Indianapolis Power & Light Co.

In the Matter Of INDIANAPOLIS POWER & LIGHT COMPANY, EMPLOYER and UTILITY WORKERS UNION OF AMERICA, LOCAL 343, CIO, PETITIONER Case No. 91-R-1346.-Decided February 11, 1948 Gilliom, Armstrong and Gilliom, by Messrs. Arthur L. Gilliom and Elbert R. Gilliom, of Indianapolis, Ind., for the Employer. Mr. Harold J. Straub, of Washington, D. C., and Messrs. Garland Sanders and Arthur Mostell, of Indianapolis, Ind., for the Petitioner. Lewis, Goett and Elliot, by Mr. Henry 0. Goett, of Indianapolis, Ind., for the Intervenor. DECISION AND DIRECTION OF ELECTION Upon a petition duly filed, hearing in this case was held at Indianap- olis, Indiana, on July 30, 31, August 1, and 5, 1947, before Clifford L. Hardy, hearing officer. The hearing officer's rulings made at the hear- ing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-man panel consisting of the undersigned Board Members.* Upon the entire record in this case, the National Labor Relations Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE EMPLOYER Indianapolis Power and Light Company, a public utility incor- porated in Indiana with plants and offices in Indianapolis, Indiana, is engaged in the production and distribution of electrical energy and steam. The operations of the Employer are conducted in several build- ings, chief among them being the main administrative building and the four power plants known as Harding Street, Mill,Street, Perry K, and Perry W. Among the Employer's customers are many interstate carriers, telegraph, telephone, and radio systems. * Chairman Herzog and Members Reynolds and Murdock. 76 N. L. R. B., No. 19. 136 INDIANAPOLIS POWER & LIGHT COMPANY 137 The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. Electric Utility Workers Union, herein called the Intervenor, is an unaffiliated labor organization, claiming to represent employees of the Employer. M. THE QUESTION CONCERNING REPRESENTATION Since September 1, 1937, the Intervenor 1 and the Employer have been parties to an automatically renewable contract, covering among others, the employees whom the Petitioner seeks to represent. During this period, the contract was amended and modified in many respects. On June 16, 1946, the parties executed an agreement which contained the following preamble : ... it is agreed by and between the Employer and the Union that [the 1937] agreement as heretofore amended and modified is hereby further changed, amended, and modified, and that as further changed and modified, this agreement shall constitute the entire agreement between the parties. The termination clause thereof provided that the agreement was to remain in effect until June 16, 1947, and thereafter be automatically renewed from year to year, unless either party notified the other, on or before April 15, 1947, or April 15 of any subsequent year, of its desire to "change or terminate" the agreement. On April 1, 1947, the Intervenor advised the Employer by letter that it desired that their current contract "be automatically renewed at 12: 00 o'clock, midnight, June 15, 1947," but that certain changes and amendments be made therein to be effective on the renewal date. The Intervenor then listed its proposals for modifying the agreement which covered 25 different subjects 2 and requested the Employer to negotiate with it respecting these modifications. In a letter dated April 12 acknowledging this request and naming a date for their meet- ing, the Employer enclosed a notice of its desire to modify their agree- 1 The Intervenor bad formerly been known as the I. P. and L Employees Protective Association 2 The subjects covered in the proposals included , inter alia, time and a half for Saturday, double time for Sunday , a 5-day work week for office employees, rules governing leave of absence , pensions , the length of probationary periods , maintenance of membership, vaca- tions, bonuses , a review of job classifications and wage rates, and a general wage increase. 138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ment. This notice contained a list of proposed changes 3 and, like the Intervenor's notice, expressed the desire that the agreement "be changed as of June 16, 1947, . . . and as so changed shall continue in effect for the period and periods therein specified." On May 2, while the negotiations for a modified agreement were in progress, the Peti- tioner requested the Employer to recognize it as the exclusive bargain- ing representative of its employees. The Employer refused and on May 6, the Petitioner filed the petition herein. On July 12, 1947, the Employer and the Intervenor entered into a written agreement which embraced the same range of subjects appearing in the 1946 agreement but revamped several of its provisions, including those relating to coverage, the terminal date, seniority, wages, and vacations. The Intervenor and the Employer contend.that no question of rep- resentation exists because as the Petitioner's claim was made after April 15, 1947, the date their agreement as amended in June 1946, had automatically renewed itself for another year. They further contend that the automatic renewal of the agreement was not forestalled by their mutual notices to each other because both notices recited that the parties desired the agreement to renew itself. Those contentions are lacking in merit. The 1946 agreement provides for its termination on notice of a hesire to change its terms as well as a notice of termina- tion. It contains no provision permitting modifications in any respect during its established term. The Intervenor and the Employer, there- fore, could not under the terms of the agreement request its revision and at the same time continue it in effect. In any event, we are per- suaded that the real purpose for the exchange of notices between the Intervenor and the Employer, notwithstanding the declarations in the notices to the contrary, was to negotiate a new agreement to supersede the 1946 agreement. That this was the intent of the parties seems clear from the breadth and scope of the changes which were proposed and which were subsequently incorporated in the 1947 agreement, as well as from the fact that the notices were given within the time limit pre- scribed in the 1946 agreement for preventing its automatic renewal for another year. In view of the foregoing, we are of the opinion that the April notices of the Intervenor and the Employer stayed the operation of the auto- matic renewal clause and effected.a termination of the f946 agreement as of June 16, 1947. We find, theref ore, that this agreement is not a bar to a present determination of representatives.4 Nor can it be 3 Among the provisions in the agreement which the Employer proposed to change were those relating to its coverage , its termination date, rates of pay for certain groups , holiday pay, and overtime. 1 4 Matter of E. I. Du Pont de Nemours and Company, Inc., 73 N. L. R. B. 439 ; Matter of Duquesne Light Company, 71 N. L R. B. 336. Furthermore , our conclusion in Section V, infra, as to the inappropriateness of the contract unit, constitutes an additional basis INDIANAPOLIS POWER & LIGHT COMPANY 139 claimed that the 1947 agreement bars the present proceeding inasmuch as the petition was filed prior to its execution. We find that a question affecting commerce exists concerning the representation of employees of the Employer, within the meaning of Section 9 (c) (1) and Section 2• (6) and (7) of the Act. IV. THE APPROPRIATE UNIT The Petitioner seeks a unit of all the Employer's production, mainte- nance, construction, and distribution employees, sometimes termed "physical" employees, excluding office and clerical employees, profes- sional and technical employees, guards, supervisors, and certain fringe groups. The Employer and the Intervenor urge the appropriateness of a company-wide unit embracing essentially all the non-supervisory employees, the unit for which the Intervenor has acted as bargaining agent since 1937 in its contractual relations with the Employer. The unit proposed by the Petitioner is substantially identical with the unit previously found appropriate by the Board in two earlier proceedings involving the Employer herein.-' The Employer and In- tervenor contend, however, that the history of collective bargaining on a company-wide basis and the close integration of the Employer's op- erations, warrants the establishment of a unit comprising all classi- fications of the Employer's employees.6 These contentions were con- sidered by the Board in its two earlier decisions and rejected.7 The record shows that since the date of these decisions there has been no material change either in the operations of the Employer, the duties of the employees, or the relationship of the various departments to one another. Under the circumstances, for reasons stated in our previous decisions involving the Employer, we are not persuaded to depart from our earlier determination as to the appropriate unit.8 for holding the contract not to be a bar. See Matter of The Mathieson Alkali, Works, 51 N L. R. B 113, Matter of Savannah Electric and Power Company, 48 N L R B. 33 5 See Matter of Indianapolis Power & Light Co., 51 N L. R B. 670, 62 N . L. R B. 1279. 6 The Intervenor won the elections which were directed in the two prior proceedings, and, notwithstanding the Board 's unit findings in these cases, continued to bargain on a company-wide basis, including the employees whom the Board expressly excluded from the unit found appropriate 7 The Employer also contends that the employees in the unit found appropriate in the prior proceedings have manifested their desire to continue as part of all-inclusive unit not only by their selection of the Intervenor in the previously held elections but by their unanimous approval of the contract executed on June 6, 1947, between the Employer and the Intervenor . A similar contention was raised in the earlier proceedings and rejected as not determinative of the issue herein 8 Matter of The Mathtieson Alkali. Works, 55 N. L. it. B. 1100 , Matter of Consolidated Vultee Aircraft Corporation, 70 N L it. B 1357. The Employer urges that our decision in the Matter of Pennsylvania Power and Light Company (64 N. L. it. B. 874) is determina- tive of the issue herein. We do not agree That decision rests upon the particular factors present in that case A different situation exists in the instant case We have in two earlier cases considered the specific factors herein urged by the Employer relative to the unit appropriate for its employees. In the first case we decided , and in the second case we 140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD There remains for consideration the question of including or exclud- ing the employees in classifications which the Petitioner would exclude from the appropriate unit and which were not specifically passed upon by the Board in former proceedings.s The tree trimming inspector in the Transmission and Distribution Department. The Petitioner contends that this employee is a super- visor. The record, however, shows that he has no employees under his supervision. His authority is limited to mapping out the manner in which trees growing near the Employer's lines shall be trimmed. He turns this information over to the tree trimming contractor who is responsible for executing the task. We find that the tree trimming inspector is not a supervisor and shall, therefore, include him. The distribution operation engineer and the meter and relay engi- neers in the Transmission and Distribution Department. While the Board excluded engineers from its unit findings in the earlier pro- ceedings, it did not pass upon these particular classifications of engi- neers. Like the engineers excluded, however, the duties of these employees require professional training and experience and their time is devoted to engineering problems. We are of the opinion that these employees would more appropriately be grouped with others of like education and interests and, accordingly, shall exclude them. The safety inspectors in the Personnel Department. These em- ployees make safety inspections of the Employer's property, investi- gate accidents and assist in establishing safety programs. They also conduct safety meetings among the employees. We are of the opinion that the work of these employees is of an administrative nature and that they should be excluded. The advertising assistant in the Advertising Department. This employee prepares advertising for newspapers and magazines. He also assists with the publication of the employee periodicals. We are of the opinion that this employee has no interests in common with those of the employees in the unit hereinafter found appropriate and we shall exclude him. affirmed , that physical employees apart from clerical employees constituted a separate ap- propriate bargaining unit. We considered and rejected the Employer's contention that there was such close integration between its physical and clerical workers that a single unit of its physical and clerical employees was mandatory. After each certification, however, the Employer and the Intervenor thereafter bargained on the broader basis without respect to the narrower unit delineation set forth in our decisions For these reasons, and on the basis of the record in the instant case, we are not persuaded that the limited periods of bargaining on the broader basis between the Employer and the Intervenor , and other factors herein , justify our dismissal of the instant petition on the ground that a unit of physical employees, excluding clerical employees, is inappropriate. U The Petitioner contends that the meter readers should be included in the unit although the Board excluded them in its earlier decision. No evidence at the heating was elicited as to their duties. We shall , therefore, adhere to our foimer decision and exclude them. INDIANAPOLIS POWER & LIGHT COMPANY 141 We find that all production, maintenance, construction, and dis- tribution employees of the Employer, including from among certain departments the categories listed in "Appendix A," but excluding the employees in departments listed in "Appendix B," as well as all clerks, stenographers, typists, telephone operators, accountants, billers, collectors, safety inspectors, salesmen, saleswomen, watchmen and special police, engineers, draftsmen, technical employees, special rep- resentatives, administrative employees, the advertising assistant, and supervisors, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. DIRECTION OF ELECTION 10 As part of the investigation to ascertain representatives for the purposes of collective bargaining with Indianapolis Power & Light Company, Indianapolis, Indiana, 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 Ninth Region, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations-Series 5, among the employees in the unit found appro- priate in Section IV, 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, 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, and also excluding employees on strike who are not entitled to reinstate- ment, to determine whether they desire to be represented by Utility Workers Union of America, Local 343, CIO or by Electric Utility Workers Union, for the purposes of collective bargaining, or by neither. APPENDIX A Department Categories included in unit Transmission and Distribution 11___ All but the distribution operation engineer, meter and relay engi- neers, service dispatchers, sten- ographers, and clerks. "Any participant in the election herein may, upon its prompt request to , and approval thereof by, the Regional Director, have its name removed from the ballot. it In the earlier proceedings, this department was designated as the Electrical Operating Department. 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Department Power Plants : Categories included in unit Harding Street --------------- All but clerks and special police. Perry "K"___________________ All but clerks, research clerks, and special police. Perry "W"__________________ All but special police. Mill Street ------------------- All but clerks and special police. Mechanical______________________ All but the stenographers, typ- ists, and clerks. Steam Heat______________________ All but the stenographer and technical assistant. Real Estate______________________ Only the firemen-groundsmen. Treasury ------------------------- Only the-general utility men. APPENDIX B Department Advertising and Publicity. Buildings and Grounds. Customer Service. Economy Methods and Practices. Engineering. General Accounting.- Personnel. Personnel and Public Relations. Department-Continued Purchasing. Real Estate (except for Firemen- Groundsmen). Rate. Sales. Treasury (except for general util- ity men).