Duquesne Light Co.

National Labor Relations Board - Board Decisions

Oct 11, 1946

71 N.L.R.B. 336 (N.L.R.B. 1946)

In the Matter of DUQUESNE LIGHT COMPANY , EMPLOYER and UTILITY
DIVISION , DISTRICT 50, UNITED MINE WORKERS OF AMERICA , PETrI-
TIONER
Case No. 6-R-1661.-Decided October 11, 1946
Messrs. Joseph Lepie and Robert Silagi, for the Board.
Messrs. Nicholas Un1 ovii and John C. Wayman, of Pittsburgh, Pa.,
for the Employer.
Mr. Yelverton Cowhcrd,.of Washington, D. C., for the Petitioner.
Mr. Herman Leipsitz, of Pittsburgh, Pa., for the Independent.
Messrs. Herman E. Cooper and H. H. Ostrin, of New York City,
and Mr. John P. McGovern, of Pittsburgh, Pa., for the CIO.
Air. William F. Walsh, Jr., of Washington, D. C., and Mr. A. R.
Johnson, of Pittsburgh, Pa., for the IBEW. -
DECISION
AND
DIRECTION OF ELECTION
Upon a-petition duly filed, hearing in this case was held at Pitts-
burgh, Pennsylvania, on October 10, 1946, before Arthur Leff, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
:Board makes the following:
FINDINGS OF FACT
I. THIS BUSINESS OF THE EMPLOYER
Duquesne Light Company is a Pennsylvania corporation, with its
principal offices located in the city of Pittsburgh, Pennsylvania. • It is
a subsidiary of the Philadelphia Company, a holding company which
is in turn a subsidiary of the Standard Gas and Electric Company. It
is engaged in the business of generating and distributing electrical
power to consumers situated in Allegheny and Beaver Counties, Penn-
sylvania, and through its connections with transmission lines of other
companies, it occasionally distributes to and receives power from
points in Ohio and West Virginia. Findings as to the nature, extent,
71 N. L It B, No. 47
336
DUQUESNE LIGHT COMPANY 337
and volume of the Employer's purchases and electricity distribution
for the 9-month period ending September 30, 1943, were made by the
Board in Case No. 6-R-911 and 6-R-912. (57 N. L. R. B. 770.) At
the hearing in the instant case, the Employer stipulated that since
September 30, 1943, it has continued to purchase materials and supplies
and to generate and distribute electricity in approximately the same
amounts as during the period therein described.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
II. TITS ORGANIZATION INVOLVED
The Petitioner, affiliated with the American Federation of Labor;
Independent Association of Employees of Duquesne Light Company
and Associated Companies, unaffiliated, herein called the Independent;
International Brotherhood of Electrical Workers, affiliated with the
American Federation of Labor, herein called the IBEW; and Utility
Workers Union of America, affiliated with the Congress of Industrial
Organizations, herein called the CIO; each is a labor organization
claiming to represent employees of the Employer.'
III. THE QUESTION CONCERNING REPRESENTATION
The Employer refuses to recognize the Petitioner as the exclusive
representative of employees of the Employer unless and until the Peti-
tioner has been certified by the Board in an appropriate unit.
There is only one issue in this case. The Independent contends that
a contract, dated March 13, 1945, as thereafter supplemented, between
it and the Employer, constitutes a bar to a present determination of
representatives. The CIO and the IBEW dispute the contention of
the Independent that the contract is a bar. They contend, in sub-
stance, that this contract was reopened for unlimited renegotiation
prior to its latest automatic renewal date and that since negotiations
for a new or modified contract had not yet closed at the time the peti-
tion was filed in this proceeding, the contract cannot be deemed to
operate as a bar. The Employer takes a neutral position on this
issue.
The contract, dated March 13, 1945, contains, as Section 28 thereof,
the following termination provision :
This agreement shall be in effect retroactive from September 1,
1944, and shall continue in effect until August 31, 1946, and there-
after from year to year until cancelled or otherwise terminated
as herein provided. Either party may cancel the agreement at
'At the hearing, motions for leave to intervene made by the Independent , the IBEW,
and the CIO were granted by the hearing officer.
338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the expiration date or at the end of any subsequent yearly period
by giving to the other written notice thereof at least sixty (60)
days in advance of such date.
Without cancelling the agreement, either party may sixty (60)
days prior to each anniversary date serve written notice on the
other party of changes desired in wage rates for job classifications,
job classifications, hours of work, working conditions or other
conditions of employment.
The contract, elsewhere, contains two provisions permitting contract
modifications in limited respects during the established term of the
contract. Thus, it is provided that if, during the term of the agree-
ment there is a revision of the Wage Stabilization Policy, the Em-
ployer, on demand of the Independent, shall within 10 days meet and
negotiate changes in wage rates. It is also provided that while wage
rates for job classifications, job classifications and hours of employ-
ment shall remain the same, working conditions and other conditions
of employment may be changed or modified by negotiation, upon 10
days' notice by the party seeking such adjustment.
On June 28, 1946, the Employer and the Independent exchanged
letters of notification pursuant to the provisions of Section 28 of the
contract. The Independent's notice, addressed not only to the Em-
ployer but to various companies affiliated with the Employer and for
utihose employees the Independent was bargaining representative in
other units, stated :
The union requests a meeting with you at your earliest convenience.
The purpose of the meeting is to make certain changes in wages,
working conditions, and other conditions of employment for all
employees in the Duquesne Light Company, Allegheny County
Steam Heating Company, and Equitable Auto Company, as cov-
ered by Independent union contracts.
The Employer's letter to the Independent read as follows :
As provided in Section 28 of the above agreement, you are
hereby notified that this Company desires changes in the agree-
ment and will be prepared to present and consider the changes in
detail with your Negotiating Committee at such time as it is con-
venient for you to meet with us.
You are hereby notified that the Supplemental Agreement
dated March 13, 1945, relating to employees in the Engineering
and Construction Department is hereby cancelled effective Au-
gust 31, 1946. 2
2 The Engineering and Construction Department employees were within the unit involved
in this proceeding The record elsewhere indicates that the Employer planned at that time
to discontinue the services of these employees in that department.
DUQUESNE LIGHT COMPANY 339
Thereafter, on July 16, 1946, the Independent presented to the Em-
ployer a draft of a proposed new contract for a term of 1 year com-
mencing September 1, 1946. The proposed contract covered not only
the employees in the unit involved in this proceeding, but employees
in all other units theretofore represented by the Independent as well as
certain employees who had not theretofore been represented in any
of the units. It named as parties to the contract, in addition to the
Employer, various affiliated companies of the Employer who were
employees in other units. The proposed new agreement revamped
entirely the provisions of the old contract. Among the provisions of
the old agreement which it proposed to modify in substantial
respects, to mention only a few of them, were those relating to
wage rates , overtime allowances , grievance procedure , holidays, va-
cations, shift differentials, probation periods, and compensation to
employees on settled grievances. It also proposed the inclusion of
many substantive provisions not found at all in the old contract;
among them were provisions for a union shop , for a pension plan,
separation allowances, and hospitalization insurance.
The Employer took the position that the Independent's proposal
concerning the parties to the contract was not negotiable, but other-
wise agreed to negotiate all the proposals found in the Independent's
proposed new contract. At various times thereafter the Employer
submitted counter-proposals in the form of proposed modifications to
the old contract. The counter-proposals, which included deletions,
modifications, and additions to the old contract, likewise covered a
wide range of substantive provisions, among them provisions relating
to wages, working conditions, hours of work, dues deductions, strikes,
bulletin board postings, seniority, grievances, vacations, and holidays.
The negotiations for a new or modified agreement, as described
above, were still continuing, and no agreement thereon had been con-
cluded, when, on October 5, 1946, the petition for certification of
representatives in this proceeding was filed.
It is clear from the foregoing facts, and we find, that the Independ-
ent and the Company, when they exchanged notices on June 28, 1946,
did not intend merely to negotiate such modifications as the contract
contemplated might be made during its fixed term, but intended,
rather, to reopen the contract for complete re-negotiation looking
toward a new contract to supersede the contract which by its terms
was to expire, unless automatically renewed, on August 31, 1946. The
notices were given pursuant to Section 28 of the contract, a section
which may be invoked only at a time normally suitable for the exer-
cise of the power, possessed by each of the contracting parties, to pre-
vent the automatic renewal of the agreement for another year. Under
that section and the notices given pursuant thereto, the contract
340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
changes that might be made covered a substantially unlimited range
and were such as parties usually contemplate when they propose to re-
view the provisions of an old contract primarily as a basis for negotiat-
ing a new one for the succeeding contract term. That this was the in-
tent of the parties to the contract in the instant case, is proved by the
form of the proposals and counter-proposals as well as by the basic
character and the substantiality of the contract changes thereafter sub-
mitted for negotiation, changes which extended far beyond the scope
of the original contract. Under the circumstances, the reservation
"without cancelling the agreement" which appears in Section 28 and
in the Employer's notice can at most be construed, as we find, to mean
that where a notice under that section is given, the old contract will be
deemed to continue in effect beyond its original term during the in-
terim period pending the completion of negotiations for a new con-
tract. So construed, the old contract which is here relied on as a
bar, became, at the expiration of its original term, a contract of in-
definite duration, and cannot therefore operate to preclude a present
determination of representatives. In any event, it is apparent in the
instant case that the negotiations entered into between the Employer
and the Independent following the exchange of the notices were so
broad in scope as to constitute a complete reopening of the contract.
We find, therefore, that the filing of the petition was timely, and that
the contract between the Employer and the Independent constitutes
no bar to a present determination of representative;.-3
We find that a, question affecting commerce has arisen concerning the
representation of employees of the Employer within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The parties are agreed, and we find, that all maintenance and pro-
duction employees of the Employer, 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 plant-protection employees, and all or any
other supervisory employees with authority to hire, promote, dis-
charge, 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.
s Cf Matter of United States Vanadium Coy poration , Pine Creek Unit, 68 N. L. R B.
289: Matter of Olin Industries, Inc (Western Cartridge Oompany Division, East Alton,
Illinois), 67 N L It. B. 1043, Matter of Atlas Felt Products Company, 68 N. L It B 1 ;
and Matter of The Ohio River Company (Illinois River Division ), 66 N L. R B. 128.
DUQUESNE LIGHT COMPANY
V. THE DETERMINATION OF REPRESENTATIVES
341
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot, subject to the
limitations and additions set forth in the Direction.
At the time of the hearing, the employees in the unit above found
appropriate were on strike. Under the circumstances and in accord-
ance with an agreement of all the parties, we shall direct the use of
the pay-roll period ending September 15, 1946, the last pay-roll period
immediately preceding the current strike, for purposes of determin-
ing eligibility to vote.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Duquesne Light Company,
Pittsburgh, Pennsylvania, an election by secret ballot shall be con-
ducted as early as possible, but not later than ten (10) days 4 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 Sections 203.55
and 203.56, of National Labor Relations Board Rules and Regula-
tions-Series 4, among the employees in the unit found appropriate in
Section IV, above, who were employed during the pay-roll period end-
ing September 15, 1946, including employees who did not work during
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 Division,
District 50, United Mine Workers of America, or by Independent
Association of Employees of Duquesne Light Company and Asso-
ciated Companies, or by International Brotherhood of Electrical
Workers (AFL), or by Utility Workers Union of America (CIO), for
the purposes of collective bargaining, or by no union.
4In view of the critical situation in the City of Pittsburgh resulting from the current
strike and in the interest of providing an expeditious resolution of the pending representa-
tion question, we deem it advisable to depart from our normal practice of directinz the
holding of elections within 30 days.