Duquesne Light Co.

National Labor Relations Board - Board Decisions

Jul 29, 1944

57 N.L.R.B. 770 (N.L.R.B. 1944)

In the Matter of DUQUESNE LIGHT COMPANY and UTILITY WORKERS
ORGANIZING COMMITTEE AFFILIATED WITH THE C. I. 0.
Cases Nos. 6-R-911 and 6-R-912.Decided July 09, 194..E
Messrs. Allen Sinsheimer , Jr., and Paul F . Shupp, for the Board.
Mr. V. W . Thomas . of Pittsburgh , Pa.; for ,the Company.
Mr. Oliver J. Harper , of New York City , and Mr. Reginald Brown,
of Pittsburgh , Pa., for the UWOC.
Mr. Herman Lipsitz, of Pittsburgh , Pa., for the Independent.
Miss Frances Lopinsky , of counsel to the Board:
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon two petitions duly filed by Utility Workers Organizing, Corn-
; mittee, affiliated with the C. I. 0., herein,called the UWOC, alleging
that questions affecting commerce had arisen concerning the represen-
tation of employees of Duquesne Light Company, Pittsburgh, Penn-
sylvania, herein called the Compaiiy, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Peter F. Ward; Trial Examiner. Said hearing was held at Pittsburgh,
Pennsylvania, on May 26, 27, 29, 30, and 31, 1944. The Company, the
UWOC, and Independent Association of Employees of Duquesne
Light Company and Associated Companies, herein called the Inde-
pendent, 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.' The Company moved
that the petitions be dismissed on the ground that the units requested
therein are inappropriate. For reasons hereinafter set forth, the
motion is hereby, denied. The Trial Examiner's ruliligs 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.
The Company has requested oral argument before the Board. Inas-
much as the issues herein are fully covered in the briefs filed by the
parties, the request is denied.
Upon the entire record in the.case , the Board makes the following:
57 N. L. R. B., No. 129.
770
DUQUESNE LIGHT COMPANY
FINDINGS OF FACT
771
1. THE BUSINESS OF THE COMPANY
Duquesne Light Company is a Pennsylvania corporation with its
principal offices located in the city of Pittsburgh, Pennsylvania. Tile
corporation is a subsidiary of the Philadelphia,Company,-a holding
company, which is in turn a subsidiary of the Standard Gas and Elec-
tric Company. The Company is engaged in the business of generating
and distributing electrical power to consumers situated in Allegheny
and Beaver Counties, Pennsylvania, and through its connections with
transmission lines of other companies,'it occasionally distributes to,
and receives power from, points in Ohio and West Virginia. During
the period from, January 1, 1943, to September 30, 1943, the Company
purchased material, supplies, and equipment, including coal, which
amounted to $1,577,702, in value, of which $279,380 represented the
'cost of coal purchased. The coal, was all mined and purchased within .
the Commonwealth of Pennsylvania. Twenty-four percent of • the
purchases, including coal, was made at points outside the Common-
wealth of Pennsylvania. The Company generated and purchased
during 1943 a total of approximately 350,000,000,000 k. w. h.- of elec-_
tricity of which approximately all was sold within the Commonwealth
of Pennsylvania. The Company, from September 1943 to date, has
continued to purchase materials and supplies and to generate and dis-
tribute electricity in approximately the same amounts as during the
period described.
During the 12 months ending October 31, 1943, the Company re-
ceived 232,860 k. w. h.-of electricity generated in States other than
Pennsylvania. The Company supplies electricity to interstate rail-
roads, United States Post Offices, telegraph companies, telephone com-
panies, an airport, and to many large industries which are engaged
in the manufacture of goods which flow in interstate commerce.
The Company admits, and we find,' that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
Utility Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, is a labor organization admitting to mem-
bership employees of the Company.
Independent Association of Employees of Duquesne Light Com-
pany and Associated Companies is a labor organization admitting to
membership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
For the ,purposes 'of collective bargaining the Company's employees
'are presently represented in four separate units. designated herein as
772 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Unit #1, Unit #2, Colfax; and Mines. -The UWOC, in its, petition
in Case No. 6-R-911, requests an,election in Unit #1, and in its peti-
tion in Case No. 6-R-912, requests an election among the militarized
plant-protection employees presently included in Unit #2. " The
Independent, in its petition to' intervene, avers- that the appropriate
unit for the representation of the employees of the Company is a com-
bination of Unit #1, Unit #2, and Colfax. .
The Independent's latest contract covering Unit #1, was executed
March 26, 1943, and contained a 60-day automatic renewal clause
operative annually. Since the UWOC's request for recognition was
made on January 17, 1944, prior -to the automatic renewal date of
the contract, the contract is no'bar to a present determination of rep
resentatives for the employees in Unit #1.
The Independent's latest contract covering Unit #2 was executed
November 10, 1943, fora term of 1 year, renewable annually, by failure
of "either party to act 60 days prior to the anniversary date. The-
Company and the Independent assert that this contract is a bar to a
present determination of representatives pursuant to the petition filed
herein in Case No. 6-R-912. Since we hereinafter find that the milita-.
rized plant-protection employees, whom the petitioner in that case.
seeks' to represent, are inappropriately included in Unit #2, we'fihd
that the contract dated November 10, 1943, is no bar to a present
determination of representatives among the militarized plant-protec-
tion employees of the Company.'
The UWOC's contract covering Colfax was executed February 13,,
1943. '1t contained the following Articles:.
This Agreement shall remain in effect for one year from the'date
hereof and thereafter from year to year until canceled or otherwise
terminated, as,herein provided.2 Either party may cancel the
Agreement at the expiration of one year from the date hereof, or
at the end'of any subsequent yearly period, by giving to the,other
`written notice thereof at least 30 days in advance of such anni-
versary date. Without canceling the Agreement, either may, 30'
days, prior to each anniversary 'date, serve written notice on the
other party of changes desired in wage rates for job classification,
or classifications, hours of work, working conditions, or other con-
ditions of employment. •
On January 10, 1944, the UWOC informed the Company in writing
that,it,wished to negotiate changes in the contract, but that, consider-
ing certain factors, it would agree to an extension of the present agree-
ment until May 13,1944. The Company replied accepting the extension_
"with all of the terms and conditions therein including a,30-day noti--
' See Hatter of Delesc & Shepard Company, et al , 56 N L R B 532. -
The contract contains no other clause concerning termination2
DUQUESNE LIGHT COAIPAN2 773
fication of any desire to negotiate the changes." The Company and
-the UWOC stipulated that the effect of this exchange of letters was to
renew the contract from May 13, 1944, to May 13, 1945, and they both
assert that the said contract renewal is a -bar to a present determi-
nation of representatives among the employees in the Colfax unit.
We cannot accept the stipulation. Neither the Company nor the
UWOC, in their exchange of letters, suggested that the contract be
extended' for any term, beyond May 13, 1944. The 30-day clause
requested by the Company was apparently to protect the Company
with regard to the negotiation of certain changes already requested.
We find that the contract executed February 13, 1943, and the renewal
thereof expired May 13, 1944. For this reason, and for the further
reason that we hereinafter find that Colfax is not a unit appropriate
for collective bargaining, the contract is no bar to a present determi-
nation of representatives by the employees in the Colfax unit.
The Mines unit, which is covered by a contract between the Company
and the United Mine Workers of America, is not involved in this
proceeding.
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the UWOC represents a substantial number of
employees in each of the units hereinafter found appropriate.3
We find that questions affecting commerce have arisen concerning
the representation of employees of the Company, within the meaning t
of Section 9 (c) and Section 2 (6) and (7) of the Act. •
IV. THE APPROPRIATE UNITS
The Company operates in five main, operating departments and six
geographical divisions. The Power Plants Department controls the
Company's five power plants which are designated Phillip's, Reed,
Brunot's Island, Stanwix, and Colfax. Colfax Power Station was the
first division of the Company to be organized by any labor organiza-
tion. At first the Company recognized both 'an unaffiliated union and
the predecessor to the UWOC 4 as representative of their respective
members at the Colfax station: This arrangement began in April .
1937, and lasted for about a year. From that time until October 1939,,
the issue of representation of the Company's employees was in litiga-
3 The Field Examiner reported that the UwOC submitted 484 8pphcation-for-m6ibership
cards, 389 of which bore signatures of persons whose nanies weie.listed on the Company's
pay roll of January 31, 1944, which contained the names of 1,508 production and main-
tenance employees in the appropriate unit'; and that the cards were dated July 1943
through April 1944
The U\VOC submitted 71 additional application-for-membership cards The names of
52 persons appearing on these cards were contairicd in a pay roll of the same date which
contained the names of 123 militarized plant-protection employees. The cards *ere dated
July 1943 through January 1944
The Independent relines upon its contracts to show its intarest in the proceedings.
' United Electrical , Radio and Machine Workers of America, CIO'
774 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. In that month the Pennsylvania Labor Relations Board, herein
called, the PLRB, issued, a Decision ordering elections in two units,
system-wide in scope,, one consisting of the manual workers in the em-
ploy of the Company, most of whom were hourly paid, herein called
Unit #1,5 and one consisting of the clerical and technical employees
of the Company, all of whom were monthly paid, herein called Unit
#2. Supervisory employees were excluded from both units. The In-
dependent won both elections. On August 14; 1940, the Company
and the Independent executed an agreement covering the employees
in Unit #1, which at that time included the hourly paid employees at
Colfax. On May 31, 1941, the UWOC asserted the right to represent
- the employees at the Colfax Power Station in a separate unit, and
threatened a strike in that station. As a result of an election held
thereafter by the PLRB,6 the UWOC was certified as bargaining
representative of the Colfax-hourly paid employees, and on February
13, 1943, executed its first and only contract with.the Company cover-
ing those employees.
The UWOC now requests two separate units, one composed of all
of the employees in Unit #1, excluding, however, the employees at the
Colfax Power Station; the other composed of the militarized guards
employed by the Company, presently included in Unit #2. The In-
dependent, contends that the only proper unit for bargaining for the
employees of the Company is one composed of all-of the employees of
the Company, and of Allegheny Steam Company, herein called Alle-
gheny, a Wholly owned subsidiary of the Company? The Company
takes the position that its employees, should be. represented in two
units coextensive with Unit #1 and Unit #2, each including appro-
priate categories of the employees of , Colfax Power Station, , and
militarized guards, but excluding employees of Allegheny. -
The Board, after examining the facts in many situations similar
to those herein presented, has reached certain conclusions which are
applicable hereto :
(1) As to the Independent's contention that the clerical and techni-,
cal employees of the Company should be combined with the production
and maintenance employees into a single unit for the purposes of
collective bargaining, the Board has "found that the interests of clerical
and technical employees, on one hand, and production and mainte-
" Unit #1 as set up by the PLRB' included Colfax. -
6 The decision of the PLRB setting up the Colfax unit was affirmed by a Pennsylvania
State Court November 12, 1941. This decision was appealed to the Pennsylvania Supreme
Court and sustained by that Court on November 23, 1942.
7 Allegheny had no notice of the proceedings except through its relationship to the Com-
pany. The Company had no notice of this contention of the Independent prior to the filing
of the Independent 's petition to.intervene , May 22, 1944. The record does not establish
the necessity of combining the employees of Allegheny in a single unit with those of the
Company for the purposes of collective bargaining . We shall, - therefore , not considerathis-
contention of the Independent determining the appropriate unit herein. ,
1 ^
i DUQUESNE LIGHT COMPANY 775
nance employees, on the other hand, are so divergent that, generally,
they cannot be represented in a single unit to the best advantage of
both types of-employees.8 The bargaining units as set up by the
PLRB, although described.in terms of "hourly-paid" and "monthly-
paid" employees, conform to this view. We shall, therefore, adhere
to the line of demarcation established by the PLRB and adopt as basic
the unit described by the PLRB in terms of hourly paid employees.
Since, however, the distinctive characteristic of the employees in the
two units is not the method of payment but the type of work per-
formed, we shall depart from the PLRB's terminology and shall
describe such unit in terms of the functions, performed by its'
constituents.
(2) As to the UWOC's contention that the employees of -the.Colfax
Power Station should not be included in the appropriate unit, the
Board has found that a system-wide unit of a public utility is the opti-
mum' unit and is the only appropriate unit,whenever there is a labor
organization in a position to represent employees throughout the
system.' Both labor organizations involved herein ate apparently in a
position to represent the employees in the optimum unit. The Colfax
Power Station is an integral part of the Company's system. It cannot
function to any' useful purpose without coordination with other de-
partments of the Company. The Company cannot furnish the public
complete and proper service without it. Its employees are inter-
changeable with employees in other power station,of the system. The'
close integration of the Colfax Power Station in the system as a-whole
is proof of the efficacy of the principle above stated. The,history of
collective-bargaining concerning these employees reveals no uniform
pattern: It establishes, at most, the fact- that a- majority of them
favor the UWOC. In the light of the strong factors favoring the
appropriateness of the larger unit, this fact is not persuasive of the
appropriateness of the smaller unit which the UWOC would leave un--
disturbed 10 Nor does the existence of a separate unit covering the
mines of the Company have any bearing on the issue. The Company's
mines are not integrated into the system. Accordingly, we shall
include the maintenance and production employees at the Colfax
Power Station in the system-wide unit hereinafter found appropriate.
(3) As to the UWOC's contention that the militarized plant-pro-
tection employees of the Company should be.represented in a separate
unit, apart from the employees of Unit #2 and all other non-mili-
tarized employees, the Board has found that militarized plant-
See Matter of Boston Edison Company, 51 N. L. R. B. 118; Matter of Indianapolis
Light c6 Power Co., 51 N. L. R. B. 670: Matter of Sierra Pacific Power Co., 56 N. L. R.'B.,
458.
1,See, Matter of Pennsylvania Electric Company„ 56 N. L. R B. 625, and cases cited
therein: "
10 See Matter of Pittsburgh Plate Glass Co .. 10 N L . R. B. 1111.
776 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -
protection employees must be represented in a unit', separate from
non-militarized employees."" ,The inclusion of the militarized guards
and watchmen of the Company in Unit #2, is therefore inappropriate.'
We shall establish a separate unit composed of militarized watchmen
and guards and afford them an opportunity to select, a bargaining'
representative.
The parties are in agreement as to the' constituency of the units
hereinabove discussed with The exception of the following categories
of employees whom the Company contends are supervisory
.employees 12
Shift foremen: Prior to the certification of the Independent by the
PLRB on May 15, 1940, the Company employed certain operators
classified as boiler operator A, switchboard operator A, and turbine-
operator A. Before entering into a contract with the Independent
following the latter's certification, the Company changed the classi-
fication of such "A" operators to that of shift foremen and granted
them an increase in pay. Although they voted in the 1940 election
they were not covered by the 1940 contract. Their duties have'-not
been materially altered, but the Company has gradually_entrusted
them with increased responsibility. They have no authority to hire
but they may discipline, and their recommendations concerning pro-,
motion are given great weight. They attend foremen's meetings and
foremen's classes. For the reasons above given, we find that shift fore-
men are supervisory employees, within the meaning of our usual
definition and we shall exclude them from the appropriate units.
Chief, operators in substations are in responsible charge of their
stations. The substation operators who work on shift turns- at° these
.substations report to the chief operators, who have the responsibility,
to train these operators, and to see that a substation is manned and
is in good working order. The chief operators coordinate the work
of all persons in the substation and determine when work is to be
started and stopped. They have all the authority which the shift
foremen enjoy. Chief operators have never been included in any
bargaining-unit. We find that they are supervisory employees and
shall'exclude them from the unit.
Hourly rated fore `men are employed only in the construction depart-
ment. They supervise groups of men, performing the same work as,
the men under them only in emergencies. Their`,recommelidations
concerning the discharge, promotion, or transfer of the men in their
charge are given great weight by the Company's officials. 'They have
never been included in any bargaining unit. We find that hourly rated
13 Matter of Drava Company , 52 N L R . B. 322.
' The Independent would include these employees in the unit , the UWOC would include
the shift foreman and Chief of Guards B and takes no position as to chief operator and
hourly rated foremen. .
DUQUESNE LIGHT COMPANY 777
foremen are supervisory employees and we shall exclude them from
the unit.
Chiefs of Guards B : All parties agree that the Chiefs of Guards,
who are in charge of all guards at the stations to which they are
assigned, should be excluded. Next in authority under these persons
are the Chiefs of Guards B 13 They, are in charge of shifts and are
responsible for the protection of their stations during their tour of
duty. Their recommendations concerning the status of guards. B
are considered by the Company. We consider Chiefs of Guards B
to be supervisory employees and we shall exclude them from the unit:'
We find that all maintenance and production employees of the
Company, including trouble men, utility men, service men, material
men, cable testers, field clerks, and service crew leaders but excluding
shift foremen, mine employees in the unit presently represented by
United Mine Workers of America, clerical and technical employees,
all militarized pl'anf-protection employees, and all supervisory em-
ployees with authority to hire, promote, discharge, discipline. or other-
wise effect changes in the status of employees, or effectively recom-
mend such action constitute- a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of,the Act.
We further find that all militarized plant-protection employees of
the Company, excluding all supervisory employees with authority to
,hire, promote, discharge,- discipline, or otherwise effect changes in
the status of employees, or effectively recommend such action con-
stitute -a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the questions concerning representation which
have arisen be resolved by elections by secret ballot among the em-
ployees in the appropriate units who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tions herein, subject to the limitations and, additions set forth in the
Direction.
DIRECTION OF ELECTIONS
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 9, of National Labor Rela-
tions Board Rules and-Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Duquesne Light
13 This title arises from the fact that most guards are termed "guards B 11
778 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, Pittsburgh, Pennsylvania, elections 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 Sixth 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 Regulations, among -
the employees in the units 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 dur-'
ing the said pay-roll period because they were ill or on vacation or
temporarily laid off, and including employees in the armed forces
of the United States who present themselves in person at the polls,
but excluding those employees who have since quit or been discharged
for cause and have not been rehired or reinstated prior to the date ^
of the election, to determine whether they desire to be represented by
Utility Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, or, by Independent Association of Em-
ployees of Duquesne Light Company and Associated Companies,
for the purposes of collective bargaining, or by neither.
MR. GERARD D.-REILLY took no part in the consideration of the above .
Decision and Direction of Elections.
e