Northern Indiana Public Service Co.

In the Matter of NORTHERN INDIANA PUBLIC SERVICE COMPANY and DISTRICT 50, UNITED MINE WORKERS OF AMERICA Case No. R-6525.-Decided July 20, 19/x; Mr. Leon A. Rosell, for the Board. Mr. R. Stanley Anderson, of Hammond, Ind., for the Company. Mr. Vernon Ford, of Chicago, Ill., for the U. M. W. Mr. Frank S. Pryor, of Frankfort, Ind., Messrs. Dennis A. Manning and Samuel Guy of Chicago, Ill., Mr. Elmer A. Johnson, of Indian- apolis, Ind., Mr. Sidney Moffatt, of Gary, Ind., and Mr. Wilmer E. Bodeker, of Fort Wayne, Ind., for the I. B. E. W. Miss Melvern R. Krelow, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon petition duly filed by District 50, United Mine Workers of America, herein called the U. M. W., alleging that a question affecting commerce had arisen concerning the representation of employees of Northern Indiana Public Service Company, Hammond, Indiana, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before Charles E. Persons, Trial Examiner. Said hearing was held at Chicago, Illinois, on June 11 and 12, 1943. The Company, the U. M. W., and Inter- national Brotherhood of Electrical Workers, A. F. of L., Local B-9, herein called the I. B. E. W., appeared, participated, and were afforded full opportunity to be heard, to examine and cross- examine witnesses, and to introduce evidence bearing on the issues. At the close of the hearing, the Company moved to strike from, the record all testimony which pertained to proposed changes in the unit as orig- inally contended for by the U. M. W. on the ground that it had not been put on notice that such proposed changes would be requested' I In its petition the U M. W. set forth the appropriate unit as "all product:,n, main- tenance and distribution workers." At the hearing it in effect amended its petition to Include meter readers, and to exclude certain employees on the ground that they are sups i visory. 51 N. L. R. B., No. 92. 500 NORTHERN INDIANA PUBLIC SERVICE 'COMPANY 501 The Trial Examiner referred the motion to the Board. We find the Company's contention to be without merit, and hereby deny the motion. Also at the close of the hearing, the I. B. E. W. moved that it be certified as the exclusive bargaining representative of the Com- pany's employees, or in the alternative that the petition be dismissed on the grounds that the U. M. W. has lost membership among the employees since a consent and a run-off election were held on March 17 and April 10, 1942, respectively, and that the U. M. W. does not represent a sufficient majority of the employees to disturb a collective bargaining contract between the Company and the I. B. E. W., which the I. B. E. W. contends has not been terminated by either the Com- pany or itself. The Trial Examiner referred the motion to the Board. For reasons hereinafter set forth, we hereby deny the motion. The Trial Examiner's rulings made at the hearing are free from preju- dicial error and are hereby affirmed. All parties were afforded 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 Northern Indiana Public Service Company, an Indiana corporation, is a public utility and is engaged in furnishing and supplying elec- tricity, gas and water in the northern portion of the State of Indiana. During 1942, the Company's gross revenue was $26,113,846, of which $659,485 was derived from the sales of -electrical and gas appliances. During the same period, the Company purchased electrical and gas appliances for resale purposes, 83 percent of which was shipped to the Company from points outside the State of Indiana. The Company operates 19 district offices, the principal office of which is located in Hammond, Indiana; Other district offices are respectively located in Fort Wayne, Crown Point, Gary, Michigan City, Valparaiso, South Bend, and Elkhart, Indiana. II. THE ORGANIZATIONS INVOLVED District 50, United Mine Workers of America, is an unaffiliated labor organization admitting to membership employees of the Company. International Brotherhood of Electrical Workers, Local B-9, is a labor organization affiliated with the American Federation of Labor admitting to membership employees of the Company. IH. THE QUESTION CONCERNING REPRESENTATION The I. B. E. W. and the Company have had written collective bargaining agreements since May 1, 1937. On March 17, 1942, the 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company, the U. M. W., and the I. B. E. W. entered into a consent election agreement. Pursuant to that agreement an election was held on March 17, 1942, and a run-off election on April 10, 1942. The I. B. E. W. won the run-off election, and on May 1, 1942, the Company and the I. B. E. W. entered into a collective bargaining agreement for 1 year, to continue in full force and effect from year to year there- after unless written notice is given by either party on -or before sixty (60) days prior to the annual expiration date, "requesting that the agreement be amended or cancelled." On February 27, 1943, the I. B. E. W. addressed a letter to the Company notifying it that the I. B. E. W. desired "to discuss and review several amendments, wage scales and working rules." The letter further stated that the proposed amendments were being drafted and would be submitted later. On March 8, 1943, the U. M. W. wrote the Company that it repre- sented a majority of its employees, and requested recognition as the exclusive bargaining representative of the employees. On March 11, 1943, the Company addressed a letter to the I. B. E. W. calling attention to the conflicting claims of the U. M. W. which it stated "must be resolved before collective bargaining can proceed." On the same date, the Company wrote the U. M. W. calling attention to its contract with the I. B. E. W., and suggested that the U. M. W. either furnish proof of its majority position or submit the matter to the Board for determination. On March 18, 1943, the U. M. W. notified the Company that it was submitting the matter to the Board, and on March 22, 19435 it filed the petition herein. As heretofore stated, the I. B. E. W. contends, in effect, that the contract dated May 1, 1942, is a bar to an investigation of representa- tives. From the facts hereinabove set forth, it clearly appears that the contract was not automatically renewed, and we find that this con- tract is not a bar to an investigation of representation. A statement prepared by the Regional Director, introduced in evi- dence at the hearing, indicates that the U. M. W. represents a sub- stantial number of employees in the unit hereinafter found to be appropriate 2 We find that a question affecting commerce ' has arisen concerning the representation of employees of the Company, within the meaning 2 The Regional Director reported that the U. M. W submitted 403 designations bearing apparently genuine signatures . Of the 403 designations submitted , 360, 310 dated between January and April 1943, and 50 undated, bear the names of persons whose names appear on the Company's pay roll of April 1, 1943. This pay roll contains the names of 964 em- ployees It appears from the record, however, that there are approximately 950 employees in the unit. At the hearing the U M W submitted 53 additional cards, all bearing appar- ently genuine signatures , 31 of which bear the names of employees on the Company's pay roll of April 1, 1943. At the hearing, the financial secretary of the I. B. E W. stated that approximately 950 .employees were dues-paying members. ' NORTHERN INDIANA PUBLIC SERVICE COMPANY 503 of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. IV. TEE APPROPRIATE UNIT The parties are in agreement that the appropriate unit should com- prise the production, maintenance and distribution employees, and that the office and clerical employees, and certain supervisory em- ployees, who are excluded from the contract between the I. B. E. W. and the Company, should be excluded. The U. M. W. desires to in- elude approximately 58 meter readers, who are excluded from the con- tract, and to exclude 77 employees classified as supervisory, who are covered by the contract. The Company and the I. B. E. W. desire that the appropriate unit be defined strictly in accordance with the coverage of their contract. The meter readers employed by the Company are assigned to dis- tricts, and their duties consist of reading water, gas, and electric meters and of checking-their readings. When they verify their read- ings they submit their reports to the chief meter reader. The meter readers are under the general supervision of the chief clerk. These employees may be promoted to positions in the clerical department, or to positions in the operating or construction groups. From the fore- going facts, we conclude that the work performed by the meter readers is more closely allied with that of clerical employees than with that of the employees in the production, maintenance and distribution depart- ments. For this reason, and since they have not been covered by the contract, we shall exclude meter readers from the unit. The 77 employees classified as supervisory, referred to above,' re- ceive orders from their superiors, transmit these orders to small gangs, direct operation, account for materials, report on the progress of operations, maintain the time record of the, crews, and are expected to maintain discipline by carrying out the Company's policies and requiring the observance of working rules. They do not have the authority to hire or discharge, to promote, to permit lay-offs, or to recommend such action. As stated above, they have been covered by the contract, and the parties thereto desire their inclusion. From the foregoing, it appears that these employees should be included in the unit. Our inclusion of them, however, is dependent upon whether or not they fit the definition of supervisory employees hereinafter set forth. 3 Mechanical and electrical supervisor , line foremen , gas street department foremen, electrical distribution department foremen, electric line department foremen, frequency change department field foreman , water department service foremen , gas meter repair foreman , transportation department mechanic foreman, street department fitter foremen„ street department foremen, chief water plant attendant, gas foreman , meter foreman, gas street department assistant foreman , garage foreman, gas distribution department fore- men, electrical distribution department working foreman , gas and water foreman, watch engineers , and coal handling foreman. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find that all production, maintenance, and distribution employees of the Company, excluding clerical and office employees, meter readers, and supervisory, employees of the Company with authority to hire, promote, discharge, 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 mean- ing of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of our Direction of Elec- tion herein, subject to the limitations and additions set forth in said Direction. A dispute has arisen with respect to certain employees classified as "temporary" employees. The Company is obligated to maintain the employment status of employees called into the armed forces of the United States, and substitute employees are designated by the Com- pany as "temporary." However, their tenure is "for the duration." It is obvious that these so-called temporary employees should be en- titled to vote. Other employees are classified as "temporary" because the Company has relaxed its rule that married women and relatives are not to be employed. It appears from the record that most of the married women presently in the employ of the Company probably fall within the category of clerical employees and should not be in-+ eluded in the unit. However, we conclude that "relatives" and married women, who are properly within the definition of the unit, are eligible to vote. The Company has in its employ approximately 25 high school students, who were employed for the summer and were so em- ployed by the Company with the expectation that they in all proba- bility will return to school in the fall. We conclude that these employees are not eligible to vote. DIRECTION OF ELECTION By virue 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 Rela- tions Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Northern Indiana Public Service Company, Hammond, Indiana, an election by secret ballot shall be conducted as early as possible, but not later than thirty NORTHERN INDIANA PUBLIC SERVICE COMPANY 505 (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Thirteenth 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 unit found appropriate 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 vaca- tion 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 any who have since quit or been discharged for cause, to determine whether they desire to be represented by, District 50, United Mine Workers of America, or by International Brother- hood of Electrical Workers, A. F. of L., Local B-9, for the purposes of collective bargaining, or by neither.