Consumers Power Co.

In the Matter of CONSUMERS POWER COMPANY and INTERNATIONAL BRO'T'HERHOOD OF ELECTRICAL WORKERS, LOCAL 876 Case No. R-1004 SUPPLEMENTAL DECISION AND AMENDMENT TO SECOND DIRECTION OF ELECTION March 4, 1940 On November 8, 1938, the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election 1 in the above-entitled proceedings. On November 23, 1938, and on December 22, 1938, the Board issued Amendments to its Decision and Direction of Election.2 The Direction of Election, as amended, directed the Regional Director for the Seventh Region, acting as agent for the Board, and subject to National Labor Relations Board Rules and Regulations-Series 1, as amended, to conduct an election by secret ballot among all employees of Consumers Power Company, herein called the Company, excluding general and assistant foremen, plant supervisors, crew foremen, and other supervisory employees except as expressly included below, office employees, office building janitors and watchmen, collectors, connected load inspectors, electrical, mechanical, and civil engineers, efficiency men and junior engineers, draftsmen, surveyors, chemists, architects, temporary common labor- ers hired for a specific job and for not more than 6 months, part- time local servicemen and local servicemen who do not perform mechanical work in the regular course of employment, and store- keepers with supervisory powers who do not ordinarily do mechanical work, but including load dispatchers, meter readers and bill dis- tributors, plant janitors and watchmen, and storekeepers other than those excluded above, who were on the pay roll of the Company for the pay-roll period next preceding August 29, 1938, except those who had since quit or been discharged for cause, to determine whether they desired to be represented by International Brotherhood of Electrical Workers, Local 876, herein called I. B. E. W., or by Utility Workers 19 N. L. R. B. 742. 2 9 N. L R B 751; 10 N . L R B. 780 21 N. L. R. B, No. 12. 90 CONSUMERS POWER COMPANY 91 Organizing Committee, herein called U. W. O. C., for the purposes of collective bargaining, or by neither. The Direction, as amended, provided for the holding of the election within 70 days of the date of the original Decision and Direction of Election. Pursuant to said Direction of Election, as amended, the Regional Director conducted an election by secret ballot from January 10 to January 13, 1939. On January 21, 1939, the Regional Director caused to be served on the parties his Intermediate Report on the conduct of the ballot. No exceptions to the Intermediate Report were filed by any of the parties. As to the results of the secret ballot, the Regional Director re- ported the following: Total number of employees eligible ------------------------ 2, 977 Total number of ballots cast------------------------------ 2,806 Total number of votes for International Brotherhood of Electrical Workers, Local 876---------------------------- 1,072 Total number of votes for Utility Workers Organizing Committee --------------------------------------------- 1, 164 Total number of votes for neither- ------------------------ 506 Total number of challenged ballots------------------------- 52 Total number of blank ballots------------------------------ 1 Total number of void ballots ------------------------------- 11 On March 1, 1939, the Board issued a Supplemental Decision and Second Direction of Election in the above-entitled proceedings.' The Second Direction of Election provided for a run-off election in which the employees described in the original Direction of Election should indicate whether or not they desired to be represented by U. W. O. C. for the purposes of collective bargaining.4 On April 4, 1939, I. B. E. W. petitioned the United States Circuit Court of Appeals for the Sixth Circuit to review and set aside the said Supplemental Decision and Second Direction of Election. In its petition I. B. E. W. prayed the Court that pending such review, the Supplemental Decision and Second Direction of Election be stayed. This request of the I. B. E. W. for a stay was granted by the Court on April 10, 1939. Further action by the Board in this proceeding was consequently halted. On June 28, 1939, the Sixth Circuit Court of Appeals issued its decision in which it ordered that the Board's Second Direction of Election be set aside.5 On October 9, 1939, the United States Supreme Court granted the petition for certiorari filed by the Board, and on January 2, 1940, issued its decision reversing the decision of the 811 N. L R. B. 848. 4 See 11 N. L. R . B. at pp . 849-850 for a description of the steps taken by the parties and by the Board prior to the issuance of the Supplemental Decision and Second Direction of Election. 6105 F. (2d) 598. 92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Sixth Circuit Court of Appeals.° Upon receipt of the mandate of the Supreme Court, the Sixth Circuit Court of Appeals, on February, 14, 1940, issued its decree vacating and revoking the order of April 10, 1939, staying-the Board's Second Direction of Election, and the Court's decision and order of June 28, 1939, granting the I. B. E. W.'s petition to set aside the Board's Second Direction of Election. On January 29, 1940, I. B. E. W. filed a petition with the Regional Director of the Seventh Region (Detroit, Michigan) alleging that a question affecting commerce had arisen concerning representation of employees of the Company in "what is now known as the Adrian Division of the Consumers Power Company. This Division was formerly The Citizens Light & Power Company, with headquarters in Adrian, Michigan." 7 The Citizens Light & Power Company is herein called the Adrian Company. On February 16, 1940, the Board issued a Notice, which was served upon the Company, I. B. E. W., and U. W. O. C., that on February 28, 1940, or as soon thereafter as might be convenient, unless cause to the countrary should appear, the Board would amend its Supple- mental Decision and Second Direction of Election of March 1, 1939, so as to provide for the holding of an election within 45 days of date of the Amendment among the employees of the Company in the appropriate unit which had been previously found by the Board who were on the pay roll of the Company for the pay-roll period next preceding the date of the Amendment. The parties were notified that objections to such an Amendment, and argument in support thereof, could be filed with the Board on or before February 28, 1940. Certain alleged facts concerning the present personnel of the Com- pany are recited in letters addressed to the Board and its regional office for the Seventh Region from various persons representing parties to this proceeding. Thus it is alleged that as of January 1, 1940, there were 384 employees on the pay roll of the Company within the appropriate unit found by the Board who were not on the pay roll on August 29, 1938; that these 384 employees included 75 to 85 employees formerly employed by the Adrian Company; and that 329 employees who were on the pay roll of August 29, 1938, have since that date been permanently severed from the Company's pay roll. In response to the Board's notice of February 16, 1940, I. B. E. W. filed a statement of objections and argument on February 28, 1940. Therein it contended (1) that the amendment proposed in the Notice in so far as it would change the pay-roll date for determining eligi- bility to vote in the election was proper; (2) that in the forthcoming election I. B. E. W. and any other labor organization claiming to represent employees of the Company should be included on the ballot; 60 Sup. Ct. 306. v Case No. VII-R-284. This petition has this day been dismissed by the Board. 'CONSUMERS POWER COMPANY 93 and (3) that crew foremen and other supervisors should be included in the appropriate unit.8 1. B. E. W. stated further that if its con- tentions were adopted it would withdraw its petition concerning the Adrian employees. It further requested opportunity to argue orally before the Board in support of its objections and argument. This request for oral argument is hereby denied. By letter dated February 16, 1940, counsel for U. W. 0. C. re- quested the Board to direct the holding of a run-off election, with the U. W. 0. C. as the only union on the ballot. It was likewise requested that the election be conducted on the basis of the same eligibility list as was used in the first election. Subsequently, the Board received a letter from counsel for U. W. 0. C. asking that the letter of February 16 be disregarded. By letter dated February 26, 1940, U. W. 0. C. objected to the petition concerning the Adrian employees filed by the I. B. E. W. and requested that that petition be dismissed on the ground that the elec- tion previously ordered by the Board, as well asp that proposed in the Notice of February 16, 1940, contemplated an employer-wide election.9 It likewise requested opportunity to be heard in opposition to the petition if the Board decided to entertain it. No response to the Board's notice of February 16, 1940, has been filed by the Company. 1. The question of the eligibility date.-In its Notice of February 16, 1940, the Board announced its intention of determining eligibility to vote in the coming election on the basis of the pay-roll period next preceding the date of the forthcoming Amendment to the Supple- mental Decision and Second Direction of Election of March 1, 1939, rather than on the basis of the, pay-roll period next preceding Au- gust 29, 1938, the basis for the first election and originally for the run-off election. I. B. E. W., as noted above, has expressed itself as favoring the use of the later eligibility date and the opposition of U. W. 0. C. to that procedure appears to have been withdrawn 10 While no formal record has been made showing the exact extent of the changes, if any, in the Company's personnel within the appro- priate unit, we take notice of the probability of the occurrence of such changes during the period of more than 18 months which have elapsed since August 29, 1938, as well as the apparent agreement of the parties that such changes have occurred. Under these circum- stances, in order to secure results from the coming election which will 6 The question of inclusion of crew foremen and other supervisors in the appropriate unit was fully considered by the Board prior to the holding of the first election No new considerations are advanced at the present time by I. B. E. W. in support of its conten- tion. Consequently, the matter is not considered at further length herein 9 In the hearing which was held in this proceeding before a Trial Examiner of the Board, all parties stipulated the appropriateness of a system-wide unit 10 In a letter from the Company to the Regional Director for the Seventh Region, the Company indicated that it was likewise in favor of the use of the later eligibility date. 94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accurately disclose the desires of the body of the employees who will be represented, during the period following the election, by the labor organization, if any, which is chosen in the election, we shall adhere to the eligibility date announced in the Notice of February 26, 1940. 2. The question of including I. B. E. W. on the ballot.-The Notice of February 26 likewise announced the Board's intention of leaving unchanged the form of the ballot in the coming election, whereby the employees would vote for or against U. W. O. C. Objection is voiced by I. B. E. W., which contends that in view of changes in the Com- pany's personnel and particularly in view of the change in eligibility date, it should not be excluded from the ballot on the basis of the results of the first election. The occurrence, however, of the delay in the holding of the run-off election was due solely to the order issued by the Sixth Circuit Court of Appeals staying the Board's proceedings in this matter. This order was sought and procured by I. B. E. W. The occurrence of changes in personnel between the dates of the first election and the run-off election is thus attributable solely to that union. I. B. E. W. is consequently not in a position at this time to claim benefits on the basis of a delay brought about by its own efforts. Other reasons given by I. B. E. W. for its inclusion on the ballot have been previously considered by the Board." We therefore adhere to the decision previously made in our Supplemental Decision and Second Direction of Election of March 1, 1939, to permit the em- ployees of the Company to choose whether or not they wish to be represented by U. W. O. C. AMENDMENT TO SECOND DIRECTION OF ELECTION The Second Direction of Election issued on March 1, 1939, is hereby amended (1) by substituting for the words "within forty-five (45) days from the date of this Direction," the words "as early as possible but not later than forty-five (45) days from the date of the Amendment to this Second Direction of Election," (2) by substitut- ing for the words "said Rules and Regulations," the words, "Na- tional Labor Relations Board Rules and Regulations-Series 9," and (3) by substituting for the words "next preceding August 29, 1938, except those who have since quit or been discharged for cause," the words "next preceding March 4, 1940, except those who have quit or have been discharged for cause since that date." MR. WILLIAM M. LEISERSON took no part in the consideration of the above Supplemental Decision and Amendment to Second Direction of Election. 3111 N. L. R. B. at p. 850.