Interstate Water Co.

In the Matter of INTERSTATE WATER COMPANY and LOCAL 146, UTILITY WORKERS ORGANIZING COMMITTEE, AFFILIATED WITH THE COMMIT- TEE FOR INDUSTRIAL ORGANIZATION Case No. B-1111.-Decided February 17, 1939 Water Filtering and Distributing Industry-Investigation of Representatives: controversy concerning representation of employees : at expiration of contract between employer and one union , employees shifted to another union ; employer willing to recognize union certified by Board-Unit Appropriate for Collective Bargaining : production and maintenance employees , excluding clerical, office, and supervisory employees ; no controversy as to-Representatives : proof of choice : membership in union ; membership cards checked against pay roll- Certification of Representatives : upon proof of majority representation. Mr. Hyman A. Sehulson, for the Board. Mr. W. M. Acton, of Danville, Ill., for the Company. Mr. John J. Brownlee, of Chicago, Ill., for the U. W. O. C. Mr. John E. Stipp, of Danville, Ill., for the Operating Engineers. Miss Edna Loeb, of counsel to the Board. DECISION AND CERTIFICATION OF REPRESENTATIVES STATEMENT OF THE CASE On June 14, 1938, Local 146, Utility Workers Organizing Commit- tee, affiliated with the Committee for Industrial Organization, herein called the U. W. O. C., filed with the Regional Director for the Thir- teenth Region (Chicago, Illinois), a petition alleging that a question affecting commerce had arisen concerning the representation of em- ployees of Inter-State Water Company,' Danville, Illinois, herein called the Company, and requesting an investigation and certification of representatives, pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On October 20, 1938, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series i The record shows that this is the correct designation of the Company. 11 N. L. R. B., No. 39. 417 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On October 27, 1938, the Regional Director issued a notice of hear- ing, copies of which were duly served upon the Company, the U. W. O. C., and International Union of Operating Engineers, Local Union No. 966, herein called the Operating Engineers, a labor organi- zation claiming to represent employees directly affected by the investigation. Pursuant to the notice, a hearing was held at Dan- ville, Illinois, on November 3, 1938, before J. J. Fitzpatrick, the Trial Examiner duly designated by the Board. The Board, the Company, the U. W. O. C., and the Operating Engineers were represented by counsel and participated in the hearing. At the beginning of the hearing, International Union of Hod Carriers, Builders and Com- mon Laborers, Local Union No. 624, herein called the Hod Carriers, appeared by counsel and made a motion for leave to intervene on the ground that any decision by the Board in this proceeding would dis- turb the relationship of the Hod Carriers with the Company under the terms of an alleged agreement with the Company. Although afforded opportunity to do so, the Hod Carriers failed to produce any evidence of the existence of such agreement,2 however, and the motion was denied by the Trial Examiner for that reason and also for the reason that the Hod Carriers did not claim to represent any indi- viduals then in the employ of the Company and directly affected by the investigation. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. On November 12, 1938, the Operating Engineers filed a brief in which it argued that the Company was engaged in intrastate com- inerce and that the Board, therefore, did not have jurisdiction over the Company. On the same date, the Hod Carriers filed a brief in which it likewise argued that the Board lacked jurisdiction to deter- mine the questions arising in this proceeding, and further contended that the Trial Examiner erred in denying the Hod Carriers' motion to intervene. Pursuant to notice duly served on all the parties to the proceeding and on the Hod Carriers, a hearing for the purpose of oral argument was held before the Board at Washington, D. C., on January 19, 1939. The U. W. O. C. and the Hod Carriers ap- peared by counsel and participated in the oral argument. The Hod Carriers filed a supplemental brief and asked to introduce evidence in support of its claim that it should have been permitted to inter- vene in the proceeding. The Board advised it that it might file a formal written motion to reopen the record for the purpose of intro- 2 Howard M. Ely, the Company's general superintendent, testified that the Company had no contract with any labor organization at the time of the hearing. INTERSTATE WATER COMPANY ET AL. 419 ducing such evidence. No such motion has been filed. The Board has considered all the briefs. The Board has also reviewed the rul- ings of the Trial Examiner on motions and on objections to the admission of evidence and finds that no prejudicial errors were com- mitted. The rulings are hereby affirmed. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY The Company is a Maine corporation licensed to do business in Illinois, with its plant, principal place of business, and properties located in and about D°nville, Illinois. It is engaged in pumping, filtering, purifying, and distributing water for commercial and domestic use in Danville, Tilton, and Westville, Illinois. The total volume of water distributed by the Company in 1937 was 1,668,127,960 gallons, from which the Company derived a gross income of $277,132.04. Approximately 25 per cent of the Company's total volume of water distributed, amounting in value to approxi- mately 14 per cent of its gross revenue, was consumed by four inter- state railroad companies, namely, the Chicago, Milwaukee, St. Paul & Pacific Railroad Company, the New York Central System (Peoria & Eastern, C. C. & St. L., N. Y. C.), the Chicago & Eastern Illinois Railway Company, and the Wabash Railway Company. The water, delivered to the railroad companies through meters located on their property in Illinois, was used by them to generate steam in their locomotives and in the boilers in their local railway shops, and was also used by them in processing and for sanitary and drinking pur- poses in these shops.8 Approximately 14 per cent of the Company's total volume of water, amounting in value to approximately 12 per cent of its gross revenue, was distributed by the Company to 75 industrial concerns, including the Illinois-Iowa Power Company, located in the vicinity of Danville. Thirty-five per cent of these industrial customers are engaged in interstate commerce. Since there is no local water supply other than that furnished by the Company, a suspension or discontinuance of the Company's services due to labor disputes would burden and hinder the railroad companies,4 and seriously inconvenience the Company's industrial customers, in the conduct of their activities in interstate commerce. A cessation of the $ The Wabash Railway Company maintains no local shops. 4 Danville is a regular watering place for the railroad companies . All of them have tanks in or near Danville, at which their locomotives stop in transit to secure water for the generation of steam power. The raihoad companies are entirely dependent upon the Company for the maintenance of these watering facilities. There are other water tanks on the railway routes a number of miles from Danville, but there is no evidence in the record that these tanks are adequate substitutes for the tanks supplied by the Company. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Company's operations would undoubtedly likewise work a hardship on other customers of the Company, namely, the United States Post Offices located in Danville, Tilton, and Westville, Illinois, the West- ern Union Telegraph Company, the Illinois Bell Telephone Company, and Radio Station WDAN, which are located in Danville, Illinois, and the Danville Commercial-News, a newspaper which is circulated in Illinois and Indiana. In 1937 the Company's total purchases of raw materials, con- sisting chiefly of pipe, pipe fittings, valves, valve parts, valve boxes, hydrants, hydrant parts, meters, lime, chlorine, nuchar, leadite, and hemp, for use in connection with its distribution system, amounted to approximately $35,514.36 in value. Approximately 24 per cent of these materials were purchased outside of Illinois. II. THE ORGANIZATIONS INVOLVED Local 146, Utility Workers Organizing Committee, is a labor organ- ization affiliated with the Committee for Industrial Organization, admitting to membership employees of the Company. International Union of Operating Engineers, Local Union No. 966, is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION On January 21, 1937, the Company entered into a written agree- ment with the Operating Engineers as the representative of the Com- pany's employees, with a verbal understanding that the agreement was to be effective for 1 year from the date of its execution. Upon the expiration of the contract in January 1938, the Company and the Operating Engineers were unable to agree upon the terms of a new contract and shortly thereafter a number of the Company's employees decided to transfer their allegiance to the U. W. O. C. In April 1938 several employees informed Howard M. Ely, general superintendent of the Company, that a majority of the employees were going to affiliate with the U. W. O. C. and asked him whether the Company would bargain with that organization. After having discussed the matter with D. H. Long, president of the Company, Ely advised the employees that the Company would bargain with any union certified by the Board as the representative of a majority of its employees. The U. W. O. C. secured its local charter on June 6 and on June 14 filed with the Regional Director its petition for investigation and certification of representatives. On June 30 representatives of the Board, the Company, the U. W. O. C., and the Operating Engineers held a conference, apparently for the purpose of arranging an election upon consent of the parties to obviate the INTERSTATE WATER COMPANY ET AL. 421 necessity for any formal hearing upon the petition. No such election was arranged, however, for the Operating Engineers raised a question regarding the Board's jurisdiction over the Company. We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, transportation, communication, and com- merce among the several States, and tends to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE APPROPRIATE UNIT The Company and the U. W. O. C. stipulated that the production and maintenance employees of the Company, excluding clerical, office, and supervisory employees, constituted a unit appropriate for the purposes of collective bargaining.5 The propriety of such unit was not disputed by the Operating Engineers. We see no reason to modify the unit agreed upon by the parties. A question has arisen, however, regarding the inclusion in the unit of Mrs. Dora Symons, who is employed in the Company's pump- ing station laboratory and office. Mrs. Symons' duties consist of making bacteriological tests to determine the purity of the water and of keeping the necessary records in connection with these tests. Although the performance of such work does not require the skill of a trained chemist, it requires training in chemistry and laboratory work. We find that Mrs. Symons is not a production or maintenance employee and we will exclude her from the bargaining unit. We find that the production and maintenance employees of the Company, excluding clerical, office, and supervisory employees, coll- stitute a unit appropriate for the purposes of collective bargaining and that said unit will insure to the employees of the Company the full benefit of their right to self-organization and to collective bar- gaining and otherwise effectuate the policies of the Act. VI. THE DETERMINATION OF REPRESENTATIVES A pay-roll list of the Company's employees as of October 31, 1938, was introduced into evidence. It shows that on that date there were 34 employees in the appropriate unit. The U. W. O. C. introduced 5 The Trial Examiner granted a motion by counsel for the U. W. O. C to amend the petition so that the unit alleged to be appropriate therein conformed to the stipulated unit 1642275-39-vol xi--28 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD into evidence 22 membership cards. The genuineness of the signa- tures on the cards was not questioned by any party to the proceeding, and the U. W. O. C.'s financial secretary and treasurer testified that he had personally witnessed the signing of the cards and knew the employees whose names appeared thereon. We have checked these cards against the pay-roll list and find that 21 of the 34 employees in the appropriate unit have designated the U. W. O. C. as their collec- tive bargaining representative. We find that the U. W. O. C. has been designated and selected by a majority of the employees in the appropriate unit as their represent- ative for the purposes of collective bargaining. It is, therefore, the exclusive representative of all the employees in such unit for the purposes of collective bargaining, and we will so certify. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of Inter-State Water Company, Danville, Illi- nois, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. The production and maintenance employees of the Company, excluding clerical, office, and supervisory employees, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. 3. Local 146, Utility Workers Organizing Committee, is the exclu- sive representative of all the employees in such unit for the purposes of collective bargaining, within the meaning of Section 9 (a) of the National Labor Relations Act. CERTIFICATION OF REPRESENTATIVES By virtue of and pursuant to the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 1, as amended, IT IS HEREBY CERTIFIED that Local 146, Utility Workers Organizing Committee, has been designated and selected by a majority of the production and maintenance employees. of Inter-State Water Com- pany, Danville, Illinois, excluding clerical, office, and supervisory em- ployees, as their representative for the purposes of collective bargain- ing, and that pursuant to the provisions of Section 9 (a) of the Act, Local 146, Utility Workers Organizing Committee is the exclusive representative of all such employees for the purposes of collective bargaining in respect to rates of pay, wages, hours of employment, and other conditions of employment.