Public Service Electric and Gas Co.

In the Matter of PUBLIC SERVICE ELECTRIC AND GAS COMPANY and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. OF L.' Cases Nos. R-434.! and R-4945.-Decided October 30, 194k Jurisdiction : electric and gas utility industry Investigation and Certification of Representatives : existence of questions • re- fusal to accord petitioner recognition without an inspection of union's mem- bership cards; elections necessary Units Appropriate for Collective Bargaining : separate units confined to one of Company's generating stations, and one of Company's geographic divisions, found appropriate notwithstanding Company's request for a system-wide unit, in view of extent of employee organization. Mr. William H. Speer, Mr. George W. Grimm, Jr., and Mr. Joseph V. Suter, of Newark, N. J., for the Company. Ashe d Rifkin, by Mr. David I. Ashe, of New York City, for the Union. Miss Viola James, of counsel to the Board. DECISION AND DIRECTION OF ELECTIONS STATEMENT OF THE CASE Upon petitions duly filed by International Brotherhood of Electrical Workers, affiliated with American Federation of Labor, herein called the Union, alleging that questions affecting commerce had arisen con- cerning the representation of employees of Public Service and Gas Company, Newark, New Jersey, herein called the Company, the Na- tional Labor Relations Board provided for an appropriate hearing upon due notice before William T. Little, Trial Examiner. Said hearing was held at Newark, New Jersey, on September 30 and October 2,1942. The Company and the Union 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 Company moved to dismiss the petition on the ground that its business does not constitute commerce within the meaning of the National Labor Relations Act, The Trial Examiner reserved ruling on the motion for the Board. , His rulings made at the hearing are free from prejudicial error and are hereby affirmed. For the reasons 45 N. L. R. B., No. 37. 202 PUBLIC SERVICE ELECTRIC AND GAS COMPANY 203 indicated below, the_ motion of the Company to dismiss is hereby denied. On October. 14 and 15, 1942, respectively, the Company and the Union filed briefs which the Board has considered. Upon the entire record in the case, the Board makes the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Public Service Electric and Gas Company is a New Jersey corpora- tion engaged in the production and purchase, and distribution and sale of electricity and gas in the State of New Jersey. It is divided into an Electric Department and a Gas Department. During 8 months of the current year, the Company purchased for its Electric Department raw materials consisting of coal, fuel oil, water, chlorine, mercury, and lubricating oil, valued at $9,527,590, of which 98.8 per- cent was shipped from outside the State of New Jersey.' At the boundary lilies of the State of New Jersey, the transmission lines of the Company connect with lines of companies in adjoining States. During 1941, the Company delivered to such inter-connections 191,- 549,000 kilowatt hours and received 113,881,750 kilowatt hours. The Company, including the Hudson Division,2 furnishes electricity to the Holland, and Lincoln tunnels, interstate railroads, branches of the United States Post Office and other government buildings, Western Union, Postal Telegraph, New Jersey Bell Telephone, radio stations, and numerous companies whose products move in interstate com- merce. The Company serves over 3,000,000 persons, and, during 1941, its total operating revenues exceeded $100,000,000. The juris- diction of the Board over public utilities, such as the company herein, is well established.3 We find that the Company is engaged in com- merce within tha meaning of the Act. II. THE ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, affiliated with American Federation of Labor, is a labor organization admitting to membership employees of the Company. 1 Raw materials for the Kearny generating station, one of five in the electric generating department, amounted to $3,119,847, 97.8 percent of which was shipped from outside the State of New Jersey 2 The Hudson Division is one of seven geographical divisions covering territory serviced by the electric distribution system. 8 See Consolidated Edison Co. of New York v. N L. R. B., 305 U. S. 197 ; N. L. R. B. ,v. Pacific Gas & Electric Co., 118 F. (2d) 780; N. L. R. B. v. Western Massachusetts Elec- tric Co, 120 F. (2d) 455. 0 204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III. THE QUESTIONS CONCERNING REPRESENTATION At a conference on or about August 4, 1942, the Union requested recognition as the bargaining agent of the Company's employees at the Kearny generating station. The Company refused and still re^ fuses the request without an inspection of the Union's membership cards 4 A statement of the Regional Director, introduced into evidence it the hearing, indicates that the Union represents a substantial number of employees in the units hereinafter found to be appro- priate.-' The Company, in an objection to the introduction in evi- dence of the Regional Director's statement, contended that the statement is not legal evidence and that the Company should be permitted cross-examination based on the facts therein appearing. We have heretofore affirmed the ruling of the Trial Examiner over- ruling the, objection .13 We find that questions affecting commerce have arisen concerning the representation of employees of the Company, within the mean- ing of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNITS The Union seeks two units, one consisting of all the employees at the Kearny generating station, excluding supervisory employees and clerks ; and the other comprising all employees at the Hudson Divi- sion, including linemen, cable splicers, substation metermen, drivers, and mechanics, but excluding supervisory employees, clerks, and generating station employees.' The Company desires a system-wide unit, including all mechanical and clerical employees in the generat- ing and distribution departments and district offices, but excluding 'The Union thereafter filed petitions seeking to establish separate bargaining units among the employees of the Kearny generating station and the Hudson Division. " With respect to the employees at the Kearny generating station, the Regional Direc- tor's statement showed that the Union submitted 247 application cards, dated from June to August 1942, with 47 undated ; that all the cards bore apparently genuine original signatures ; that 237 cards bore the names of employees on the Company's pay roll of July 23, 1942, and that there are approximately 453 employees in the unit claimed appropriate by the Union As to the employees at the Hudson Division , the statement of the Regional Director showed that the Union submitted 119 application cards 'dated from June to August 1942 , with 36 undated ; that 118 cards bore the names of persons on the Company 's pay roll of August 13, 1942, which lists approximately 306 employees in the unit alleged appropriate by the Union. 0 There is no merit in this argument , as the Board recently explained in Matter of Atlas Powder Company Zapon Division and Local 12083, National Council of Gas, Coke and Chemical Workers, 43 N. L. It. B. 757. As to the Company ' s demand that it be permitted 'to inspect the Union's membership cards, we think that the issue as to the Union's majority status can best be resolved by an election by secret ballot, as hereinafter directed. 4 The Company's representative stated that there are no generating station employees in the Hudson Division PUBLIC SERVICE ELECTRIC AND GAS COMPANY 205 supervisory employees, engineers, professional employees, and tech- nical assistants. As stated above, the Company is divided into an Electric Depart- ment and a Gas Department; only the employees of the Electric Department are involved herein. The Electric Department employs approximately 5,535 persons and its operations are spread over 1,420 square miles. Its service is divided into 2 main functions-the gen- eration of electricity in the 5 generating stations," and the distribu- tion of electricity to the Company's customers through a distribution system spread over 7 geographic divisions.9 These functions are an integral process. From an organizational standpoint the Electric Department is subdivided into 5 departments : generating, distribu- tion, testing laboratory,10 electric engineering, and telephone. The Company insists that all these departments are closely allied and centrally supervised from the general office, and that acceptance of the Union's contentions would necessitate numerous bargaining contracts and otherwise work hardships on the Company. The Company also points to the fact that all policies relating to wages and conditions of employment are determined by the general office for the entire system, and that employees are frequently trans- ferred from distribution to generating, as well as from one division or station to another. On the other hand, the superintendents of the stations and divisions exercise considerable authority and control. The types of employees at the generating stations are the same, and they report for work to the station to which they are assigned. This is likewise true of the employees in the divisions. In comparison to the total number of the Company's employees, the percentage of transfers within the system is small, and these transfers are generally of a permanent nature. The Company has had no bargaining history with respect to its Electric Department, but does have bargaining contracts involving the employees of two separate gas plants in the Gas Department. The Gas Department has the same general hier- archy as the Electric Department.':, Witnesses for the Union testi- fied that the Union intends to organize the whole electric system, but that, due to the large number of employees and the wide territory 8 These are Kentny, whose employees the Union seeks to establish as a unit herein, and Essex, Marion, Burlington, and Perth Amboy. The Kearny station is over a mile from the Eessex and Marion stations 9 These divisions are Hudson, whose employees the Union seeks to establish as a unit herein, and Passaic, Bergen, Essex, Central, Southern diNision, Trenton area, and Southern division, Camden area The generating stations aie located in the area covered by the distribution divisions 10The employees of the testing laboratory department are employed in the fire gorier it- rug stations and at e under the ;upei N ision of the superintendent of the gorier acing station at which they tie located "The (;as Depat tment Iras two main functions-the mannfacfui e of gas in eight ga,, plants, and its d,tnibutmn IhIough Six tenitoual division, 206 DECISIONS OF NATIONAL.-LABOR RELATIONS BOARD covered by the Company's electric operations, organization has been only partially effected. In view of the circumstances, we are of the opinion that the employee organization which has occurred at the Kearny generating station and the Hudson Division indicates the propriety of establishing them as separate units.12 Our finding in this respect, however, does not preclude a latter determination that a larger unit is appropriate when organization has extended to. em- ployees in other parts of the Company's system. Having concluded that the employees of the Kearny generating station and the Hudson Division constitute units appropriate for bargaining, we -turn to the issues arising as •to specific categories of employees in dispute. The Kearny generating station Approximately 453 persons are employed at Kearny in the unit sought by the Union. They include boilermakers, stoker operators, oilers, electricians , engineers, laboratory testing employees, super- visors, foremen, and clerks. The parties agree to exclude super- visors and foremen, and we find that they should be excluded. The issues arise as to engineers, "professional" employees, and technical assistants, whom the Company would exclude, apparently on the ground that they are supervisory, and whom the Union would in- clude; and clerks, whom the Company would include and the Union would exclude. There are several kinds of engineers. In the steam operations there are first, second, and third engineers. They are considered as non-technical employees, and their duties are manual in that they operate valves and pumps. The yard engineer, who is a supervisor, has engineers under him who run steam cranes, locomo- tives, and coal `hoists. There are test engineers in the testing labora- tory who make boiler tests, maintain and operate steam meters, and compile and keep records of operational efficiency. Some of these engineers are referred to as "professional" men. They apparently perform the same duties as the other test engineers. The technical assistants are in the testing laboratory, and their duties appear to be similar to those of the test engineers. All of these groups have supervisors or foremen who perform little, if any, manual work. We shall include the engineers, "professional" employees, and technical assistants in the unit. There are approximately seven clerks. They keep time records, make up pay rolls, and handle the employees' service records. Their duties are clearly clerical, and we shall exclude them. 19 In previous cases we have found that self-organization among the employees had pro- ceeded, in general, along territorial or divisional lines , and accordingly we rejected the Comany's contention for a broader unit See Matter of Southern California Gas Company and Utility Workers Organizing Committee, Locals 170 and 193, 0. I. 0 , 41 N. L. R. B 668, and cases cited therein ; Matter of Appalachian Electric Power Co and International Brotherhood of Electrical Workers. L. U. B.-1182 . A. F. of L.. 38 N. L. R. B. 630 PUBLIC SERVICE ELECTRIC AND GAS COMPANY 207 We find that all the employees at the Kearny generating station, including engineers, "professional" employees, and technical assistants, but excluding supervisors, foremen, and clerks constitute a unit appro- priate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the Act. The Hudson Division The employees at Hudson 13 include all employees concerned with the distribution of electricity therein except employees in the commer- cial of ice.14 As the Company admits there are no generating station employees at Hudson,',' the only issue is as to clerks. These the Union would exclude on the ground that they are not admitted to member- ship. The Company would include them. Although their duties are not shown in any detail, it appears that they perform customary cleri- cal duties, and we shall exclude them as we did the clerks who are employed at the Kearny station. We find that all the electric distribution employees in the Hudson Division, including linemen, cable splicers, substation metermen, driv- ers, and mechanics, but excluding supervisors, foremen, and clerks constitute a unit appropriate for the purposes of collective, bargain- ing, within the meaning of Section 9 (b)' of the Act. V. THE DETERMINATION OF REPRESENTATIVES The Union desires that eligibility to vote be determined by refer- ence to the pay-roll period nearest the date of the filing of the petition, but gave no reason for the preference . We shall follow our usual practice and direct that the questions concerning representation which have arisen be resolved by separate elections by secret ballot among the employees in the appropriate units who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direction. 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 Relations Board Rules and Regulations-Series 2, as amended, it is hereby '$ Approximately 306 persons at Hudson are in the unit sought to be established by the Union. 14 The parties agree that the commercial office is not a part of the electric operations, and that these employees are not involved herein. 11 See footnote 7. 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIREOTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Public Service Electric and Gas Company, Newark, New Jersey, 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, under the direc- tion and supervision of the Regional Director for the Second 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 employees in the units found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including any such employees who did not work during said pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding any who have since quit or been discharged for cause, to determine whether or not they desire to be represented by International Brotherhood of Electri- cal Workers, affiliated with American Federation of Labor, for, the purposes of collective bargaining. CHAIRMAN MILUS took no part in the consideration of the above Decision and Direction of Elections.