Montana-Dakota Utilities Co.

National Labor Relations Board - Board Decisions

Nov 26, 1954

110 N.L.R.B. 1056 (N.L.R.B. 1954)

1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, the holding of the election directed herein is condi-
tioned upon Local 819, IUE-CIO, achieving compliance within 2
weeks after the Decision and Direction of Election." No election will
be held pending compliance by Local 819, IUE-CIO.
[Text of Direction of Election omitted from publication.]
• Franklan Tanning Company, 104 NLRB 192, at 194.
MONTANA-DAKOTA UTILITIES Co. and INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, AFL, PETITIONER. Case No. I8-RC4239.
November 06, 1954
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Marshall J. Seidman,
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 this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent employees
of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c) (1) and Section 2 (6) and (7) of the Act.
4. The Employer is engaged in the production, transmission, and
distribution of both gas and electricity within the States of Minne-
sota, North Dakota, South Dakota, Montana, and Wyoming, and
employs about 900 persons. Its main administrative office is in Minne-
apolis. The physical operation of its properties is carried on by 17
operating divisions. The Union represents, by contract, the employees
of 15 of these operating divisions. Only employees of the Billings
(Montana) division, and the Crookston (Minnesota) division are
unrepresented.
Primarily, the Petitioner seeks to represent all of the Employer's
operating employees in one companywide unit, although it stated it
would accept any of several alternative units if such were found
appropriate by the Board. The Employer contends that it would be
inappropriate to group the employees of the various divisions or sys-
tems into one bargaining unit. Among other things, the Employer
points out that it has contracted to sell the properties in the Shelby
and Havre divisions on some date between August 31,1954, and July 1,
1955, contingent on approval by the Federal Power Commission. In
addition, the Employer calls attention to the fact that the Petitioner
110 NLRB No. 174.
MONTANA-DAKOTA UTILITIES CO. 1057
has made no showing of interest among the Billings division employ-
ees, and that the Crookston division employs only 7 or 8 persons in
a limited sort of operation." The Employer does not, however, ques-
tion the representative status of the Petitioner in the contractual units,
or any segment thereof.
We agree with the Employer's contention that the Board should not
find a companywide unit of operating employees appropriate, in the
absence of self-determination elections among the Billings and Crooks-
ton employees, respectively. These employees have not been repre-
sented in the past. Moreover, we perceive no reason for ordering an
election in an enlarged voting group or unit whereby they might be
engulfed by the votes of employees in contractual unit presently rep-
resented by the Petitioner.2 In sum, therefore, we view this petition
as seeking to assimilate into the existing employee grouping repre-
sented by the Petitioner, those employees-heretofore unrepresented-
attached to the Billings and Crookston divisions. Moreover, we find
that the Employer does not, as we interpret the testimony in the record,
question the representative status of the Petitioner in the contractual
units, albeit it does object to the proposal of the Petitioner that a com-
panywide unit be found appropriate. In these circumstances, we find
no question of representation to exist among employees in the areas
of the Employer's operations that were at the time of the hearing,
covered by contract with the Petitioner. We are persuaded, in the
light of the history of bargaining, that the employees in these areas
may constitute a unit appropriate for the purposes of collective bar-
gaining, and we so find. But because we find no question of represen-
tation to exist in that unit (or any part thereof) we deem it unneces-
sary to order an election therein.3 Accordingly, the petition is hereby
dismissed as to that portion of the unit sought.
While we have found that the employees in the 15 divisions presently
represented pursuant to contract are an appropriate unit, we also
find that this unit, as augmented by the addition of the employees
in the Billings or Crookston divisions, or both, would be at least equally
appropriate.4 Accordingly, we shall direct a self-determination elec-
tion 5 among the employees in the Crookston division, wherein the
1 The Petitioner has made an adequate showing of representation among the employees
in the Crookston division.
2 See Great Lakes Pipe Line Company, 92 NLRB 583, 585
3 See Southern California Edison Company , 107 NLRB 951.
• The Board has frequently held that systemwide units are , under proper circumstances,
the most appropriate for employees of public utilities . See Elizabethtown Consolidated
Gas Company, 93 NLRB 1270 , 1273; Public Service and Gas Company of New Jersey, 81
NLRB 1191 , 1194; California-Pacific Utilities Company, 93 NLRB 747, 749 ; Southwestern
Electric Service Company, 89 NLRB 114,117 -
5 The policy favoring systemwide units for public utilities has not precluded the Board
from applying the self-determination principle with respect to unrepresented groups
sought to be added to the existing contract unit. See Western Light & Telephone Com-
pany, Inc , 109 NLRB 630; Southern California Edison Company, footnote 3, supra.
338207-55-vol. 110-68
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petitioner has made an adequate showing of interest, to determine
whether they wish to be represented by the Petitioner. If they so
decide, they and the employees in the remaining operating divisions
(other than Billings) will constitute an appropriate unit. We do not
direct a similar self-determination election among the Billings divi-
sion employees because the Petitioner has made no showing of interest
among them .6 The petition, therefore, insofar as it relates to these
employees, is hereby dismissed, without prejudice to a new petition
(upon a proper showing of interest) seeking to add them to the then
existing unit.
We regret that it is "incomprehensible" to Member Murdock, and
presumably also to Member Rodgers, that we do not on this record
"order an election among the bulk of the Employer's employees."
To do so seems to us to be an altogether unnecessary act, entailing
considerable expenditure of public funds in conducting an election
among the Employer's farflung divisions, especially if we are right
in finding that the Employer does not in fact question the Petitioner's
status as exclusive representative in the 15 divisions heretofore covered
by contract. Nor does the record, in our opinion, establish that the
Petitioner is seeking certification in a 15-division unit. If we are
wrong in this premise, a new petition can be promptly filed, and
doubtless the Employer would consent to an election without the
necessity of a hearing and Board decision in view of our present resolu-
tion of the unit issues, should the Employer in fact doubt the Peti-
tioner's majority. We think, therefore, that our colleagues in the
minority are in truth making much ado about nothing.
In conformity with our findings above, we shall direct an election
among the production, maintenance, and distribution employees of
the Employer at its Crookston, Minnesota, division, including meter
readers, warehousemen, and plant janitors, but excluding office and
plant clerical employees, technical employees, seasonal and temporary
employees, full-time retail appliance salesmen, office janitors, guards,
watchmen, and supervisors as defined in the Act.
[Text of Direction of Election omitted from publication.]
MEMBER MURDOCK, dissenting :
The majority's position in refusing to order an election among the
bulk of the Employer's employees, thus depriving the Petitioner of
the benefits of probable certification, is incomprehensible to me in the
light of long-established, tried and proven Board precedent to the
contrary. I cannot agree with my colleagues.
The record in this proceeding could not show more clearly that the
Petitioner seeks certification either in a companywide unit (17 di-
9 Illinois Csties Water Company, 87 NLRB 109, 112.
MONTANA-DAKOTA UTILITIES CO. 1059
visions), such as this Board customarily finds appropriate in the util-
ity industry, or in a consolidated unit of 15 divisions whose employees
have been represented under 5 separate contracts. Nor could the rec-
ord be more clear that the Employer is not in agreement on either of
those unit alternatives, hence that a conflict concerning the appropri-
ate unit exists. Yet my colleagues shut their eyes to this and unreal-
istically treat the petition as merely seeking "to assimilate into the ex-
isting employee grouping represented by the Petitioner" the employ-
ees of the two unrepresented divisions. They direct an election in
only one small division of the Employer's multistate operation, albeit
they would go so far as to grant one in both unrepresented divisions
were there evidence of showing in the other. Having thus misinter-
preted the Petitioner's purpose in coming to the Board at this time,
they find that the employees of the remaining 15 divisions "may con-
stitute a unit appropriate for the purposes of collective bargaining,"
but hold that no election as to them is necessary because no question
concerning their representation exists. Strangely enough they cite
as authority for this fallacious conclusion the case of Southern Cali-
fornia Edison Company, 107 NLRB 951, where the petitioner sought
merely to add employees to a unit in which it had already been certi-
fied by this Board. Here there has neither been certification nor rec-
ognition by the Employer of the appropriateness of the 15 divisions
as a single unit. The majority concludes by suggesting that if they
have misinterpreted the Petitioner's desires, it may file a new petition
in which case the Employer will probably consent to an election and
solve the whole problem. As the Employer has flatly refused to bar-
gain on a single-contract basis, this is truly speculative. If, as seems
more likely, the Employer should insist upon continuing its policy
of bargaining on a piecemeal basis, they do not say under which con-
tract Crookston employees shall be bargained for. Or will Crookston
employees merely constitute an addition to the unit which "may" be
appropriate if the Employer sees fit to bargain on that basis? I sub-
mit that there is no authority to support the majority's action in dis-
missing the instant petition as to the bulk of the employees concerned.
To say that no question concerning representation exists as to a
15-division or a companywide unit is pure casuistry. The Petitioner
sought to bargain for all employees on a one-contract basis and was
rejected by the Employer on that basis. It filed its petition on that
basis. Conflicting positions concerning the appropriateness of a unit
have, from the very inception of this Board, been held to raise a ques-
tion concerning representation. See Los Angeles Broadcasting Com-
pany, Inc., 4 NLRB 443,445; Phelps Dodge Corporation, 6 NLRB 624,
628. The present Board appears to have no quarrel with that funda-
mental concept for it has obviously endorsed it in such cases as Cali-
fornia Inland Broadcasting Co., 106 NLRB 1259, and in its supple-
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mental decision in The Zia Company, 109 NLRB 312. In fact, in both
those recent cases, by specifically relying upon General Box Company,
82 NLRB 678, the present Board has acknowledged that the sole pur-
pose of a representation proceeding. may properly be certification, and
that recognition of a petitioner in the very unit sought would not
necessarily preclude the Board's finding a question concerning rep-
resentation to exist. Why then, in this very run-of-the-mill case, with
a clear-cut conflict as to unit, does the majority suddenly conclude that
it should airily make a "may be appropriate" unit pronouncement, and
decline to afford the Petitioner an opportunity to have that unit certi-
fied? The merits of certification were considered at length in the
General Box decision, which my present colleagues have since ap-
proved. Although I could not fully agree with that decision when
it issued-for other reasons-I did not propose to deny the petitioner
there a certification, and I am fully aware-as my colleagues must
surely be-of the many specific advantages the statute gives to certi-
fied unions. For the majority to determine here that this Petitioner
need not have the opportunity of certification as to those employees
it already represents is plainly without persuasive reasoning or au-
thority. An election in a consolidated unit of employees historically
represented in separate groups, as Member Rodgers and I urge, is not
only a matter of basic right to the Petitioner, but one of equal treat-
ment before this Board. My colleagues have gone far indeed if they
are ready to dismiss the matter as "much ado about nothing."
Entirely apart from the problem created by what I consider the
majority's unwarranted disposition of this case, I would, of course,
find a companywide unit appropriate because this is a utility and the
Petitioner is prepared to represent such a unit. But I would direct
an election in the overall unit, just as the Board did in The Laclede
Gas Light Company, 77 NLRB 354, and in California-Pacific
Utilities Company, 93 NLRB 747, and as the present Board very re-
cently appeared disposed to do in Southwestern Bell Telephone Com-
pany, 108 NLRB 1041, where we dismissed a petition by a second
union for the employees of a newly added geographical division of the
Employer's operation. If there is substance at all to the Board's rule
that the most appropriate unit for utilities is a comprehensive one,
whether systemwide or systemwide departmental, I see no need to bal-
lot separately and require a separate showing of interest for small
groups of previously unrepresented employees. An adequate showing
of interest in the group as a whole should suffice to set in motion an
election in the comprehensive unit.
MEMBER RODGERS, dissenting in part and concurring in part :
For the reasons stated by Member Murdock in his separate dissent,
I am unable to agree with the majority's refusal to find a company-
THE ITEM COMPANY 1061
wide unit appropriate and to direct an election therein. I agree, how-
ever, with the majority that in cases involving public utilities, as here,
the Board should apply the self-determination principle with respect
to unrepresented groups sought to be added to the existing unit. I
would, therefore, direct an election in the overall unit but would grant
a self-determination election among the employees in the Crookston
division.
THE ITEM COMPANY and NEW ORLEANS NEWSPAPER GUILD, LOCAL 170,
CIO, PETITIONER. Case No. 15-RC-1096. November 26, 1954
,Supplemental Decision and Certification of Results of Election
On June 29, 1954, pursuant to a Decision, Direction of Election and
Order 1 issued by the Board on June 9, 1954, an election by secret
ballot was conducted in Case No. 15-RC-1096, under the direction
and supervision of the Regional Director for the Fifteenth Region
(New Orleans, Louisiana). Upon the conclusion of the election a
tally of ballots was furnished the parties in accordance with the Rules
and Regulations of the Board.
The tally of ballots shows that there were approximately 15 eligible
voters, and that 15 ballots were cast, of which 9 were for the Petitioner,
and 6 were for Building Service Employees International Union 275,
AFL, the Intervenor herein. On July 2, 1954, the Employer filed
timely objections to the election.
The objections alleged that certain explanatory information con-
tained in the official notices of election had the effect of enhancing the
position of the Petitioner to the detriment of the Intervenor. The
Regional Director investigated the objections and on July 28, 1954,
issued and served upon the parties his report on objections in which he
found that the explanatory paragraphs in the official copies of election,
either alone or together, could not be interpreted as reflections upon
the relative merits of the contending labor organizations, their unit
contentions, or other issues. He concluded that the Employer's objec-
tions do not raise substantial or material issues with respect to the
election and he recommended to the Board that the said objections
be overruled and that an appropriate certification issue. We adopt
the recommendations of the Regional Director as contained in his
report, and find that the objections do not raise substantial or mate-
rial issues with respect to the election. The objections are hereby
overruled.
As the employees in the voting group consisting of all maids, por-
ters, elevator operators, utility metal men, and handy men employed
1 108 NLRB 1261.
110 NLRB No. 173.