Virginia Electric and Power Co.

National Labor Relations Board - Board Decisions

Mar 4, 1946

66 N.L.R.B. 271 (N.L.R.B. 1946)

In the Matter of VIRGINIA ELECTRIC AND PowER COMPANY and
INTERNATIONAL BROTHERHOOD or LOCAL UNIONS ON V. E. P.
PROPERTIES , A. F. L.
In the Matter of VIRGINIA ELECTRIC AND PowER COMPANY and
INTERNATIONAL BROTHERHOOD OF LOCAL UNIONS ON V. E. P.
PROPERTIES , A. F. L. AND UTILITY WORKERS UNION
Cases Nos. 5-R-2000 and 5-RE-10, respectively .Decided
March 4, 1946
Hunton,'Williams, Anderson, Gay & Moore, by Messrs. T. Justin
Moore and Patrick A. Gibson, of Richmond, Va., and Mr. H. M.
Anderson, of Alexandria, Va., for the Company.
Messrs. Herbert S. Thatcher, Joseph A. Padway, and James R.
Reilly, of Washington, D. C., for the I. B. E. W.
Messrs. Charles L. Gilkesen, Hunter H. Barbee, Alfred D. Lynch,
and Kermit V. Rooke, of Richmond, Va., and Mr. Henry S. Franck,
of Norfolk, Va., for the U. W. U.
Miss Katharine Loomis, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon separate petitions duly filed by International Brotherhood
of Local Unions on V. E. P. Properties, A. F. L.,1 herein called the
I. B. E. W., and by Virginia Electric and Power Company, Rich-
mond, Virginia, herein sometimes called the Company, alleging that
questions affecting commerce had arisen concerning the representa-
tion of employees of the Company, the National Labor Relations
Board consolidated the cases and provided for an appropriate hear-
ing upon due notice before Sidney J. Barban, Trial Examiner. The
hearing was held at Richmond, Virginia, on October 2, 3, 4, and 5,
1945. The Company, the I. B. E. W., and Utility Workers Union,
1 The name of this petitioner appears as amended at the hearing.
63 N. L. R. B., No. 30.
271
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein called the U. W. U., appeared and participated . All parties
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 . All parties were afforded
opportunity to file briefs with the Board.
Oral argument in which all the parties participated was held
before the Board at Washington, D. C., on January 31 , 1946. At
the argument , the U. W. U. requested that the question regarding
the representation of certain disputed classifications of employees,2
the sole issue in which all the parties were concerned , be severed from
the question with respect to the representation of certain categories
of foremen , in issue only between the I. B. E. W. and the Company.
Both the I. B. E. W. and the Company concurred in the request and
it is hereby granted. We shall, therefore , postpone consideration of
the issue concerning the foremen until a later date, at which time
we shall issue a Supplemental Decision in this proceeding.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. TIIE BUSINESS OF THE COMPANY
Virginia Electric and Power Company, a Virginia corporation,
is engaged in the business of generating, distributing, and selling
electric energy in parts of the States of Virginia, North Carolina,
and 'Nest Virginia. Some of the Company's present facilities were
formerly those of the Virginia Public Service Company which
merged with the Company on May 26, 1944. The Company's opera-
tions, which serve an area of approximately 29,000 square miles,
constitute an integrated system. For the purposes of producing and
distributing electric energy the Company operates seven steam gen-
erating stations and various hydroelectric generating stations. In
addition, the Company manufactures, distributes, and sells gas in
the Virginia area. In 1941, the Company's sales of electricity ex-
ceeded $16,900,000. The Company estimated that during 1941, as
a result of its operations, approximately 283,000 kilowatt hours of
electricity were transmitted from Virginia to North Carolina, and
approximately 4,000,000 kilowatt hours were transmitted from North
Carolina to Virginia. During the same year, the Company pur-
chased coal for its electric operations, 91.3 percent of which, in ton-
nage, originated outside Virginia. During the same period the
Company's sales of gas exceeded $1,171,000. For its gas operations
2 These are plant clerks, clerks, line clerks , system operators , load dispatchers , electrical
service men dispatchers, collectors, collectors, jr , meter readers and collectors , and meter
readers.
VIRGINIA ELECTRIC AND POWER COMPANY 273
in 1941, the Company purchased approximately 4,256,000 gallons of
oil, all of which originated outside Virginia; coke estimated at
approximately 6,000 tons which originated in Virginia, but was
shipped through a part of West Virginia en route to its destination
in Virginia; and coal estimated at 13,755 tons, all of which origi-
nated outside Virginia. Since 1941, the Company's business has
increased in volume. As noted above its operations expanded con-
siderably in 1944 due to the merger with Virginia Public Service
Company, thereby encompassing additional territory in Virginia and
new territory in West Virginia.
The Company admits, for purposes of this proceeding, that it is
engaged in commerce within the meaning of the National Labor
Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Local Unions on V. E. P. Proper-
ties is a labor organization affiliated with the American Federation
of Labor, admitting to membership employees of the Company.
Utility Workers Union , unaffiliated , is a labor organization admit-
ting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
As a result of a Board decision 3 issued approximately 1 year
before the merger of the Virginia Public Service Company with the
Virginia Electric and Power Company,4 the U. W. U. became the
bargaining representative of V. E. P.'s office and clerical employees
and the I. B. E. W. was designated as the representative of V. E. P.'s
production and maintenance employees. The U. W. U. and the
I. B. E. W. have represented the employees in the respective units
since that time.5 The I. B. E. W. has also, since 1938, been the con-
9 49 N. L. R. B 1095.
• whenever it is necessary to distinguish between the two companies as they existed
before the merger, the Virginia Electric and Power Company is referred to as V. E. P.
and the former Virginia Public Service Company as V. P. S.
6 Both the U. W. U and the I B. E W were certified on July 8, 1943. On January
13, 1944, the U. W. U, and the Company entered into an agreement covering office and
clerical employees. The initial period of the contract expired on January 1, 1945. On
November 16, 1944, the U. W U requested that the 1944 agreement be automatically
renewed provided that the Company would enter into negotiations for amendments in
the spring. The Company agreed Although the parties met in the early summer of
1945 to negotiate changes and arrived at a contract containing material changes, the
Company refused to sign the document. The I. B E W. and the Company entered into
an agreement covering V. E. P.'s production and maintenance employees on November 8,
1943. This agreement provided that it should remain in effect until October 31, 1944,
and contained a 60-day automatic renewal clause. Thereafter, the parties entered into
two supplemental agreements, dated, respectively, September 12, 1944, and August 29,
1945. The latter agreement provided that the original contract should remain in effect
until a decision was rendered by the Board in the present proceeding and for 30 days
thereafter, but in no event later than December 31, 1945, unless prior to that time the
parties had entered into a new collective bargaining agreement . No new agreement has
been entered into by the parties.
686572--46-19
274 DECISIONS OF NATrONAL LABOR RELATIONS BOARD
tractual bargaining representative of the production and mainte-
nance employees in V. P. S. It is significant in this connection that
under the terms of the contract between the I. B. E. W. and V. P. S.,
employees in the disputed classifications in this case,6 have, at least
since 1944, been included in the production and maintenance unit,
whereas similar employee classifications have been bargained for
contemporaneously therewith as part of the office and clerical unit
at V. E. P., pursuant to the above-mentioned Board determination'
and certification. After the merger, the I. B. E. W. requested the
Company to extend recognition to it on a system-wide basis for all
production and maintenance employees, and urged that the scope of
the unit be coextensive with that presently represented by it in
V. P. S. The Company thereupon refused to recognize the
I. B. E. W. as the exclusive bargaining representative of the disputed
classifications and, in addition, in view of the I. B. E. W.'s claim,
refused to renew its contract with the U. W. U. On June 13, 1945,
the I. B. E. W. filed its petition seeking to represent, in addition to
the foremen, the employees in question here. Shortly thereafter, the
Company filed its petition.
The U. W. U. does not claim that the January 13, 1944, contract
is a bar to this proceeding. The Company, although it did not
advance either the U. W. U. contract or the I. B. E. W. contracts
as a bar, reserved all rights which might accrue to it under these
contracts. Clearly the U. W. U.'s contract of January 13, 1944, is
not a bar since the parties, by negotiating for a new contract, indicated
their desire to terminate the old agreements The I. B. E. W.'s
supplemental agreements of August 29, 1945, specifically provided
that in no event should the contractual relationship between the
parties extend beyond December 31, 1945. Accordingly, no contract
presently exists between the I. B. E. W. and the Company which
may bar a present determination of representatives. Moreover, it
is clear that, irrespective of any specific waiver by the Company,
the filing of the petition by the Company was entirely inconsistent
with an intent to advance these contracts as a bar to this proceeding.,,
Accordingly, we find that no bar exists to a present determination
of representatives.
A statement of a Board agent, introduced into evidence at the
6 The I . B. E. W. has represented this unit , without Board certification , under successive
bargaining contracts. The latest comprehensive contract between the Company and the
I. B. E. W . in regard to this unit was signed on December 2, 1944 . This agreement
provided that it remain In effect until March 31, 1945 , and contained a 90-day automatic
renewal clause. On August 29, 1945, a supplemental agreement was entered into covering
this unit which was substantially similar to that of the same date covering the V. E. P.
production and maintenance unit.
9 !The Board specifically included collectors and meter readers in Its determination.
8 See Matter of Wisconsin Telephone Company, 65 N. L. It. B. 368.
9 Cf. Matter of Wisconsin Public Service Corporation, 64 N. L . R B. 15.
VIRGINIA ELECTRIC AND POWER COMPANY 275
hearing , indicates that the I. B. E. W. and the U. W. U. each
represents a substantial number of employees in the disputed
classifications.lo
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.ll
IV. THE APPROPRIATE UNIT; THE DETERMINATION OP REPRESENTATIVES
At the hearing, the U. W. U., in seeking the inclusion of the dis-
puted classifications of employees in a system-wide office and clerical
unit, relied upon the Board's prior decision and the past history of
collective bargaining in V. E. P., whereas, the I. B. E. W., in seeking
their inclusion in a system-wide production and maintenance unit,12
relied upon the past history of collective bargaining in V. P. S. At
the oral argument, the I. B. E. W. and the U. W. U. agreed that the
Board's determination of the unit appropriate for these employees
might properly rest, in part, upon the desires of the employees con-
cerned. The Company, however, adhered to its original position
that the only proper grouping for these employees is with the office
and clerical unit.
The duties of the employees in the disputed classifications are
described below:
Plant clerks, clerks, and line clerks: The work performed by
these categories of employees is exclusively clerical. However, they
work under the direction of production supervisors and their work
is related to the production process. The record indicates that pro-
motions among these employees have been both into office clerical
positions and into plant operation positions.
System operators and load dispatchers: These employees, while
seated at desks at various power stations, direct the operation of the
Company's transmission system consisting of high tension wires.
Their work consists in the main of distributing the load of electric
20 The Board agent reported that the I. B. E. W. submitted 37 cards bearing the names
of 37 employees listed on the Company 's July 31, 1945, pay roll ; and that the U. W. U.
submitted 39 cards bearing the names of 39 employees listed on the same pay roll.
There are approximately 138 employees among the disputed classifications.
Both the I. B. E. W. and the U. W. U. appear to rely also upon their respective
contracts in support of their claims to represent the disputed classifications. The U. W. U.
relies, in addition , on the prior Board certification.
1.i The parties appear to be in agreement that, except for the disputed classifications
and the foremen , no question concerning representation exists with respect to either the
production and maintenance employees or the office and clerical employees.
v At the hearing, in addition to the classifications mentioned in footnote 2, supra, the
I. B. E. W. sought to include maids and janitors in the production and maintenance unit.
These employees work in the general offices of the Company. In its brief, the I. B. 1. W.
states that because of this fact these employees might more properly belong in the office
and clerical unit . We find that the maids and janitors form part of the office and
clerical unit and shall exclude them from the voting group designated herein.
276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
0
energy around the system according to schedule, which set the power
each station is to supply as part of the load and the power that is
required from connecting companies. Part of their time is spent in
collecting and recording various operating data, including the amount
of electric energy obtained from other companies.
Electric service men dispatchers: This classification exists only
in the V. P. S. area. These employees receive trouble calls over
the telephone, group the calls into areas so that only one "trouble-
shooter" will be required for each area, and assign the "trouble-
shooters" to service these areas. They have, however, no supervision
over the "trouble-shooters." Their work is mainly clerical in that
they write up reports on the trouble calls.
Collectors, collectors, jr., meter readers and collectors, and meter
readers : The collectors are bill collectors who report to the account-
ing department each day, make their collections, and turn in the
money collected to the accounting department. They do no manual
work beyond what is necessary to disconnect service at the meter
box on occasion. In the V. P. S. area, collectors, as distinguished
from collectors, jr., formerly climbed poles and disconnected service,
but this is no longer true.
The meter readers, like the collectors, report to the accounting
department. They read customers' meters and report the readings
in books which are turned in to the accounting department and from
which customers' bills are prepared. They also carry sealing irons,
screw drivers, and pliers in order to reset certain appliances and
take seals off meters and replace them. Meter readers in the V. P. S.
area have done other work in addition to meter reading, but, at the
hearing, the Company stated that it planned to discontinue this
practice within 60 days. V. E. P. also has a classification of em-
ployee known as meter readers and collectors. As indicated by their
title, the employees in this category do both meter reading and
collecting.
In view of the divergent histories of collective bargaining in
V. E. P. and V. P. S. in the disputed classifications, and because these
employees comprise fringe groups whose interests are related both
to the production and process and to office clerical work, we are
of the opinion that these employees may properly form part of either
the production and maintenance unit or the office and clerical unit.
Accordingly, we shall afford the disputed employees an opportunity
to express their desires in the matter in a self-determination election.
In view of the absence of any question concerning representation
among the employees in the over-all production and maintenance
unit or the over-all office and clerical unit, we shall direct an election
solely among the disputed categories. In the event that the majority
VIRGINIA ELECTRIC AND POWER COMPANY 277
of these employees select the U. W. U. as their bargaining representa-
tive, they will be deemed to have indicated their desire to be bargained
for on a system-wide basis together with employees in the office and
clerical unit; in the event that a majority select the I. B. E. W.,
they will be deemed to have indicated their desire to be bargained
for on a system-wide basis together with employees in the production
and maintenance unit.
The parties appear to be in agreement that pension workers, pen-
sioners, part-time employees, and temporary employees who have
been employed for less than 90 days should be excluded, and that
special temporary employees and temporary employees who have
been employed for more than 90 days be included.13
We shall, therefore, direct that the question concerning representa-
tion which has arisen be resolved by an election by secret ballot among
the employees in the voting group set forth below, who were employed
during the pay-roll period immediately preceding the date of the
Direction of Election :
All plant clerks, clerks, line clerks, system operators, load dis-
patchers, electric service men dispatchers, collectors, collectors, jr.,
meter readers and collectors, and meter readers, including special
temporary employees and temporary employees who have been em-
ployed 90 days or more, but excluding janitors and maids, pension
workers, pensioners, part-time employees, and temporary employees
who have been employed for less than 90 days, and all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively
recommend such action.
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 Re-
lations 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 representa-
tives for the purposes of collective bargaining with Virginia Electric
and Power Company, Richmond, Virginia, 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 Fifth Region,
acting in this matter as agent for the National Labor Relations Board,
za These exclusions and inclusions were directed by the Board in the prior case. The
record in this proceeding indicates that these categories of employees still exist and no
question was raised at the hearing with respect to them.
278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and subject to Article III, Sections 10 and 11, of said Rules and
Regulations, among employees in the voting group described 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 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 International Brotherhood of Local Unions on V. E. P. Properties,
A. F. L., or by Utility Workers Union, for the purposes of collective
bargaining , or by neither.