant the request and direct that those
eligible to vote shall be the employees in the appropriate unit who were
employed during the pay-roll period immediately preceding August 1,
1942, 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 Relations
Act, and pursuant to Article III, Section 8, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation ordered by the Board
to ascertain representatives for the purposes of collective bargaining
with Dayton Power & Light Company, Washington Court House,
Ohio , an election by secret ballot shall be conducted as early-as possi-
ble but not later than thirty ( 30) days from the date of this Direction,
under the direction and supervision of the Regional Director for the
Ninth Region, acting in this matter as agent for the National Labor
Relations Board, and subject to Article III, Section 9, of said-Rules
and Regulations , among the employees in the unit found appropriate
in Section IV above, who were employed during the p'ay-roll period
immediately preceding August 1, 1942, including any such employees
who did not work during said , pay-roll period because they were ill or
on, vacation " or in the active military service or training of the United
DAYTON POWER & ' LIGHT COMPANY 779
States, or temporarily laid off, but excluding any who have since quit
or been discharged for cause , to determine whether they desire to be
represented by International Union of Operating Engineers , Local 89,
and International Brotherhood of Firemen and Oilers , Local 935,
A: F. of L., or by Dapolico Workers, Inc., for the purposes of collec-
tive bargaining , or by neither.
CHAIRMAN Milais took,no part in the consideration of the above
Decision and Direction of Election.