United Mine Workers of America

UNITED MINE WORKERS OF AMERICA 425 ployees from all plants which the amalgamated represented. The fact that the Petitioner now chooses, in the face of the broad disaffilia- tion, to limit its representation claim to all but one of these plants, does not lessen the effect of the disaffiliation. Accordingly, we find that the Intervenor's contracts with the Employers do not bar the instant petitions and that a question affecting commerce exists con- cerning. the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act' 4. The following employees of the Employers constitute units appro- priate for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act : All production and maintenance employees of the Bryant Finishing Co., Inc., Coventry, Rhode Island, excluding executives, office and clerical 'employees, guards, professional employees, and all super- visors as defined in the amended Act. All production and maintenance employees of the Pawtuxet Valley Dyeing Co., Inc., West.Warwick, Rhode Island, excluding executives, office and clerical employees, guards, professional employees, and all supervisors as defined in the amended Act. All. production and maintenance employees of the Thies Dyeing' Mills, Inc., West Warwick, Rhode Island, including receiving and shipping clerks but excluding general office help, foremen, heads of departments, guards, and all supervisors as defined in the amended Act. All production and maintenance employees of the George E. Mousley Company, Inc., and Millburn Mills, Inc., West Warwick, Rhode Island, excluding executives, supervisors, office clerical em- ployees, professional employees, and all supervisors as defined in the amended Act. [Text of Direction of Elections omitted from publication in this volume.] UNITED MINE WORKERS OF AMERICA, LOCAL UNION 12050, DISTRICT 50 and EQUITABLE GAS COMPANY. Case No. 6-CD-15. November 19, 19,152 Decision and Determination of Dispute STATEMENT OF THE CASE This proceeding arises under Section 10 (k) of the Act, as amended by the Labor Management Relations Act, 1947, which provides that 4 See Wade Manufacturing Company, 100 NLRB 1135 , and cases cited therein. Cf. J. J. Tourek Manufacturing Co., 90 NLRB 5; Barker and Williamson, Inc., 97 NLRB 562; Telex, Inc., 90 NLRB 202; Trio Industries, Inc., 97 NLRB 1146. 101 NLRB No. 99. 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD "whenever it is charged that any person has engaged in an unfair labor practice within the meaning of paragraph 4 (d) of section 8 (b), the Board is empowered and directed to hear and determine the dispute out of which such unfair labor practice shall have arisen. . . :' On June 5, 1952, Equitable Gas Company, herein called Equitable, filed with the Regional Director for the Sixth Region a charge against Local 12050, District 50, United Mine Workers of America, herein called District 50, alleging that it had engaged in and was engaging in certain activities proscribed by Section 8 (b) (4) (D) of the amended Act. It was alleged, in substance, that District 50 had in- ducod and encouraged Equitable's employees to engage in a strike or con serted refusal to work in the course of their employment with an object of forcing or requiring Equitable to assign particular work to employees who are members of or represented by District 50 rather than to employees who are members of Local Union 149, International Brotherhood of Electrical Workers, AFL, herein called the IBEW. Pursuant to Sections 102.71 and 102.72 of the Board's Rules and Regulations, the Regional Director investigated the charge and pro- vided for an appropriate hearing upon due notice to all the parties. Thereafter, a hearing was held before Joseph C. Thackery, hearing officer, on July 2 and 3, 1952. The IBEW was permitted to intervene and to participate fully in the hearing. All parties appeared at the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to adduce evidence bearing on the issues. The rulings of the hearing officer made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Equitable Gas Company, a Pennsylvania corporation, is engaged at Pittsburgh, Pennsylvania, in the production, transmission, purchase, storage, distribution, and sale of fuel gas. It has interconnecting pipe- lines with Texas Eastern Transmission Corporation, Tennessee Gas Transmission Company, and the United Fuel Gas Company. These latter companies are engaged in the transmission of fuel gas from the southwestern United States. During 1951 Equitable produced 37,084,634 thousand cubic feet and purchased 25,028,786 thousand cubic feet of gas from the above-named transmission companies and purchased 10,133,668 thousand cubic feet of gas from other sources. In the same period Equitable sold 2,906,889 thousand cubic feet of gas in West Virginia valued at $968,303 and sold UNITED MINE WORKERS OF AMERICA 427 54,597,042 thousand cubic feet of gas in Pennsylvania valued at $24,817,360. Equitable stipulated that it is engaged in interstate commerce, and the Board's jurisdiction over its operations is not contested by any of the parties. We find that Equitable is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATIONS INVOLVED United Mine Workers of America, Local Union 12050, District 50, and Local Union 149, International Brotherhood of Electrical Work- ers, AFL, are labor organizations within the meaning of the Act. M. THE DISPUTE A. Facts In 1948, the Securities and Exchange Commission ordered the break- ing up of the Philadelphia company, a holding company whose num- erous subsidiaries included the Equitable Gas Company and Duquesne Light Company in the Pittsburgh area. By December 1950 Equitable had been extruded from the Philadelphia system, and only one action remained to be accomplished before full compliance as to Equitable with the SEC order. The unified purchasing, warehousing, and sup- ply functions hitherto performed at its Manchester warehouse in Pittsburgh by Duquesne for itself and other Philadelphia subsidiaries, including Equitable, were to be fragmented by transfer of these func- tions to the subsidiaries for performance by themselves. Equitable had arranged to transfer certain stocks from Manchester to its own premises, and to place on its own payroll nine employees who had worked for Duquesne but whose functions while there were mainly handling Equitable's supplies. In connection with these transfers, Equitable created a new department within the framework of its corporate structure called the purchasing department, and included within it the general stores division. The nine employees slated for transfer from Duquesne were assigned to this division. A new facility, called the South Side location, was constructed by Equitable, and space therein was allocated for general stores warehousing and supply functions. In October 1951 Equitable began the movement of general stores supplies and personnel to the new South Side location. According to the testimony of Equitable's officials, District 50 hereupon objected to the employment of IBEW members at this location and demanded the assignment of the disputed general stores jobs 1 at South Side to ' There is no dispute as to three of the nine jobs involved in the transfers. 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD its members who were employed in Equitable's distribution depart- ment? District 50's witnesses did not specifically deny this testimony but testified that the demand was for the assignment of the disputed work to employees in the distribution department as required by Equitable's contract with District 50. To enforce its demand District 50 on October 22, 1951, caused a work stoppage by its members which ended upon agreement by Equitable to recall the transferees to the Manchester warehouse. Between October 1951 and June 1952, Equi- table tried unsuccessfully to settle the controversy with the competing unions. On June 4, 1952, Equitable again attempted to transfer gen- eral stores supplies and personnel from the Manchester warehouse to the South Side location. On June 5, District 50 blocked this move by a strike of its members and by picketing. On June 6 the work stop- page ended on Equitable's assurance that the transfer would be post- poned until a ruling by the Board had determined the rights of the parties. . B. Bargaining history Local 12050, District 50, UMW, was certified in 1937 by the Pennsyl- vania Labor Relations Board as bargaining representative for a unit limited to Equitable's distribution department employees , and has ever since had contractual relations with Equitable for these employ- ees. Its current contract for 3 years, effective from December 16, 1950, was signed in January 1951. During negotiations in December 1950, preceding agreement as to the terms of this contract , District 50 pro- posed that all new jobs to be added to the Equitable payroll as a result of the SEC order be covered by the contract . District 50's officers testified that this proposal was a specific claim by their Union for bargaining rights for the disputed jobs. Equitable rejected the pro- posal, and the disputed jobs were not specifically covered by the con- tract. However, for the first time in any contract between the parties, the following clause, hereinafter called the negotiation clause, ap- peared in the new contract : Classifications not shown in this Agreement will be a matter of negotiation between the Company and the Union covering hourly and monthly employees. Philadelphia and its subsidiaries , including Equitable and Du- quesne, have had contractual relations on a joint basis with various IBEW locals. Following Board certifications in 1948 and 1949, in stipulated cases, the several companies in the Philadelphia system entered into a 2-year contract effective from October 1, 1949, with IBEW Local Unions 140 and 149 as the joint representatives of the S The distribution department is one of 10 departments shown on the Equitable organi- zational chart. It appears to be a main operating department of the company. UNITED MINE WORKERS OF AMERICA 429 employees of the "General Departments" of the companies.3 These departments performed certain management, administrative, and other nonoperating services for all the Philadelphia subsidiaries on an intercompany basis. Included among these departments was the system's purchasing department. Pursuant to Board certifications in 1948, in stipulated cases,4 Du- quesne executed separate 2-year contracts effective October 1, 1951, one with IBEW Local Unions 140, and 148, and the other with IBEW Local Unions 140 and 149. The first of these contracts covered Duquesne's production, maintenance, transmission, and dis- tribution employees including the nonclerical classifications of the general stores department. The second contract covered all of Du- quesne's office, clerical, and technical employees including the clerical classifications of the general stores department. The general stores department performed the above-related supply services at the Man- chester warehouse for several of the subsidiaries, including Equitable, and was regarded within'the Philadelphia system as a quasi-general department. When, following the SEC order, the general and quasi-general departments ceased to operate on an intercompany basis and Equita- ble was required to perform the functions of these departments for itself, Equitable and Local Union 149 agreed to representation by the latter of the employees on the Equitable payroll who had formerly been covered by the contract for general departments employees and of the transferred general stores employees formerly covered by Du- quesne's contracts with the several IBEW locals. By an agreement dated November 19, 1951, the parties agreed to cover these employees for 1 year from October 1, 1951, under the pertinent terms of the general departments contract with certain modifications. Thus, at present the disputed employees are expressly covered by an agreement which extends to Equitable's employees in its purchasing, accounting, automotive equipment, economic and management research , general sales, land, personnel, planning and development, secretary's and treasury departments. In effect these employees comprise a unit com- parable to the former unit of general departments employees of the Philadelphia subsidiaries, the essential difference being that the unit now represented by Local Union 149 consists only of Equitable's employees. 3 The IBEW was certified in Case No. 6-RC -64 for a unit of "all employees of the ,General Departments " of the Philadelphia company and its subsidiaries. In Case No. 6-RC-305 Local Union 149 , IBEW, was certified for a unit of "collectors traffic receipts, assistant collectors traffic receipts , and chauffeur guard relief men in the Treasury Depart- ment" of the companies. The Board's certification in the latter case permitted the inclu- sion of these employees in a single unit with the general department employees. The October 1, 1949, general departments contract accordingly covered all employees included In these certifications. 4 Cases Nos. 6-RC-88 and 6-RC-89. 430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Contentions of the parties Equitable contends that it has the right freely to assign the work in question to employees of its own choosing, and denies any surrender of such right to District 50 by contract or otherwise. The IBEW is in accord with Equitable's position. District 50 maintains that its contract with Equitable requires the assignment of the disputed work to employees in the distribution department. This contention is predicated on a construction of the "negotiation" clause in the contract which District 50 argues obligated Equitable to "negotiate" with it for the disputed jobs. District 50 argues further that through negotiation it could have shown that these jobs appropriately belong in the distribution department, and that the jobs should have been posted so that employees of that de- partment could have bid for them; ° that by unilaterally including these jobs in the general stores division of the purchasing department and by assigning them to members of the IBEW, Equitable violated its contract. D. Applicability of the statute It is clear from the record that the "dispute" in this proceeding involves efforts by District 50 to force or require Equitable to assign certain work of its general stores division in the purchasing depart- ment to employees who are either members of District 50 or are members of the distribution department bargaining unit covered by District 50's contract, although the work was assigned by the Employer to employees who are represented by the IBEW and cov- ered by its contract. Accordingly, we find that this is a dispute within the meaning of Sections 8 (b) (4) (D) and 10 (k), and therefore properly before us for determination.,, E. Merits of the dispute The parties disagree as to the meaning of the negotiation clause in the contract. Equitable and the IBEW assert that as the contract accords representative status to District 50 for distribution department employees only, the negotiation clause manifestly requires the parties 5 District 50's field representative testified that "The thing we were objecting to was these men [ the disputed employees] coming in at the very top classification." He testified further that District 50 desired that the jobs be posted "within the framework of [its] contract." As the contract provides for the filling of new jobs created in the distribution department with qualified employees in that department before new employees are hired, it seems apparent that the demand for posting was a method of forcing the selection of distribution department members for these jobs. •Local 26, International Fur and Leather Workers Union (Winslow Bros. & Smith Co.) 90 NLRB 1379 ; Amalgamated Meat Cutters & Butcher Workmen of North America, Local 556, AFL (Safeway Stores, Incorporated ), 100 NLRB 357. None of the parties in this proceeding contests the applicability of the statute , and stipulated at the hearing to be bound by the Board's determination. UNITED MIIkE WORKERS OT 'AMERICA 431 to negotiate solely for new classifications created within that depart- ment. Equitable's officials testified that the clause was included in the contract for this specific purpose. Because the disputed jobs were established in the purchasing department, which is separate and distinct from the distribution department, they maintain that Equitable was not obligated, by the contract to negotiate with District 50 concerning these jobs. District 50, on the other hand, asserts that the clause was intended to apply to all new classifications to be added to the Equitable pay- roll as a result of the transfer of employees from Philadelphia sub- sidiaries pursuant to the SEC order. To support this position, Dis- trict 50's officials testified that during negotiations before the contract was concluded they had proposed to Equitable that their Union be granted bargaining rights for the new jobs, and that the negotiation clause was incorporated in the contract upon Equitable's agreement to negotiate with District 50 for all these jobs. To bolster this meaning of the clause, these witnesses testified that although District 50's previous bargaining contracts with Equitable had not contained such a clause, the parties had nevertheless in the past negotiated for new classifications added to the distribution department. They reasoned therefrom that it is not likely that the clause was meant to provide for a practice which in the past had been followed as a matter of course without a contract provision, but that the clause was included in contemplation of a new contingency, namely the transfer of jobs from the Philadelphia system. However, District 50's recording secretary, its principal witness at the hearing, testified in effect that in December 1950, during the period of contract negotia- tions, Equitable had refused to accede to District 50's proposal for inclusion in the contract of all the jobs to be transferred, and that Equitable's position was that only jobs assigned to the distribution department were to be covered by the contract. This account of Equitable's stand on this matter, with no evidence in the record that Equitable had altered its position before the contract was concluded, strengthens the testimony of Equitable's officials that the negotiation clause was intended to apply only to jobs within the distribution department, and renders doubtful District 50's broad version of the clause. In any event, it does not follow from District 50's interpretation of the negotation clause that Equitable had contractually abdicated its managerial prerogative of organizing its corporate structure and assigning company operations to departments of its own choosing. We are satisfied that neither this clause nor any other part of District 50's contract deprived Equitable of its managerial right to decide whether the disputed jobs should be incorporated in the purchasing department of the company or in any other department. We find no 432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD merit in District 50's contention that Equitable was committed by the negotiation clause to include the general stores work in question in the distribution department, and to assign the work to employees in that department. Such right as District 50 may have to require the assignment of the disputed work to members of the distribution depart- ment must flow from other provisions of the contract. Implicit in District 50's contentions is the argument that the dis- puted jobs appropriately belong in the unit of distribution department employees for which it is colatractuall)7 the bargaining representa- tive? As the IBEW also claims contract rights for these employees, we view the dispute here presented as essentially a disagreement between two unions as to which of the existing bargaining units appropriately includes the disputed supply jobs. The record does not disclose the precise functions of the distribution department, except that it is referred to as an operating department. Further information as to the nature of its functions may be derived from District 50's contract and the testimony which reveal that the hourly job classifications of this department include equipment mechanic, ditching machine operator, welder, fitter, utility man, ap- pliance man, meter specialist, repairman, and adjuster, main and serv- ice man, and laborers. The record shows also that there are in this department, welding and other repair shops, and that pipes and other materials are trucked to street locations where employees of this department do work of a construction type. It thus appears that the distribution department performs the physical operations incident to the installation and maintenance of supply lines through which Equitable distributes fuel gas to its customers. The distribution department is broken down into several divisions which function in their respective geographic areas, and also includes a machine, gas meter, and appliance shops which perform services for all the divisions of the department. Each division has a supply room which issues materials and equipment for divisional opera- tions. Some materials are shipped directly from supply sources to job locations within the divisions without passing through general stores. Otherwise all stocks for the division supply rooms are requisitioned from the Manchester warehouse, and are usually ordered to fill anticipated needs only for a few weeks. If stocks remain for more than several weeks in the division supply rooms they ale returned to general stores at the Manchester warehouse. Each of these supply rooms has one or more clerks who store and disburse materials and keep stock records. These employees are classified as district clerks A and B, and storekeeper A. * On June 3, 1952, after a meeting of its executive committee, District 50 informed Equitable that if it moved any of the general stores employees into the South Side build- ing "we were going out because we believed that we were the bargaining agents for those jobs coming over there." UNITED MINE WORKERS OF AMERICA 433 The distribution department is headed by a general superintendent who in turn is under the company's assistant vice president in charge, of operations. Each division in the department, as well as the meter shop, is directly under a division superintendent. The purchasing department, as set forth above, was established in October 1951 to perform purchasing, warehousing, and supply func- tions for Equitable which before then had been performed for it by Duquesne at the Manchester warehouse. This department includes, in addition to the general stores division, the printing and stationery division. These divisions furnish supplies to all Equitable depart- ments. The printing and stationery division issues office clerical supplies, and the general stores division stocks and issues approxi- mately 6,500 different items furnished mainly to the distribution de- partment. Approximately 85 percent of the total quantity of these supplies goes to the various distribution department divisions. These divisions requisition all but approximately 5 percent of the separate items stocked by general stores. The work performed by six of the nine employees who currently comprise the total general stores work force is in dispute. These six have the following classifications and duties : A general clerk and an intermediate clerk maintain inventory records and post records of receipt and disbursement of supplies; two warehousemen and a stock- man A physically handle supplies in connection with their receipt, storage, disbursement, and shipment; a stockman C performs assigned laboring tasks. All general stores employees are directly under the general storekeeper. The purchasing agent heads the purchasing department and he in turn is responsible to the company's vice president and general manager. The general stores employees still work at the Manchester ware- house although, as already stated, Equitable has a new facility which was ready to house them in October 1951. This facility consists of two adjoining buildings, one new and the other old, and a sur- rounding yard area. Approximately 70 percent of the first floor space and 7 percent of the second floor space in the new building has been allocated for general stores. Approximately 5 percent of the space in the old building has also been reserved for general stores as well as 75 percent of the yard area which is to be used for storage. The remaining space is already being used by the employees of divi- sion A of the distribution department and by the meter and machine shops of that department. While at present the space within the buildings allocated for general stores employees is not partitioned from areas where distribution department employees work, Equitable intends to erect partitions when the general stores employees will be able to work there. 434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In support of its contention that the disputed general stores jobs appropriately belong in the distribution department unit, District 50 appears to rely on the close functional relation between general stores and the distribution department resulting from the fact that most general stores services are performed for the distribution depart- ment. It stresses the similarity of duties of the disputed general stores employees and employees in the distribution department divi- sion storerooms, and the close physical relation which will exist be- tween general stores and distribution department employees when general stores is finally moved to the South Side facility .8 To mini- mize any apparent differences in the company-wide scope of general stores' activities and the more limited scope of the distribution de- partment's functions, District 50 points to the fact that division A of the distribution department has a shop which fabricates pipe nip- ples used not only by the various divisions of the department, but which are stored at Manchester presumably for company-wide use; also that there is a machine shop in this division which does work for "large industrial installations," presumably outside its departmental limits. Opposed to these factors are the following circumstances favoring the view that the general stores employees do not appropriately be- long in the distribution department unit. That unit is and always has been strictly a departmental unit from which Equitable's other employees are excluded even though they perform functions and have duties substantially like those of employees who are in the unit. Thus, there are division storerooms in other departments, like the division storerooms in the distribution department, manned by em- ployees who are not in the unit.9 As indicated, the general stores employees are in a separate department and are supervised by indi- viduals who are unrelated to the distribution department. Although there is some similarity between functions and duties of these em- ployees and those of the distribution department storeroom employ- ees, there are distinct differences. Thus, general stores services all of Equitable's departments and handles a far greater quantity of stock than any of the division storerooms which keep limited supplies on hand and service only a segment of a single department. We conclude from the foregoing circumstances that there is insuffi- cient basis for finding that the general stores employees necessarily belong in the same unit with distribution department employees. On the other hand, we are satisfied that the general stores employees are appropriately grouped in the unit currently represented by the IBEW with other Equitable employees who like them perform administra- e There are 125 distribution department employees who work at South Side. s There are seven division storerooms in the transportation and production depart- ment, and one division storeroom in the compressing station department. ETHYL CORPORATION 435 tive, management, or nonoperating functions on a company-wide basis. Determination of Dispute On the basis of the foregoing findings of fact and upon the entire record in this case, the Board makes the following determination of dispute, pursuant to Section 10 (k) of the amended Act: 1. The jobs classified as general clerk, intermediate clerk, ware- houseman, stockman A, and stockman C whose duties are related to the performance of supply functions in the general stores division of the purchasing department of Equitable Gas Company, Pittsburgh, Pennsylvania, are included in the unit of employees in departments performing administrative, management, and nonoperating functions presently represented by Local 149, International Brotherhood of Electrical Workers, AFL, and not in the distribution department unit now represented by Local 12050, District 50, United Mine Workers of America. 2. Within ten (10) days from the date of this Decision and Deter- mination of Dispute, Equitable Gas Company, Local 12050, District 50, United Mine Workers of America, and Local 149, International Brotherhood of Electrical Workers, AFL, each may notify the Re- gional Director for the Sixth Region, in writing, of the steps it has taken to comply with the terms of this Decision and Determination of Dispute. MEMBERS HOUSTON and STYLES took no part in the consideration of the above Decision and Determination of Dispute. ETHYL CORPORATION and UNITED ASSOCIATION OF JOURNEYMEN AND APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE UNITED STATES AND CANADA, LOCAL UNION No. 211, AFL, PETI- TIONER ETHYL CORPORATION and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL UNION No. 716, AFL, PETITIONER ETHYL CORPORATION and OIL WORKERS INTERNATIONAL UNION, CIO, PETITIONER ETHYL CORPORATION and SHEET METAL WORKERS INTERNATIONAL AS- SOCIATION, LOCAL UNION No. 54, AFL, PETITIONER. Cases Nos. 39- RC-482, 39-RC-1.83, 39-)?C-485, 39-RC-501, 39-RC-507, and 39-RC-517. November 20,1952 Decision and Direction of Elections Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a consolidated hearing was held before 101 NLRB No. 94. 242305-53-29