Duquesne Light Co.

In the Matter of DUQUESNE LIGHT COMPANY , EMPLOYER and UTILITY DIVISION , DISTRICT 50, UNITED MINE WORKERS OF AMERICA , PETrI- TIONER Case No. 6-R-1661.-Decided October 11, 1946 Messrs. Joseph Lepie and Robert Silagi, for the Board. Messrs. Nicholas Un1 ovii and John C. Wayman, of Pittsburgh, Pa., for the Employer. Mr. Yelverton Cowhcrd,.of Washington, D. C., for the Petitioner. Mr. Herman Leipsitz, of Pittsburgh, Pa., for the Independent. Messrs. Herman E. Cooper and H. H. Ostrin, of New York City, and Mr. John P. McGovern, of Pittsburgh, Pa., for the CIO. Air. William F. Walsh, Jr., of Washington, D. C., and Mr. A. R. Johnson, of Pittsburgh, Pa., for the IBEW. - DECISION AND DIRECTION OF ELECTION Upon a-petition duly filed, hearing in this case was held at Pitts- burgh, Pennsylvania, on October 10, 1946, before Arthur Leff, 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 the case, the National Labor Relations : Board makes the following: FINDINGS OF FACT I. THIS BUSINESS OF THE EMPLOYER Duquesne Light Company is a Pennsylvania corporation, with its principal offices located in the city of Pittsburgh, Pennsylvania. • It is a subsidiary of the Philadelphia Company, a holding company which is in turn a subsidiary of the Standard Gas and Electric Company. It is engaged in the business of generating and distributing electrical power to consumers situated in Allegheny and Beaver Counties, Penn- sylvania, and through its connections with transmission lines of other companies, it occasionally distributes to and receives power from points in Ohio and West Virginia. Findings as to the nature, extent, 71 N. L It B, No. 47 336 DUQUESNE LIGHT COMPANY 337 and volume of the Employer's purchases and electricity distribution for the 9-month period ending September 30, 1943, were made by the Board in Case No. 6-R-911 and 6-R-912. (57 N. L. R. B. 770.) At the hearing in the instant case, the Employer stipulated that since September 30, 1943, it has continued to purchase materials and supplies and to generate and distribute electricity in approximately the same amounts as during the period therein described. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. TITS ORGANIZATION INVOLVED The Petitioner, affiliated with the American Federation of Labor; Independent Association of Employees of Duquesne Light Company and Associated Companies, unaffiliated, herein called the Independent; International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, herein called the IBEW; and Utility Workers Union of America, affiliated with the Congress of Industrial Organizations, herein called the CIO; each is a labor organization claiming to represent employees of the Employer.' III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive representative of employees of the Employer unless and until the Peti- tioner has been certified by the Board in an appropriate unit. There is only one issue in this case. The Independent contends that a contract, dated March 13, 1945, as thereafter supplemented, between it and the Employer, constitutes a bar to a present determination of representatives. The CIO and the IBEW dispute the contention of the Independent that the contract is a bar. They contend, in sub- stance, that this contract was reopened for unlimited renegotiation prior to its latest automatic renewal date and that since negotiations for a new or modified contract had not yet closed at the time the peti- tion was filed in this proceeding, the contract cannot be deemed to operate as a bar. The Employer takes a neutral position on this issue. The contract, dated March 13, 1945, contains, as Section 28 thereof, the following termination provision : This agreement shall be in effect retroactive from September 1, 1944, and shall continue in effect until August 31, 1946, and there- after from year to year until cancelled or otherwise terminated as herein provided. Either party may cancel the agreement at 'At the hearing, motions for leave to intervene made by the Independent , the IBEW, and the CIO were granted by the hearing officer. 338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the expiration date or at the end of any subsequent yearly period by giving to the other written notice thereof at least sixty (60) days in advance of such date. Without cancelling the agreement, either party may sixty (60) days prior to each anniversary date serve written notice on the other party of changes desired in wage rates for job classifications, job classifications, hours of work, working conditions or other conditions of employment. The contract, elsewhere, contains two provisions permitting contract modifications in limited respects during the established term of the contract. Thus, it is provided that if, during the term of the agree- ment there is a revision of the Wage Stabilization Policy, the Em- ployer, on demand of the Independent, shall within 10 days meet and negotiate changes in wage rates. It is also provided that while wage rates for job classifications, job classifications and hours of employ- ment shall remain the same, working conditions and other conditions of employment may be changed or modified by negotiation, upon 10 days' notice by the party seeking such adjustment. On June 28, 1946, the Employer and the Independent exchanged letters of notification pursuant to the provisions of Section 28 of the contract. The Independent's notice, addressed not only to the Em- ployer but to various companies affiliated with the Employer and for utihose employees the Independent was bargaining representative in other units, stated : The union requests a meeting with you at your earliest convenience. The purpose of the meeting is to make certain changes in wages, working conditions, and other conditions of employment for all employees in the Duquesne Light Company, Allegheny County Steam Heating Company, and Equitable Auto Company, as cov- ered by Independent union contracts. The Employer's letter to the Independent read as follows : As provided in Section 28 of the above agreement, you are hereby notified that this Company desires changes in the agree- ment and will be prepared to present and consider the changes in detail with your Negotiating Committee at such time as it is con- venient for you to meet with us. You are hereby notified that the Supplemental Agreement dated March 13, 1945, relating to employees in the Engineering and Construction Department is hereby cancelled effective Au- gust 31, 1946. 2 2 The Engineering and Construction Department employees were within the unit involved in this proceeding The record elsewhere indicates that the Employer planned at that time to discontinue the services of these employees in that department. DUQUESNE LIGHT COMPANY 339 Thereafter, on July 16, 1946, the Independent presented to the Em- ployer a draft of a proposed new contract for a term of 1 year com- mencing September 1, 1946. The proposed contract covered not only the employees in the unit involved in this proceeding, but employees in all other units theretofore represented by the Independent as well as certain employees who had not theretofore been represented in any of the units. It named as parties to the contract, in addition to the Employer, various affiliated companies of the Employer who were employees in other units. The proposed new agreement revamped entirely the provisions of the old contract. Among the provisions of the old agreement which it proposed to modify in substantial respects, to mention only a few of them, were those relating to wage rates, overtime allowances , grievance procedure , holidays, va- cations, shift differentials, probation periods, and compensation to employees on settled grievances. It also proposed the inclusion of many substantive provisions not found at all in the old contract; among them were provisions for a union shop , for a pension plan, separation allowances, and hospitalization insurance. The Employer took the position that the Independent's proposal concerning the parties to the contract was not negotiable, but other- wise agreed to negotiate all the proposals found in the Independent's proposed new contract. At various times thereafter the Employer submitted counter-proposals in the form of proposed modifications to the old contract. The counter-proposals, which included deletions, modifications, and additions to the old contract, likewise covered a wide range of substantive provisions, among them provisions relating to wages, working conditions, hours of work, dues deductions, strikes, bulletin board postings, seniority, grievances, vacations, and holidays. The negotiations for a new or modified agreement, as described above, were still continuing, and no agreement thereon had been con- cluded, when, on October 5, 1946, the petition for certification of representatives in this proceeding was filed. It is clear from the foregoing facts, and we find, that the Independ- ent and the Company, when they exchanged notices on June 28, 1946, did not intend merely to negotiate such modifications as the contract contemplated might be made during its fixed term, but intended, rather, to reopen the contract for complete re-negotiation looking toward a new contract to supersede the contract which by its terms was to expire, unless automatically renewed, on August 31, 1946. The notices were given pursuant to Section 28 of the contract, a section which may be invoked only at a time normally suitable for the exer- cise of the power, possessed by each of the contracting parties, to pre- vent the automatic renewal of the agreement for another year. Under that section and the notices given pursuant thereto, the contract 340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD changes that might be made covered a substantially unlimited range and were such as parties usually contemplate when they propose to re- view the provisions of an old contract primarily as a basis for negotiat- ing a new one for the succeeding contract term. That this was the in- tent of the parties to the contract in the instant case, is proved by the form of the proposals and counter-proposals as well as by the basic character and the substantiality of the contract changes thereafter sub- mitted for negotiation, changes which extended far beyond the scope of the original contract. Under the circumstances, the reservation "without cancelling the agreement" which appears in Section 28 and in the Employer's notice can at most be construed, as we find, to mean that where a notice under that section is given, the old contract will be deemed to continue in effect beyond its original term during the in- terim period pending the completion of negotiations for a new con- tract. So construed, the old contract which is here relied on as a bar, became, at the expiration of its original term, a contract of in- definite duration, and cannot therefore operate to preclude a present determination of representatives. In any event, it is apparent in the instant case that the negotiations entered into between the Employer and the Independent following the exchange of the notices were so broad in scope as to constitute a complete reopening of the contract. We find, therefore, that the filing of the petition was timely, and that the contract between the Employer and the Independent constitutes no bar to a present determination of representative;.-3 We find that a, question affecting commerce has arisen concerning the representation of employees of the Employer within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The parties are agreed, and we find, that all maintenance and pro- duction employees of the Employer, including trouble men, utility men, service men, material men, cable testers, field clerks, and service crew leaders, but excluding shift foremen, mine employees in the unit presently represented by United Mine Workers of America, clerical and technical employees, all plant-protection employees, and all or any other supervisory employees with authority to hire, promote, dis- charge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. s Cf Matter of United States Vanadium Coy poration, Pine Creek Unit, 68 N. L. R B. 289: Matter of Olin Industries, Inc (Western Cartridge Oompany Division, East Alton, Illinois), 67 N L It. B. 1043, Matter of Atlas Felt Products Company, 68 N. L It B 1 ; and Matter of The Ohio River Company (Illinois River Division ), 66 N L. R B. 128. DUQUESNE LIGHT COMPANY V. THE DETERMINATION OF REPRESENTATIVES 341 We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot, subject to the limitations and additions set forth in the Direction. At the time of the hearing, the employees in the unit above found appropriate were on strike. Under the circumstances and in accord- ance with an agreement of all the parties, we shall direct the use of the pay-roll period ending September 15, 1946, the last pay-roll period immediately preceding the current strike, for purposes of determin- ing eligibility to vote. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Duquesne Light Company, Pittsburgh, Pennsylvania, an election by secret ballot shall be con- ducted as early as possible, but not later than ten (10) days 4 from the date of this Direction, under the direction and supervision of the Regional Director for the Sixth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regula- tions-Series 4, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period end- ing September 15, 1946, 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 Utility Division, District 50, United Mine Workers of America, or by Independent Association of Employees of Duquesne Light Company and Asso- ciated Companies, or by International Brotherhood of Electrical Workers (AFL), or by Utility Workers Union of America (CIO), for the purposes of collective bargaining, or by no union. 4In view of the critical situation in the City of Pittsburgh resulting from the current strike and in the interest of providing an expeditious resolution of the pending representa- tion question, we deem it advisable to depart from our normal practice of directinz the holding of elections within 30 days.