Indianapolis Power & Light Co.

National Labor Relations Board - Board DecisionsJul 13, 1945

62 N.L.R.B. 1279 (N.L.R.B. 1945)

In the Matter of I ,J)IANAPOLIS POWER & LLGIvr COMPAyY and INTER- NATIONAL BROTHERHOOD OF FIREMEN AND OILERS , A. F. OF 1. Case No. 11-R-796.-Decided July 13, 1945 Messrs. Arthur L. Gilliona and Roy Katterhenry, of Indianapolis.. Ind., for the Company. Messrs. William E. Fredenberger and Harold L. Colvin, of Louisville. Ky., and Mr. M. J. Costello, of Chicago. Ill., for the A. F of L Messrs. Carl Wilde and Owen J. Neighbours, of Indianapolis, Ind . for the Association. Mr. A. Sumner Lawrence, of counsel to the Board DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon an amended petition duly filed by International Brotherhood of Firemen and Oilers, A. F. of L, herein called the A F. of L., alleging that a question affecting commerce had arisen concerning the representation of employees of Indianapolis Power & Light Company. Indianapolis. Indiana, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before William C. :>\Iurdock, Trial Examiner. Said hearing was held at Indianapolis. Indiana, on May 10, 11, and 12, 1945 The Company, the A. F. of L. and the I P. & L Employees Protective Association, herein called the Association, appeared, participated. and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence hearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. The motions of the Company and the Association to dismiss the proceeding are denied for reasons here- inafter stated. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board snakes the following: 62 N L . R. B , No. 173 1279 1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Indianapolis Power & Light Company is a public utility incorporated in Indiana, with plants and offices in Indianapolis, Indiana, where it is engaged in the production and distribution of electrical energy and steam. The operations of the Company are conducted in several buildings, chief among them being the main administrative building and the four power plants known as Harding Street, Mill Street, Perry K, and Perry W. The cus- tomers ^of the Company total approximately 125,000, most of whom are located in Marion County, Indiana. Among the Company's customers are many interstate carriers, telegraph, telephone, and radio systems, together with numerous industries engaged in the manufacture of products used in connection with the war effort. The Company admits that it is engaged in commerce within the meaning of the National Labor Relations Act. II THE ORGANIZATIONS INVOLVED International Brotherhood of Firemen and Oilers, affiliated with the American Federation of Labor, is a labor organization admitting to meal= bership employees of the Company. I. P. & L. Employees Protective Association, affiliated with Confederated Unions of America, is a labor organization admitting to membership em- ployees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On March 21, 1945, the A F. of L. filed with the Board's Regional Office a petition for certification of representatives wherein it claimed to represent a majority of the Company's power plant employees. On March 22, 1945, the Board's Regional Director notified the Company of the filing of the A. F. of L.'s petition. In its reply to the Regional Director, the Company stated that it regarded as inappropriate the unit claimed by the A. F. of L. and further stated that it would maintain this position throughout the proceeding. Since September 1, 1937, the Association and the Company have been parties to an automatically renewable contract covering, among others, the employees whom the A. F. of L. seeks to represent. The contract, as amended, contains a clause requiring that notice of termination he given at least 60 days prior to June 16 of any year subsequent to 1943. Under that provision, the contract was automatically renewed on April 16, 1945, in the absence of any notice of termination given by either of the parties thereto. At the hearing, the Company and the Association contended that INDIANAPOLIS POWER & LIGHT COMPANY 1281 the existing contract constitutes a bar to this proceeding. In this connection, the Company in particular points to the fact that the A F of L. never directly notified the Company of its claim to representation prior to filing of the present petition. However, as noted above, the A. F. of L. filed its petition for certification and the Regional Director notified the Company of the A. F. of L.'s claim to representation well in advance of the automatic renewal date While we are of the opinion that direct notification to an employer by a labor organization of its representation claim is highly desir- able, the Board has customarily held that the filing of a petition prior to the automatic renewal of an existing contract is sufficient to prevent it from operating as a bar to a representation proceeding.' The statement of a Field Examiner for the Board, introduced into evi- dence at the hearing, indicates 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 Act. IV. TIIE APPROPRIATE UNIT The A. F. of L. contends that the production and distribution employees of the Company, excluding clerical employees, technical employees, super- visory employees, and certain fringe groups whose work is not related to production, constitute an appropriate unit. The unit thus proposed is, with the few exceptions hereinafter discussed,' almost identical with that found appropriate by the Board in a prior proceeding in 1943, involving the Company's employees.` The Company and the Association contend that the appropriate unit should include, in addition to the employees embraced by the unit of the A. F. of L., all non-supervisory and non-executive em- ployees of the Company. In support of their position, the Company and the Association point to the fact that the Association won the election which the Board directed in the former proceeding, since which occasion the Association has contniued to bargain for approximately 2 years upon a conn- pany-wide basis, including, in addition to the employees in the unit found appropriate by the Board, numerous other employees who were expressly r See Matter of Portland Lo,iibei e11dIv, 56 N I. R I3 1336 'The Field Examiner reported that the A F of L had submitted 200 authorization cards dated between Janu.vv and Ii.uch 1945, including 106 undated, of which 183 checked with the Coni- p.my's pay roll of April 14, 1945, containing 539 names within the unit claimed appropriate by the A F of L The Field Examiner further reported that the Association submitted a contract which it relied upon as evidence of its interests in a clammed unit of 928 eniplo3ees (1 The A F of L suggests a variation fm out the previous unit and would exclude fmonn the present unit the classifications of driver of mail car, 1st class (Transportation), truck driver IA (Perry K plant), relay engineer appmentice B (\fetei and Relay), survey engineer (Meter and Relay), load dispatchers (Dispatchers), and appliance repairnme,, (Appliance Repair and Electuc General). I Sec tllattc, of Indianapolis Power & Light Company, 51 N L R B 670 1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD excluded therefrom s On the other hand, it is clear that there have been no material changes since the date of the previous election, in either the operations of the Company, the duties of the employees, or the relationship of the various departments and divisions to one another.' Under the cir- cumstances, we are of the opinion that, although such employees have been covered by a contract between the Company and the Association, the employees thus previously excluded should be excluded from the appro- priate unit in this proceeding.' There remains for consideration the question of including or excluding from the appropriate unit employees in classifications which the A. F. of L. .desires to exclude from the present unit, although included in the unit found appropriate in the earlier proceeding. The employee in the classification of truck driver IA, objected to. by the A. F. of L. upon the ground that he is a confidential messenger, was in- cluded by agreement in the previous unit as an employee of Perry K plant under the general classification of truck driver. So far as the duties of this employee are concerned, the record reveals that the person in this classifica- tion drives a coupe between power plants for the purpose of transporting various supplies required for power plant operations, together with some interplant mail. It further appears that, while he is a messenger to the extent that he makes special trips to supply houses to secure materials and parts, he is not entrusted with confidential messages and when not other- wise engaged in delivering supplies, works in the storeroom of the Perry K plant where he performs the usual duties of a storeroom employee. In view of the foregoing and in the absence of evidence that the duties of this em- ployee have changed since the date of the prior decision, we shall include him in the unit hereinafter found appropriate. The A. F. of L. seeks to exclude from the unit by reason of his alleged confidential duties an employee who occupies the classification of driver of mail car, 1st class. This employee who with other garage department employees was included by agreement in the previous unit, is wholly employed by the Company and operates a company-owned sedan for the purpose of carrying between plants interoffice mail and occasional passen- gers who desire transportation to a particular plant for business purposes. The work of this employee requires the making of regular rounds to various buildings of the Company. In addition thereto, he observes the same hours c The Association takes the position that its selection by the employees in the unit previously found appropriate by the Board is a clear expression on the part of such employees of a desire to continue as part of the larger bargaining group historically represented by the Association prior to 1943 Since, however , there is nothing in the decision in the former proceeding to indicate that the selec- tion of a particular bargaining representative would reflect in any respect the desires of the employees as to the type of unit preferred by them for the purposes of collective -bargaining , we find that the contention of the Association is without merit 6 The only change claimed to have occurred in the Company 's organization is the temporary neces- sity of interchanging employees more frequently than formerly due to the present manpower shortage 7 See Matte) of The Matheson Alkali Works, 55 N. L R. B. 1100. INDIANAPOLIS POWER & LIGHT COMPAN-Y 1283 as the other employees of the Transportation Department. While the mail which he carries includes interdepartmental communications, he has no knowledge of the content of such communications. We find that he has no confidential duties which require his exclusion from the appropriate unit. Accordingly, in view of his relation to the Transportation Department employees and his inclusion in the previous unit of production and distri- bution employees, we shall include him within the unit hereinafter found appropriate. The position of relay engineer, apprentice B, objected to by the A. F. of L., constitutes the same work classification as that of meter engineer which was included by agreement in the previous unit, together with numer- ous other classifications in the Meter and Relay Department. The evidence discloses that the employee in the classification of relay engineer, apprentice B, tests and adjusts the newer types of relay equipment and performs work closely related to that of relay testers, as to whom no objection is raised by the A. F. of L. We find that this employee has substantial interests in common with the production and distribution employees comprising the unit hereinafter found appropriate. Accordingly, we shall include him in such unit. The A. F. of L. would also exclude employees in the classification of appliance repairmen upon thei ground that their work is not directly in- volved in producing or distributing electrical energy. The employees herein concerned were included by agreement in the previous unit under the classi- fication of repairmen in the Appliance Repair and Electric General Depart- ments. While the duties of these employees involve the repair of small appliances brought in by customers to the Company as distinguished from the repair of company-owned equipment used in the distribution of elec- trical energy, their work is in many respects similar to that of both trans- former repairmen and appliance repair fieldmen who repair large appliances on the premises of customers and whose relation to the distribution of electricity is not questioned by the A. F. of L. Since it appears that appli- ance repairmen perform work which is substantially similar to that of other 'employees in the production and distribution group, and have been included in the previous unit covering such employees, we shall include them in the unit hereinafter found appropriate. There remains to be considered the classifications of survey engineer and load dispatchers. The A. F. of L. would apparently exclude employees in these classifications as supervisory employees e The duties of these em- 8 The A F of L contends that, in the event load dispatchers are found to be non-supervisory employees, a similar finding should be made with respect to watch engineers who were excluded from the previous unit and have not been represented by the Association in subsequent bargaining with the Company Since it appears that watch engineers are in full charge of power plant operations during their respective shifts and have the power to effectively recommend changes in the status of other employees, we find that watch engineers are supervisory employees within the meaning of our usual definition, and we shall exclude them 1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ployees which are the same as they were on the occasion of the earlier proceeding, have been described in the previous decision in which, after full consideration, such employees were included within the appropriate unit Upon the.evidence in the present record, we see no reason to depart from our decision in that proceeding We shall, accordingly, include them within the unit. The Company suggests that watchmen and special police be included in the unit in view of the fact that, while they are still armed and uniformed, they are no longer militarized as they were on the occasion of the prior proceeding. However, it appears that such employees are still deputized although no longer subject to army supervision and control Under the circumstances, we shall exclude them from the unit of production and distribution employees.' , We find that all production and distribution employees of the Company, including from among certain departments the categories listed in Appen- dix A, but excluding the employees in departments listed i n Appendix B, as well as all clerks, stenographers, typists, teletype operators, telephone operators, accountants, billers, collectors, salesmen, saleswomen, watchmen and special police, engineers, draftsmen, technical employees, special rep- resentatives, administrative employees, watch engineers, and all supervisory employees with authority to hire, promote, discharge, discipline, or other- wise 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 We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the employees in the appropriate unit who were employed during the pay-roll period imme- diately preceding the elate of the Direction of Election 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representatives for the purposes of collective bargaining with Indianapolis Power & Light Company, Indianapolis, Indiana, an election by secret ballot shall be con- ducted 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 Eleventh Region, acting in this matter as agent for the See onatter of Columbian Paper Company, 60 N L R B 1201 INDIANAPOLIS POWER & LIGHT COMPANY 128 5 National Labor Relations Board and subject to Article III, Sections 10 and 11, of said Rules and Regulations 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 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 any who have since quit or been discharged for cause and have not been rehired or reinstated prior to the date of the elec- tion, to determine whether they desire to be represented by International Brotherhood of Firemen and Oilers, A. F. L., or by I. P. & L. Employees Protective Association, for the purposes of collective bargaining, or by neither. CHAIRMAN HERZOG took no part in the consideration of the above Deci- sion and Direction of Election. APPENDIX A Department Categories included in unit Electrical Operating Appliance Repairs Appliance and apprentice repairmen Dispatchers Load dispatchers Electricians Electricians Electric General Stores appliance repairmen Meter Installers All Meter and Relay All but clerks, stenographers. and laboratory technicians Overhead lines All but clerks Salvage* All Street Light Patrolmen All Substations All Transformer Repairs All Transportation (Garage) All but stenographers Troublemen All Underground All \lechanical All but stenographers and clerks-timekeepers Power Plants All but clerks, storeroom clerks with 'time- keeping duties, watchmen, and laboratory employees Kcal Estate Firemen-groundsmen Steam Heat All but technical assistant and secretary Stores Only those classifications engaged in the re- ceipt, distribution, repair and salvage of parts ' This department contavis genera l utility ciassifications fmmeily dish ihuted among other depai tmeuts 1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD APPENDIX B Department Advertising Bill Distributers Cashier Division Commercial Appliance Sales Commercial General Credit and Collections Customers Accounts Customers History and Service Engineering Executive Miscellaneous General Accounting General Power Plants and Research Home Econcnnics DepartinenI Lighting Sales Meter Reading Personnel and Public Relation, Personnel and Safety Power Sales Property Records Purchasing Rate Real Estate (except for Firemen- Groundsmen) Service Bureau Small Appliance Sale, Treasury-) l iscell,aneoii , I. 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