Rockland Light & Power Co.

National Labor Relations Board - Board Decisions

Sep 19, 1941

35 N.L.R.B. 542 (N.L.R.B. 1941)

In the Matter of ROCKLAND LIGHT & POWER COMPANY and UNITED.
ELECTRICAL WORKERS ORGANIZATION
Case No. R-2816.-Decided September 19, 1941
Jurisdiction : electric and gas utility industry.
Investigation and Certification of Representatives : existence of question: re-
fusal by Company to negotiate with union until after determination of appro-
priate unit by Board ; dispute as to whether system-wide or divisional-
departmental unit appropriate ; eligibility to be determined on basis of
employment between two pay-roll dates ; election necessary.
Unit Appropriate for Collective Bargaining : all employees in electric depart-
ment in one of Company's two divisions, engaged in production, distribution,
construction, maintenance and service, including meter department, electric
and gas meter indexers and garagemen, but excluding officers, supervisory,
clerical, and confidential employees.
Cullen & Dykman by Mr. Harry G. Hill, of Brooklyn, N. Y., for
the Company.
Mr. Walter P. Back, of Hackensack, N. J., for the Union.
'Mr. Armin Uhler, of,counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On June 6, 1941, United Electrical Workers Organization, herein
called the Union, filed with the Regional Director for the Second
Region (New York City) a petition alleging that a question affecting
commerce had arisen concerning the representation of employees of
Rockland Light & Power Company, Nyack, New York, herein called
the Company, and requesting an investigation and certification of
reprdsentatives pursuant to Section 9 (c) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. On July 21, 1941, the
National Labor Relations Board, herein called the Board, acting
pursuant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice.
35 N L. R. B., No. 121.
542
ROCKLAND LIGHT & POWER COMPANY 543
On July 22, 1941, the Regional Director issued a notice of hearing,
copies of which were duly served upon the Company and the Union.
Pursuant to notice, a hearing was held on July 28, 1941, at New York
City before Christopher W. Hoey, the Trial Examiner duly desig-
nated by the Chief Trial Examiner. The Company. and the Union
were represented by counsel and participated in the hearing. Dur-
ing the course of the hearing, counsel for the Union made several
motions to amend the petition in regard to the unit alleged to be appro-
priate.' The Trial Examiner granted the motions. Full opportu-
nity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties.
During the course of the hearing, the Trial Examiner made several
rulings on other motions and on objections to the admission of evi-
dence. The Board-has reviewed the rulings of the Trial Examiner
and finds that no prejudicial errors were committed. The rulings are
hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Rockland Light & Power Company is a New York corporation
with its principal office at Nyack, New York. It is a public utility
engaged in the generation, purchase, sale, and distribution of elec-
tricity and natural gas. The Company operates a steam plant for
the generation of electric power at Hillburn, New York, and four
hydro-generating stations, two of which are located at Lumberland
and two at Forestburg, New York. The Company also owns three
plants for the manufacture of gas which are located at Nyack,
Middletown, and Port Jervis, New York. The Company also op-
erates 'a system of electric lines and gas mains for the transmission
and delivery of. electricity and gas to customers in the States of New
York and New Jersey, and the Commonwealth of Pennsylvania.2
Branch offices are maintained at West Nyack, Pearl River, Suffern,
Spring Valley, Haverstraw, PO°rt Jervis, and Wurtsboro, New York,
at Ramsey and Closter, New Jersey, and at Milford, Pennsylvania.
Stores and service buildings are maintained at West Nyack, Hill-
burn, Middletown, and Port Jervis, New York.
The principal raw materials purchased by the Company for use
in its business are coal, coke, gas oil, lubricating oil, and natural
gas. It also purchases wire, poles, cross arms, and other electrical
I See Section V, infra.
2 The Company furnishes electric power to approximately 28,000 customers and gas to
approximately 2,600 customers.
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
transmission and distribution supplies and equipment, and gas pipe
and fittings for its gas transmission and distribution system. During
the 6-month period preceding the hearing, the Company, purchased
from outside the State of New York approximately 50 carloads of
materials. This amounted to approximately 90-per cent of all mate-
rials purchased during that period. It purchased 1,899,946 therms
of natural gas in New York, Pennsylvania, and' West Virginia, and
11,403,250 kilowatt hours of electricity in_ New Jersey. During the
same period the Company delivered to customers outside the State
of New York, 11,496,907 kilowatt hours of electricity, and 30,568
therms of natural gas, or approximately 24 per cent of the total
amount of electricity and gas sold by the Company. The Company
employs approximately 500 employees in its electrical and gas
departments.
II. THE ORGANIZATION INVOLVED
United Electrical Workers Organization is an independent labor
organization admitting to membership employees of the Company.
H. THE QUESTION CONCERNING REPRESENTATION
On April 28, 1941, the Union communicated to the Company its
claim that it represented a majority of the employees in the unit
alleged by it to be-appropriate, and requested the Company to ar-
range it conference for the purpose of collectively bargaining with it.
Several conferences took place between representatives of the Com-
pany and the Union. However, thei parties were unable to reach
an agreement concerning the appropriate unit and the Company
thereupon declined to bargain further with the Union until the
appropriate unit had been determined by the Board.
A statement of the Regional Director introduced in evidence dis-
closes that the Union represents a substantial number of the em-
ployees of the Company in the unit alleged by it to be appropriate.'
We find that a question has arisen concerning the representation
of employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
-COMMERCE,
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I, above, has a close, intimate , and substantial
3 The evidence submitted by the Union in support of its representation claims consists of
94 application for membership cards, 93 of which bear genuine signatures of persons whose
names appear on the Company' s pay roll of June 16 , 1941, showipg a total of 537 employees.
There are approximately 115 employees in the unit alleged appropriate by the Union
ROCKLAND LIGHT & POWER COMPANY 545
relation to trade, traffic, and commerce among the several States
and tends to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
The Union contends that the appropriate unit should be confined
to the Company's Eastern Division 4 and should include only em-
ployees of the Company engaged in electrical operations. The em-
ployees intended to be included in this unit are those engaged in
production; distribution, construction, maintenance, and service ac-
tivities, including employees in the meter department and all uni-
formed indexers reading both electrical and gas meters, and also
including garagemen, but excluding officers, foremen and higher
supervisory employees, and clerical and confidential employees.5
Sales personnel is to be excluded together with all other clerical
employees. The Company, on the other hand, requests that all em-
ployees in both the Eastern and Western Divisions, whether engaged
in electrical or gas work, should be included in a single system-wide
unit, excluding only confidential and supervisory personnel but not
clerical employees. As an alternative the Company suggests that
the unit proposed by it be confined to non-supervisory maintenance
and operating employees in the entire system, excluding all clerical
employees.6
The record discloses that although the Company operates in two
-geographically separated localities,' its business is substantially con-
ducted as an integrated system. Upon its incorporation in 1926 the
Company acquired and since then it has operated all properties serv-
ing these localities, known as its Eastern and Western Divisions.
Two of the former operating companies have been maintained solely
for billing purposes." The Company's generating plants, wherever lo-
cated, serve the entire system, and the Company purchases electric
4 Comprising the steam generating plant at Hillburn and transmission and distribution
facilities and branch offices serving the towns of Nyack, West Nyack, Hillburn, Pearl River,
Suffern, Spring Valley, and Haverstraw , New York, and Ramsey and Closter, New Jersey.
See Section I, supra
5 Through successive motions which the Trial Examiner granted at the hearing the Union
amended its petition so as to limit the desired unit to electrical employees , to include in the
unit meter indexers , and to add the name of the town of Pearl River. The unit as finally
contended for would embrace approximately 115 employees.
6 The units alternatively deemed appropriate by the Company would contain approxi-
mately 400 or 290 employees, respectively.
' The two areas served by the Company are about 30 miles apart and are intersected by
another public utility not affiliated with the Company. Two tie-in lines connect the two
areas.
8 Under present conditions , the Company 's customers in the State of New York are billed
in the name of Rockland Light & Power Company, customers in New Jersey in the name of
Rockland Electric Company, and customers in Pennsylvania in the name of Pike County
Light & Power Company.
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
power and gas from other producers for delivery to customers in
both divisions. All production and service activities are entrusted to
a general manager and the operation of both electrical and gas prop-
erties is subject to the supervision of one operating manager for
the Company's entire system. Of the several superintendents who
are directly responsible to the operating manager, some are in charge
of operations in both the Eastern and Western Divisions, while
others are concerned only with one of the two divisions. Each di-
vision has separate non-supervisory employees who are interchanged
only on infrequent occasions. Within each division these employees
are divided between the respective electric and gas departments,
except meter indexers, who read both electric and gas meters. The
Company maintains its gas manufacturing plants for periods of
emergency only and it has a comparatively small number of em-
ployees for the maintenance and construction of mains through which
natural gas is delivered to customers.9
Under these circumstances, there would appear to be merit to the
Company's contention that all its employees in the Eastern and
Western Divisions constitute an appropriate bargaining unit. How-
ever, the Union, the only labor organization which has attempted to
organize the Company's employees, so far has limited its activities
to electrical employees in the Eastern Division. We have repeatedly
held that employees should not be denied the benefits of the Act
because organization has not yet proceeded throughout the entire
enterprise of an employer. We, therefore, find that at the present
time a bargaining unit limited to the electric department of the Com-
pany's Eastern Division is appropriate.10 Our finding herein as to
unit, however, is no bar to a later determination at another stage of
self-organization among the Company's employees, consistent with a
change in the status of such self-organization 11
The Union desires the exclusion of all clerical employees whereas
the Company would prefer their inclusion in the appropriate unit.
9 According to testimony adduced at the hearing , the numbers of non-supervisory gas-
department employees in the Eastern and Western Divisions are 6 and 13 , respectively
10 Matter of The Texas Company and Oil'Workers International Union Local #280, 11
N L. R B 925; Matter of Continental Oil Company and Oil Workers International Union,
12 N L . R B 789, at 815-816 ; Matter of Burroughs Adding Machine Company and Boston
Lodge No . 264, International Association of Machinists, American Federation of Labor,
14 N L. R B 829 ; Matter of West Texas Utilities Company and International Brotherhood
of Electrical Workers, 22 N L R B 522 ; Matter of Montgomery Ward & Co and United
Mail Order, Warehouse and Retail Employees Union, Local 20, affiliated with the C I. O ,
25 N L R B. 318; Matter of Crane Company and Shopping, Receiving Clerks, and Assistants
Union, Local 21618, affiliated with the American Federation of Labor, 28 N L R B 756
"Matter of The Western Union Telegraph Company and American Federation of Labor,
Federal Union No 22460, 30 N L R. B. 679.
ROCKLAND LIGHT & POWER COMPANY 547
In accordance with our usual practice, we shall exclude, all clerical
employees.,,
We find that all employees in the electrical department of the Com-
pany's Eastern Division who are engaged in production, distribution,
construction, maintenance, and service activities, including employees
in the meter department and all uniformed, full-time meter indexers
reading electrical and gas meters, and garagemen , but excluding offi-
cers and supervisory, clerical, and confidential employees, constitute
a unit appropriate for the purposes of collective bargaining. We
further find that said unit will insure to employees of the Company
the full benefit of their right to self-organization and to collective
bargaining and will otherwise effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
We find that the question concerning representation which has
arisen can best be resolved by holding an election by secret ballot. At
the hearing the Company took the position and the Union agreed
that all employees, except temporary employees 13 continuously on
the Company's pay roll from the week ending May 31, 1941, to the
past pay-roll date immediately preceding the Direction of Election
herein, should be permitted to vote. Accordingly, we shall direct
that all employees, except temporary employees, continuously em-
ployed by the Company between the two pay-roll dates above re-
ferred to, shall be eligible to participate in the election, subject to
such limitations and additions as are set forth in our Direction.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Rockland Light '& Power Company,
Nyack, New York, within the meaning of Section 9 (c) and Section
2 (6) and (7) of the National Labor Relations Act.
2. All employees in the electrical department of the Company's
Eastern Division who are engaged in production, distribution, con-
struction, maintenance, and service activities, including employees in
the meter department and all uniformed, full-time meter indexers
12 Matter of Keystone Manufacturing Company and United Toy and Notelty Workers
Local Industrial Union No. 538 of the C. I. 0., 7 N L R. B 172 ; cf. Matter of Atlantic
Basin Iron Works and Industrial Union of Marine and Shipbuilding Workers of America,
Local No 13, 5 N L R B 402 This exclusion is intended to extend to all employees clas-
sified by the Company as office, commercial , and sales personnel.
ii The parties stipulated that an employee shall be deemed temporary if "hired with the
express understanding that he is hired for the duration of a specific job and at the end of
that specific job lie is no longer employed by the Company.
451270-42-vol 35-36
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reading electrical and gas meters, and garagemen, but excluding offi-
cers and supervisory, clerical, and confidential employees, constitute a
unit appropriate for the purposes of collective bargaining, within
the meaning of Section 9 (b) of the National Labor Relations Act.
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 8, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation authorized by the Board
to ascertain representatives for the purposes of collective bargaining
with Rockland Light & Power Company, Nyack, New York, an
election 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 Second
Region, acting in this matter as agent for the National Labor Rela-
tions Board and subject to Article III, Section 9, of said Rules and
Regulations, among all employees, except temporary employees, in the
electrical department of the Company's Eastern Division who are en-
gaged in production, distribution, construction, maintenance, and
service activities, including employees in the meter department and
all uniformed, full-time meter indexers reading electrical and gas
meters, and garagemen, who were continuously employed from the
week ending May 31, 1941, to the last pay-roll date immediately pre-
ceding the date of this Direction, including employees who did not
work during such pay-roll period because they were ill,' or on.vaca-
tion, or in the active military service or training of the United States,
or temporarily laid off, but excluding officers and supervisory, cleri-
cal, and confidential employees and employees who have since quit
or been discharged for cause, to determine whether or not they desire
to be represented by United Electrical Workers Organization for the
purposes of collective bargaining.