Iowa Electric Light and Power Co.

National Labor Relations Board - Board DecisionsDec 22, 1942

46 N.L.R.B. 230 (N.L.R.B. 1942)

In the Matter of IOWA ELECTRIC LIGHT AND POWER COMPANY and LocAL UNION No. 275 OF INTERNATIONAL UNION OF OPERATING ENGINEERS AND INTERNATIONAL UNION OF OPERATING ENGINEERS, LOCAL UNION No. 931 OF INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS AND INTERNATIONAL BROTHERHOOD OF ELECTRICAI, WORKERS Case No. RE-51-Decided December 22, `191 Jurisdiction : electric utility industry. Investigation and Certification of Representatives : existence of question: stipulation as to; policies of Act best effectuated by proceeding to a determina- tion of a jurisdictional dispute between affiliates when parent union's refusal to make a determination of their claims left them without means of adjudicat- ing the controversy ; elections necessary. Units Appropriate for Collective Bargaining : elections directed among (1) all employees of the Cedar Rapids power plant, with specified inclusions, and (2) all employees of the Cedar Rapids District, exclusive of the power plant,, and with other specified inclusions and exclusions, determination of separate or single units dependent on results of elections. Mr.'T. Lowry Whittaker, for the Board. Mr. Frank C. Byers, of Cedar Rapids, Iowa, for the Company. Mr. John D. Randall, of Cedar Rapids, Iowa, for the Operating Engineers. Mr. J. Harris Igou, of Austin, Minn., and Mr. 0. N. Elliott, of Cedar Rapids, Iowa, for the I. B: E. W. MissMelvern R. Krelow, of counsel to the Board DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon petition duly filed by Iowa Electric Light and Power Com- pany, Cedar Rapids, Iowa, herein called the Company, alleging that a question affecting commerce had arisen concerning the representa- tion of employees of the Company at Cedar Rapids, Iowa, the Na- tional Labor Relations Board provided for an appropriate hearing upon due notice before Edward G. Smith, Trial Examiner. Said hearing was held at Cedar Rapids, Iowa, on September 29, 30, October 1, 2, 3, 5, 6,-and 7, 1942. The Board, the Company, Local Union No. 46 N. L. R. B., No. 32. 230 IOWA ELECTRIC LIGTIT AND POWER COMPANY 231 275 of international Union of Operating Engineers and International Union of Operating Engineers, herein called the Operating Engineers, and Local Unioxi, No. 931 of International Brotherhood of Electrical Workers and International Brotherhood of Electrical Workers, herein called the I. B. E. W.,'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. On October 27, 28, and 29, 1942, the I. B. E. W., the Company, and the Operating Engineers, respectively, filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Iowa Electric Light and Power Company, an Iowa corporation having its principal place of business in Cedar Rapids, 'Iowa, is en- gaged, principally, in the generation, transmission, sale, and distri- bution of electric energy. It also produces and distributes steam and fuel gas and operates an interurban electric railway known as the Cedar Rapids- and Iowa City Railway. It carries on its operations in an -area about 200 miles long, east and west, and 50 to 60 miles wide, north and south. In this area the Company operates, besides its elec- tric railway, 8 power plants for the generation of electricity, trans- mission lines, numerous local electrical distribution systems, and local distribution gas pipe lines in 9 cities and towns. The Company serves approximately 59,000 consumers of electricity, of which approximately 44,900 are resident consumers. All of the electric power plants of the electrical distribution systems are interconnected by transmission lines, so that power from each plant is available to and is drawn upon by the Company's entire system. The Company's properties and operations are divided into 3 dis- tricts, namely, the Cedar Rapids District, Marshalltown District, and Boone District. The employees are grouped into classifications, the number, and to some extent, the scope of which vary in different lo- calities within the districts. The employees number approximately 840, of whom approximately 345 are involved in this proceeding. About 142 employees are in the Company's electric power plants, ap- proximately 144 in transmission, distribution, servicing, and.metering, and about 59 in gas plants, and in the distribution, servicing, and meter- ing of gas. 232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD During the year preceding September 1, 1942, the Company pur- chased for use in its business coal, coke, steel, supplies, and other prod- ucts- and materials, valued at approximately $2,250,000, of which ap- proximately 60.percent was purchased in States other than Iowa, and shipped to the Company's various plants,in Iowa., The Company's gross income during this period was approximately $6,500,000. 'The Cedar Rapids power plant generates approximately, 70 percent of all electricity,,generated by the Company. For the year preceding September 1, 1942, the Company purchased fuel and other products and materials for use in connection with its Cedar Rapids power plant costing approximately $675,000, of 'Which about $400,000 worth was purchased outside Iowa and shipped to the Company's plant in Cedar Rapids. During the same period the Company purchased a substan- tial amount of equipment and material for use in connection with its ,transmission lines throughout the system, of which about 60 percent was purchased outside Iowa and shipped to Iowa. For the year preceding September 1, 1942, the Company's gross in- come from the sale of electricity generated at the Cedar Rapids power' plant was approximately $3,500,000, including $2,000,000 received for electricity sold in Cedar Rapids. The Company is the sole distributor of electricity in Cedar Rapids, and in all other cities and towns which it serves with electricity. The Company supplies and sell's electricity generated at all of its, electric power plants to interstate carriers, to interstate means of communication, to companies engaged in interstate commerce; and to Federal Government Agencies. The Company admits for the purposes of this proceeding that Wig engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED International Union of Operating Engineers and its Local Union No. 275 'are labor organizations affiliated with the American Federa- tion of Labor, admitting to membership employees of the Company. International Brotherhood of Electrical Workers and' its Local Union No. 931 are labor organizations affiliated with the American Federation of Labor, admitting to membership employees of the Com- pany- The parties stipulated that a question concerning representation had arisen in that each union requested recognition and collective bar- gaining in units which conflict, and that the, Company refused such requests unless and until either union is certified` by the Board. IOWA ELECTRIC LIGHT AND POWER COMPANY = 233 At the hearing the parties stipulated that the jurisdictional dispute between the I. B. E. W. and the Operating Engineers, both affiliates of the American Federation of Labor, had been submitted, at the re- quest of the Company, to the officers of each International for settle- ment; that no settlement had been effected by such submission; and -that the American Federation of Labor, to which the dispute was thereafter referred, had "refused to consider and make a determination of the conflicting claims of the rival unions." The parties further stipulated that, since there is no other adequate or appropriate ma- chinery available for adjudicating the controversy, they desire that it be resolved by the Board. Under these circumstances, we are of the -opinion and find that the purposes of the Act will best rbe effectuated by proceeding to a determination of the= controversy. A report prepared by the Regional Director and introduced in evi- dence at the hearing indicates that the Operating Engineers repre- sents a substantial number of employees in the Cedar Rapids power plant, the unit claimed by it to be appropriate;,and that the I. B. E. W. represents a substantial number of employees in the Cedar Rapids Dis- trict; which is the only portion of the Company's system for which the I. B. E. W. is not presently recognized as exclusive bargaining .representative.' 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. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES The Operating Engineers contends.that all employees of the'Cedar Rapids power plant of the Company with certain inclusions and exclusions, noted below, is appropriate. The I. B. E. W. and the Company urge that all employees of the Company with certain inclu- sions , and exclusions, also noted below, constitute an appropriate unit. The Company's main office is located in Cedar Rapids; Iowa, where the executive control of the Company is centered, the labor policies of the Company are centralized, all contracts with reference to work- The Regional Director reported as follows : Operating Engineers : Sixty-five authorization cards dated between March and April 1942, 56 of which bear names on the pay roll as of July 13, 1942 , for the Cedar Rapids power plant , which is the unit claimed by the Operating Engineers . This pay roll lists 78 employees in this plant , 76 of whom are in the unit claimed by the Operating Engineers as appropriate. 1. B B TV : The I. B. E. W. submitted several types of cards, 5 petitions, and a charter, bearing apparently genuine signatures and dates from January 1941 to Sep- tember 1942. Sixty-six of these bear names of persons whose names appear on the Company 's pay roll submitted for the Cedar Rapids power plant ; 47 bear the names of persons whose names appear on the Company's pay roll for the Cedar Rapids District, exclusive of the Cedar Rapids power plant. There are approximately 375 employees in the unit claimed by the I . B. E. W. as appropriate. 234 DECISIONS OF NATIONIAL LABOR RELATIONS' BOARD jug conditions, hours of employment, and wages with regard to all employees are executed and the general policies 'of the Company are determined. The wage scales and classifications are determined and set up by the. general office, which has formulated a plan establishing -relative wage scales for all employees throughout the system. The vice president and general manager, who is located in the general of- fice, supervises the operations of -the Company-. . The Company has a - central load dispatcher who is stationed in the general office. The Company has three Districts : Cedar Rapids, Boone, and Mar- shalltown. Each district has an,.administrative'-head, known as the district manager. Within each district are divisions, and each division has an administrative head, known as a division manager. The divi- sion manager is responsible to the district manager, and the district manager, in turn, is,responsible to the vice president and general manager. The district managers may hire temporary employees or employees needed in an emergency. However, their action requires the final approval of the general office. Grievances may be taken up with the division manager, district manager, or the general office.- All employees are on the same hourly basis, and are engaged in similar duties throughout the system. There are occasional transfers of em- ployees from one division to another'and from one district to another. The history of collective bargaining in the Company's system reveals that the Company has entered into contracts with a number of labor organizations covering various groups of employees. In August 1934, the Company entered into a written collective bargaining contract with Association of Power House Employees of Cedar Rapids, Iowa, an organization of employees of the Company employed in and about its power plant in Cedar Rapids, herein called the Association, recog- nizing the Association as the bargaining agent of its members and fixing the wage rates and working conditions of employees in said power plant. The contract was renewed, or a new contract made, each year until October 1, 1940, when the last contract expired. - In April 1935, the Company entered into a written collective bar- gaining contract with Meter, Steam, and Transmission Association, an organization of employees of the Company in its transmission department at Cedar Rapids, the work of which includes street lightinb and the transmission and metering of steam and electricity. The original agreement was described as a "continuing contract." The organization disbanded approximately 60 days prior to the hearing in this proceeding. It had, however, prior to its dissolution, carried on little or no collective bargaining activities. - Sometime in January 1937, and several times thereafter,, up tolune 25, 1937, representatives of the I., B. E. W. and the Company met. As a result, on June 25, 1937, the Company entered into an agreement with IOWA ELECTRIC LIGHT AND- POWER COMPANY 235 the- I. B. E. W., through its Local Union No. 372, applicable to and fixing the wages and hours for "all work done by or for" the Company in its Boone District by employees in certain stated occupational cate- gories. This-contract was for a,period of 1 year, but provided that it -should continue in full force and effect from year to year thereafter unless 90 days' written notice was given by either party of amendment or cancelation. • The agreement provided : Article III (b). Should a majority•of any-classification of em- ployees, in any department of the Company, who are not covered by this Agreement or other Agreements between the Company and the Brotherhood, desire the Brotherhood to represent them, the representatives of the parties hereto shall meet on ten (10) days written notice from either party to the other or on a date mutually agreed on for the purpose of negotiating an agreement covering the hours and wage rates, of such,employees•and on- failure to fully agree, the points of difference shall be settled by arbitration in a manner as provided in this agreement. Should there be a ques- tion as to a majority of such employees desiring the Brotherhood to represent them, this question is to be settled by the holding of an election of such employees under the supervision of an agency agreed upon by the parties hereto. The I. B. E. W. and the Company made three addenda to the agree- ment pursuant to said,provision ; the first, effective as of October 1, 1937, applied to employees of the Company in its Perry Division; the second, effective as of December 1, 1937, applied to employees, of the Company in its Jefferson Division ; and the third, effective as of May 1, -1938, applied to employees of the Company in its Marshalltown Dis- trict. , It appears, therefore, that the I. B. E. W.'s contract now covers all employees of the Company, with specified exclusions, with the exception of the employees in the Cedar Rapids District 2 The agree- ment-and addenda-were in effect at the time of the hearing. In December 1940, members of the Association- held a meeting and decided to join an organization affiliated with the American Federa- tion of Labor. At a membership meeting of the Association on or about December 19, a majority of the members present applied for membership in the Operating Engineers International, and temporary local officers were elected. On December 21, application for a local charter was made to the Operating Engineers International. A char- ter was. issued on January 2, 1941, with jurisdiction over the Cedar Rapids power plant employees, excluding those in supervisory or cleri'- 2 The Company also has collective bargaining contracts with the International Associa- tion of Machinists , the Brotherhood of Railroad Trainmen , Track and Bridge Maintenance Workmen (Unaffiliated), and the I. B. E. W. covering various employees-of the Company's railway ., The parties agree that the railway employees are not involved here. 236 DECISIONS ' OF NATIONAL LABOR RELATIONS 'BOARD cal capacities. At the same time the I. B. E. W. began -organizing in the Cedar Rapids District and made collective bargaining: demands upon the Company. The Company refused the demands. On January 15, 1941, Local No. 931 was chartered by the I. B. E. W. In Janu- ary 1941, the 'Operating Engineers requested the Company to,enter into negotiations for collective bargaining. The Company refused on the ground that due to the existing dispute between -the Operating Engineers and the I. B. E. W. it could not negotiate With the Operat- ing Engineers at that time. On January 15, 1941, .the I. B. E. W. made further .demands upon the Company for collective ,bargaining. The, Company 'refused pending a determination of the appropriate bargaining unit.$ As heretofore stated, the I. B. E. W. is at the present time recognized ,by the Company in its contract ,as the exclusive representative of all -employees of the -Company other than those in the : Cedar Rapids District. There is, therefore, no dispute as to the I. B. E. W.'s status .as,the exclusive representative of that group. In view of the evidence 'that a substantial number, of the employees in the Cedar Rapids `power plant are members of the Operating Engineers, and in view ,of the nature of collective bargaining between the Company and vari- ous labor organizations, including the I. B. E. W. and the Association, we find that the Cedar Rapids power plant employees may properly be considered'as a separate unit or may be included with the employees 'now represented by the I. B. E., W., for the purposes of collective bargaining. Classification of employees - The Operating Engineers contends that the appropriate unit should include all employees of the Cedar Rapids power plant, excluding Herbeck, chief engineer, and Edward Jacks, 'the assistant engineer, guards, clerical workers, construction, electricians, and electrical meter testers. ' ,The I. B. E. W.' contends that the appropriate unit should include all production, generation, operation, transmission, distribution, main- tenance, service, meter, and construction employees of the Company, including all foremen, except those listed as superintendents and those classified as chief engineers in the steam plants. It would exclude temporary common laborers who are hired for a few ,days to clean up 3'J February 1941 the Operating Engineers filed charges alleging that the Company had engaged in unfair labor practices , inter ilea, in refusing to bargain with the Operating Engi- neers as the exclusive representative of,employees in the Cedar Rapids power plant. After complaint and hearing , the Board dismissed the charge relating to the alleged refusal to 'bargain, finding that the Operating 'Engineers had in effect withdrawn its request pending a 'determination of the dispute between it and the I. B. E W. as to the representation question. The Board accordingly did not determine the appropriateness of any unit. See Mutter of Iowa Electric Light and- Power ' Company and International Union ' of Operating Engineers, Local 275, affiliated with the A. F. of L., 38 N. L. It. B. 1124. ;'IOWA ELECTRIC LIGHT AND POWER COMPANY 237' on do, work of like character , office clerks ,, sales representatives , watch- men, and guards. With, regard to, the electrical construction employees ,, the. Operating Engineers , contends than all should be excluded , with the exception of, three-maintenance electricians , on the ground that they, are,temporary employees not under the jurisdiction of Herbeck ,, the chief, engineer, but' are . under the jurisdiction . of Howe, who has , charge of: all , con- struction electricians throughout the system . The I . B., E. W. con- tends - that these employees should, - be included . It appears that they are engiged in installing , changing , and remodeling , the equipment,, which . work, in many instances , lasts many years. They" are under the jurisdiction, of Howe. and not Herbeck . We shall ,_ therefore ,, exclude the electrical construction employees from the unit , alleged, by the Operating Engineers as appropriate . We. find that they should be included in, the, larger group, claimed by the ' 1. B. E. W., The Operating ; Engineers desires the inclusion of the. plant meter men, who work . in the power plant and make adj ustments, and, repairs -on water ' meters , steam flow meters,. and combustion control , equip- ment.',, Hoowever ,, it desires ,the exclusion of the. electrical meter, testers. These, employees . do' not work regularly in the . power- plant ,, but work there only a part of the- time makimg tests, on, meters , and relays, and, such , adjustments as are ' necessary . We- shall include the. plant meter- men, in the unit alleged by the Operating , Engineers as appropriate,, but conclude that the electrical meter testers should be included in the larger group claimed by the'I . B. E. W. As heretofore stated, the Operating Engineers and the I. B. E. W. desire' the inclusion of` the foremen . The' Operating Engineers also contends' that Herbeck and Edward Ja'cks ' should' be, exclud ed. The, I. B. E' W :, on the other hand, contends - that Herbeck-, should be, ex- cluded but that Edward Jacks should be included . The record shows' that Jacks is Herbeck's assistant and "takes care of" all operations and- all pipe work in the power plant . He has charge of the, routine operation and maintenance of the plant and instructs , the employees' what to do with respect to Herbeck's orders. He gives orders entailing' changes from normal or routine operations ' and notifies employees of'tlieir transfer to different jobs. He performs - manual work, such as welding ; pipe fitting , pulverizing , and repair work. He has no power to hire, discharge , promote, or, demote employees , but is, con- sulted with respect to demotions , promotions , and subordinates ' work,- and' he makes recommendations with, respect thereto : We find that the, supervisory duties of Jacks are - sufficient to warrent his' exclusion. We shall , accordingly, exclude Jacks . The I . B. E. W. has bargained with the Company on behalf of all foremen , including line foremen ; fliey are covered by the I. B. E. W .'s contract , and their duties are, 238 DECISIONS OF'-NATIONAL LABOR RELATIONS BOARD such -as to warrent their inclusion. We shall, therefore, include these, employees. In view of the absence of any question concerning representation among the employees covered by the collective bargaining contract between the I. B. E. W. and the Company, we shall, accordingly, direct that the question concerning representation which has arisen be resolved by separate elections (1) among all employees of the Cedar Rapids power plant, including foremen, but excluding Herbeck and Edward Jacks, guards, clerical workers, electrical construction em- ployees, electrical meter testers, and temporary common laborers, to determine whether they desire to be represented by ' the Operating Engineers or by the I. B. E. W. for the purposes of collective bargain- ing, or by neither; and, (2) among all the employees of the Cedar Rapids District, exclusive of the power plant, including foremen and, line foremen, electrical construction employees, and electrical meter testers, but 'excluding guards, watchmen, sales representatives, office clerks, temporary common laborers, and superintendents, to determine whether- or not they desire to be represented by the I. B. E. W. If the majority in each group select the I. B. E. W.,,they will thereby have indicated their desire to be included in the unit covered by the I. B. E. W.'s contract and will be part of such unit and contract. If the employees of the Cedar Rapids power plant choose the Operat- ing Engineers, that group will constitute a separate appropriate unit., 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 2, as amended, it is hereby DIRECTED -that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Iowa Electric Light and Power Company, Cedar, Rapids, Iowa, separate elections by secret ballot shall be conducted as early as possible, but, not later; than thirty (30) days from the date of this Direction of Elections, under the direction and supervision of the Regional Director for the Eighteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations; among. the following employees of the Com- pany who were employed during the pay-roll period immediately pre- ceding the date of this Direction of Elections, including employees who did not work during such 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 a IOWA ELE CTRIC LIGHT AND POWER COMPANY 239 polls, but excluding any employees` who have since quit or, been dis- charged for cause: (1) all employees of the Cedar Rapids power plant, including fore- men, but excluding Herbeck and Edward Jacks, guards, clerical workers, electrical construction employees, electrical meter testers, and temporary common laborers, to determine whether they desire to be represented by Local Union No. 275 of International Union of Operat- ing Engineers and International Union of Operating Engineers, or by Local No. 931 of International Brotherhood of Electrical Workers and International Brotherhood of Electrical Workers, for the purposes of collective bargaining, or by neither; and (2) all employees of the Cedar Rapids District, exclusive of the power plant, including foremen and line foremen, electrical construc- tion employees, and electrical meter testers, but excluding guards, watchmen, sales representatives, office clerks, temporary common laborers, and superintendents, to determine whether or not-they desire to be represented by Local No., 931 of International Brotherhood of Electrical Workers and International Brotherhood of Electrical Workers for the purposes of collective bargaining.