Illinois Cities Water Co.

In the Matter of ILLINOIS CITIES WATER COMPANY, EMPLOYER and INTERNATIONAL HOD CARRIERS', BUILDING AND COMMON LABORERS' UNION OF AMERICA, SOUTHERN ILLINOIS DISTRICT COUNCIL, AFL,1 PETITIONER Case No. 14-RC-692.-Decided November 18,1949 DECISION AND ORDER Upon a petition duly filed, a hearing was held before Glenn L. Moller, 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 National Labor Relations Act. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. No 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, for the following reason : 2 The Petitioner seeks a unit of all employees at the Employer's Mount Vernon, Illinois, plant.3 The Intervenor opposes the requested unit on the grounds that it conflicts with the bargaining history of the plant and with a jurisdictional agreement between the Petitioner and the Intervenor. The Employer indicated no position at the hearing. The bargaining history shows that from 1935 until 1940, the Inter- venor represented all the employees at the Mount Vernon plant, including laborers. However, in 1940, the Intervenor and the Peti- ' The Petitioner 's name appears as amended at the hearing. s The motion to dismiss the petition by International Brotherhood of Electrical Workers, Local 702 , AFL, herein called the Intervenor, on the ground that its contract with the Employer is a bar to this proceeding , is hereby denied. The contract in question became effective July 1, 1947 , for a term of 1 year with a 30-day automatic renewal provision. The petition , having been filed on May 2, 1948 , effectively forestalled the contract's auto- matic renewal, which would have taken place on June 1, 1949. 3 Described in the petition as "maintenance and maintenance construction employees." 87 NLRB No. 20. 109 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tioner entered into an agreement A wherein the Intervenor recognized the Petitioner as having work jurisdiction over laborers and the .Petitioner recognized certain jurisdictional claims of the Intervenor. Thereafter, the Petitioner has represented, under contract, all the Employer's laborers, while the Intervenor continued to represent, under contract, the remaining employees at the plant. In May 1948, the Board conducted a consent election pursuant to the results of which the Intervenor was authorized to enter into a union-security agree- ment with the Employer on behalf of a unit of "construction, mainte- nance, and service employees," not including laborers. In October 1948, the Petitioner was similarly authorized as the result of a Board consent election held in a unit of laborers. The Employer's Mount Vernon plant is composed of a plant depart- ment and a distribution department, each under the sole supervision of a superintendent. In the plant department, the employees operate the chemical and mechanical purification and filtration equipment. In the distribution department, the. employees are engaged primarily in the laying of pipe and the maintenance of such pipe; they also assist with the maintenance work in the plant department. All laborers, together with certain other classifications of employees here in ques- tion, are assigned to the distribution department. The laborers do not work under separate supervision or apart from the other plant employees; in many instances, they and the other employees perform similar or overlapping work.5 At the time of the hearing, there were 13 employees at the plant classified as laborers, and 9 employees with other classifications.6 From the foregoing it appears that the employees at the Employer's Mount Vernon plant have been represented for the past 9 years in two separate bargaining groups, i. e., the laborers by the Petitioner and the remaining plaint employees by the Intervenor. The sole objective of the Petitioner in this proceeding is to merge these two bargaining groups into a single plant-wide unit. The Intervenor argues only in opposition to this comprehensive unit sought by the Petitioner. The inherent appropriateness of plant-wide unit requested is amply estab- lished in the record by the evidence, inter alia, of common functions, supervision, and general working conditions on the part of employees in both of the historical groups. Nor is the establishment of such an over-all, unit precluded, as the Intervenor contends, by the jurisdic- 4 This jurisdictional agreement was executed on behalf of the respective international unions of the Petitioner and the Intervenor during the annual convention of the American Federation of Labor. 5 Such as, in the maintenance and handling of pipe. GE. g., servicemen , fitters, fitters helpers, truck driver-helper. and meter reader. ILLINOIS CITIES WATER COMPANY 111 tional agreement between the Petitioner and the Intervenor,' or by the fact that consent elections were held in each of the historical units for purposes of union-shop authorization.$ We find, accordingly, that a single unit embracing all the employees at the Mount Vernon plant may be appropriate. However, in view of the 9-year period of amicable bargaining, dur- ing which the employees at the Mount Vernon plant, other than laborers, were represented separately, we must consider whether the requested merger of the laborers and the remaining plant employees should be permitted without first affording the latter group an op- portunity, by means of a separate election, to express its desires on the question. As a matter of policy, the Board has in past decisions pro- vided for such a self-determination election among employees, pre- viously excluded, who were sought to be added to an existing bar- gaining unit, if the moving union satisfied the Board administratively that it possessed a sufficient representative interest among such ex- cluded employees.9 The same policy has applied even though, as in the present case, the employees sought to be merged were currently being represented in a separate unit.10 Basically, this policy stems from the Board's reluctance to disturb the contract unit or units es- tablished as a result of collective bargaining," and a desire by the Board to give recognition and effect to a bargaining history, effectively evincing the intent of the parties'12 which is not repugnant to es- 7 The jurisdictional agreement does not relieve the Board of its statutory duty of deter- mining the bargaining unit in the light of all the relevant facts. Guy F. Atkinson d J. A. Jones Construction Company , 84 NLRB 88 ; Philip Morris d Company, Ltd., 70 NLRB 274. 8 The consent elections , having been conducted upon the basis of units stipulated by the parties and not upon a Board determination of the merits, are not binding upon the Board. Peoples Life Insurance Company, 72 NLRB 1.406. 8 See, e. g., Petersen. d Lytle, 60.NLRB 1070 ; Conant Ball Company, 57 NLRB 772; Willamette Valley Lumber Company , 69 NLRB 1141; City Ice d Fuel Company, 72 NLRB 903 ; Gunnison Homes, Inc., 72 NLRB 940 ; The American Greeting Publishers, Inc., 73 NLRB 1226 ; The Sorg Paper Company, 74 NLRB 5 ; Inman Mills, 82 NLRB 735; Allis- Chalmers Manufacturing Company, 84 NLRB 30. 10 See, e. g., Cincinnati, Newport and Covington Railway Company, 56 NLRB 820; Central Greyhound Lines , 56 NLRB 1378 ; Guilford Hosiery Mills, 70 NLRB 1047 ; Gold- berg Brothers Manufacturing Company , 81 NLRB 1037; Philadelphia Company and Asso- ciated Companies, 84 NLRB 115 . Cf. Columbia Pictures Corp ., et al., 80 NLRB 1381 ; Reynolds Metals Co ., 79 NLRB 1166 ; Carolina Power d Light Company , 80 NLRB 1321, 11 See Laurel -Textiles, Inc., 80 NLRB 262 ; Gastonia Combed Yarn Corporation, 73 NLRB 169 ; Conant Ball Company; 57"NLRB 1262 , and cases cited in notes 9 and 10 , supra. 12 Cf. Ifygrade Food Products Corporation, 85 >N.LRB .841, and Lone Star Producing Company, 85 'NLRB 192 (in both of which Member Reynolds dissented ), cited by our dissenting colleagues in support of the proposition that the bargaining history in this case may be disregarded . The latter cases are distinguishable , in the opinion of Chair- man Herzog and Member Gray. In both of these cases , the Board found , in effect, that the bargaining history in question was not conclusive. Thus, in the Hygrade case, the Board found no clear indication that the parties, by their past practices , actually intended a consolidation of the 13 plant units, thereby destroying the separate bargaining identity of each of these plants . Whereupon the Board stated that it "need not determine whether the intent of the contracting parties as to the 112 DECISIONS OF NATIONAL. LABOR RELATIONS BOARD tablished Board policy respecting the composition and scope of bar- gaining units.13 We believe that the reaffirmation of such a policy will tend to stabilize established collective-bargaining relations without unduly impinging upon the employees' freedom under the Act to choose their bargaining representatives.14 However, as this Petitioner has failed to establish the necessary showing of interest among the plant employees it seeks to merge with its present unit of laborers, and in view of its apparent lack of desire for an election confined to the laborers alone, we shall dismiss the petition," without prejudice to filing a new petition at such time as the required showing of repre- sentation can be made 16 ORDER IT IS HEREBY ORDERED that the petition herein be, and it hereby is, dismissed without prejudice. MEMBERS HOUSTON and MURDOCK, dissenting : We would direct an election, as requested by the Petitioner, in the only bargaining unit that can properly be held appropriate in this case, namely, a plant-wide unit embracing all of the Employer's Mount Vernon employees. We cannot agree with the decision of the majority which would permit the continuation of an artificial and arbitrary division of these employees for collective bargaining pur- poses simply and solely because of the existence of a bargaining his- tory on the. basis of two separate units. Nor do we believe that the unit issue herein can properly be resolved, as the majority decision contemplates, by a separate election to ascertain the desires of the employees in the bargaining unit historically represented by the In- scope. of the bargaining unit would be controlling, if it were clearly expressed" (emphasis added). Likewise, in the Lone Star case, the Board was unable to find that the 3 groups of employees in controversy were effectively excluded from the company-wide bargaining. On the contrary, the Board found that all the existing piecemeal groups and plants, as a result of past bargaining, have been effectively merged into a single group." 13 See, for example, Pacific Telephone and Telegraph Company, 80 NLRB 107; Public Service Electric and Gas Co. of New Jersey, 81 NLRB 11$1 ; Libby-Owens-Ford Glassy Company, 65 NLRB 434; Lake Tankers Corporation, 64 NLRB 281 ; E. I. du Pont de Ne- mours d- Co., 69 NLRB 509; F. S. Royster Guano. Company, National Utilization works Division, 71 NLRB 1465; Chesapeake and Potomac Telephone Co. of Virginia, 82 NLRB 810; John Hancock Mutual Life Insurance Co., 82 NLRB 179 ; Peoples Life Insurance Company, 72 NLRB 1406. 14 Insofar as they are inconsistent herewith, Tinlin.g and Powell, 82 NLRB 526, and York Motor Express Company, 82 NLRB 91, are hereby overruled. 11 We consider it immaterial whether the petition was filed for an election merely among the employees sought to be merged, or whether, as here , the petition seeks an election among all the employees in the over-all unit. 16 See Associated Fur Coat & Trimming Mfrs., Inc., 57 NLRB 1502 ; and, e. g., Petersen Lytle, supra; Allis-Chalmers Manufacturing Company,.supra; .Inman Mills, supra. ILLINOIS CITIES WATER COMPANY 113 tervenor,1' upon a showing of representation by the Petitioner in the latter unit. Such a. disposition necessarily entails the confirma- tion, express or implied, that the existing units are appropriate-a determination we find untenable. The composition of the two historical bargaining groups was de- termined entirely upon the basis of a jurisdictional agreement between the Petitioner and the Intervenor 18 However, the facts clearly in- dicate, and there is no dispute, that neither of these two bargaining groups can be distinguished or readily identified by reason of any skills, duties, functional independence, separate supervision, separate work location, rate of manner of pay, or general working conditions of the employees included therein. Absent the factor of bargaining history, therefore, no basis appears for finding appropriate any bar- gaining unit other than one encompassing all of the employees. Section.9 (b) of the Act provides, in part, that: The Board shall decide in each case ..., in order to assure to employees the fullest freedom in exercising the rights guaranteed by this Act, the unit appropriate for the purposes of collective bargaining.. Thus, it is the Board's function and responsibility to determine in each case what bargaining unit would assure the employees the fullest freedom in exercising their rights under the Act. In fulfilling this function, the Board has been guided by the basic concept that only employees having a substantial mutuality of interests in wages, hours, and working conditions, as revealed by the type of work they perform, should be appropriately grouped in a unit for bargaining purposes.19 Although an effective bargaining history has always been viewed by the Board as a persuasive element in support of the appropriateness of established units, it is but one of several factors considered by the Board in deciding whether a proposed unit appropriately groups the employees in accordance with their mutual interests.20 Moreover, in view of the express requirement in Section 9 (b) that "the Board shall decide" the appropriate unit "in each case," we believe the factor of bargaining history should not be accorded controlling weight where, as here, the units established thereunder do not conform in any 11 See Lone Star Producing Company, supra. 11 We agree with the majority that the jurisdictional agreement can not relieve the Board of its exclusive duty under the Act to determine the appropriate bargaining unit. Nor, as we have pointed out below, can the bargaining history relieve the Board of this statutory duty. 10 See e. g., Chrysler Corporation, 76 NLRB 55, 58. 20 Twelfth Annual Report (1947) p. 18 ; Thirteenth Annual Report (1948), p. 36. Cf. Hygrade Food Products Corporation, 85 NLRB 841. 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respect with other Board standards of appropriateness .21 Con- sequently, as it is clear on the record that the employment interests of employees in the two historical units are indistinguishable , we con- clude that only in a single plant -wide unit can the interests of all the Mount Vernon employees be best represented in bargaining . Permit- ting.bargaining to continue on the basis of the two separate units, which is the effect of the majority decision , improperly accords con- trolling, if not exclusive, weight to the bargaining history. Yl York Motor Express Company, 82 NLRB 801 ; Tinting and Powell, 82 NLRB 526. (We note that our colleagues in the majority found it necessary expressly to overrule the latter cases. ) Lone Star Producing Company, supra. Cf. IJygrade Food Products Corporation, supra, note 20. Member Houston notes that his dissenting views in the Tinling and York cases, supra, emphasize bargaining history as a significant factor in determining appropriateness of units pursuant to Section 9 (b) of the Act. In those cases , unlike this one, however, lie would have established units because the bargaining history stemmed from inherently cohesive groups of employees having sufficient elements of homogeneity and mutuality of interest to justify finding that they were appropriate for bargaining . Here, no such fundamental criteria seemed to be met, and the bargaining history , consequently , is based upon an arbitrary separation of individual job classifications.