Consumers Power Co.

In the Matter Of CONSUMERS POWER COMPANY and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 876 Case No. R-1004 Investigation and Certification of Representatives A question concerning representation, which Board previously found to have arisen, held still undetermined where Company refuses to grant recognition to either of rival unions, although a request therefor was made since the first hearing in the case, and where the Company is dealing with each union as representative of its members under "interim grievance plans" negotiated with the two unions. Laid-oft employees who had seutointy rights under the terms of contiacts between the Company and the two unions held eligible to vote although there was little likelihood of expansion of Company's personnel since such em- ployees who might wish to claim reinstatement in case of normal turnover had an interest in the selection of collective bargaining agents through whom such claims might be made. Seasonal groups of employees, one group laid off during the winter, the other in the summer, whose employment has been sufficiently regular to at- tain seniority status under provisions made for laid-off employees held eligible to vote. Prior election declared to be of no further effect because of lapse of 17 months and a new election ordered, with the names of both unions and a space for "neither" on the ballot, rather than a run-off election with only the names of the two unions. Unit Appropriate for Collective Bargaining : adlietence to former decision ex- cluding crew foremen and other supervisory employees. Activities of some of the members of the group of supervisory employees in the furtherance of the Company's unfair labor practices held not to have so affected the whole group, as to warrant exclusion from unit of former members after their demotion to eligible classifications. SUPPLEMENTAL DECISION AND DIRECTION OF SECOND ELECTION STATEMENT OF THE CASE July 10, 1940 On November 8, 1938, the National Labor Relations Board, herein called the Board , issued a Decision and Direction of Election 1 in 19 N. L. R. B.'742. 25 N. L. R B., No. 36 280 CONSUMERS POWER COMPANY 281 this proceeding. The Direction of Election, as amended on Novem- ber 23, 1938, and on December 22, 1938,2 directed the Regional Di- rector 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 Com- pany, excluding general and assistant foremen, plant supervisors, crew foremen, and other supervisory employees except as expressly in- cluded 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 laborers hired for a specific job and for not more than 6 months, part-time local service men and local service men who do not perform mechanical work in the regular course of employment, and storekeepers with supervisory powers who do not ordinarily do mechanical work, but including load dispatchers, meter readers and bill distributors, 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 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 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 reported the following : Total number of employees eligible------------------------- 2, 977 Total number of ballots cast------------------------------- 2,806 Total number of votes for International Brotherhood of Elec- trical Workers, Local 876-------------------------------- 1,072 Total number of votes for Utility Workers Organizing Com- mittee---------------------------------------------- 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 2 9 N. L. R. B 751; 10 N. L R. B. 780. 282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In accordance with its practice then in effect, the Board, on March 1, 1939, issued a Supplemental Decision and Second Direction of Election 3 which provided for a run-off election in nhich the employees described in the original Direction of Election as amended were to vote whether or not they,desired to be represented by U. W. O. C. for the purposes of collective bargaining. The holding of this run-off election was prevented by proceedings commenced in the United States Circuit Court of Appeals for the Sixth Circuit by I. B. E. W.4 Upon the termination 'of these proceedings, the Board, on March 4, 1940, issued a Supplemental Decision and Amendment to Second Direction of Election" in which it provided that an election be held as directed in the Second Direction of Election of March 1, 1939, except that eligibility to vote in such election should be based on the pay roll of the Company next preceding March 4, 1940, rather than on the pay roll originally specified. On April 5, 1940, the Board issued a Supplemental Decision and Order in which it vacated the Second Direction of Election, as amended, and reopened the record for the purpose of taking ad- ditional evidences This action was prompted by the fact that the Board had theretofore reconsidered its policy as to run-off elections and had held that, in circumstances similar to those presented by the first election held herein, the ballot in a run-off election should contain the .names of the two unions involved, omitting the space for "neither." 7 In view of the further fact that large-scale changes in the personnel of the Company were alleged to have taken place, the Board ordered that a further hearing be held for the purpose of ascertaining the current state of facts bearing on the issues raised in this- proceeding. It stated that after such a hearing was held it would determine whether to hold a run-off election in accordance with the new policy enunciated in the Le Blond case, or to hold a new election with the names of both unions and also a space for voting for neither on the ballot. It stated further that it would consider any other issues which might be raised at the hearing. Pursuant to the Order, and to a notice of hearing, copies of which were duly served upon the parties, a hearing was held on May 1, 1940, at Detroit, Michigan, before Earl S. Bellman, the Trial Ex- aminer duly designated by the Board. The Board, the Company, I. B. E. W., and U. W. O. C. were represented by counsel and par- ticipated in the hearing. Full opportunity to be heard, to examine 811 N. L. R. B. 848. 4 International Brotherhood of Electrical Workers v. National Labor Relations ' Board, 105 F. (2d) 598; rev'd, 308 U S. 413. 521N L.R B. 90 6 22 N. L R. B. 726. 'Matter of R K Le Blond Machine Tool Co., Cincinnati Electrical Toot Co and Inch pendent Empldyees Organazatson, 22 N. L. R B. 465 CONSUMERS POWER COMPANY 283 and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the commencement of the hearing the Company renewed a motion previously made to dismiss the proceeding on various juris- dictional and' constitutional grounds. The Trial Examiner reserved decision on this motion. The motion is hereby denied. During the course of the hearing, U. W. O. C. renewed its Petition for Ruling on Eligibility and for Subpena previously made, which had been denied by the Board without prejudice." This motion is hereby denied The Board has reviewed the rulings of the Trial Examiner on objec- tions to the admission of evidence, made during the hearing, and finds that no prejudicial errors were committed. The rulings are hereby affirmed. Pursuant to a notice of hearing, copies of which were duly served upon the parties, a hearing was held before the Board in Washington, D. C., on May 21,1940, for the purpose of oral argument. I. B. E. W. and U. W. O. C. were represented by counsel and participated in the argument. The Company, I. B. E. W., and U. W. O. C. filed briefs which the Board has duly considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT io I. THE QUESTION CONCERNING REPRESENTATION Since the first hearing in this case held on August 29 and 30, 1938, the Company has been requested by U. W. O. C. to grant it exclusive recognition for the purposes of collective bargaining. The Company has refused to accede to this request and has.stated that it cannot at the present time grant such recognition to either I. B. E. W. or U. W. O. C. The Company is now dealing with each union as representative of its members under "interim grievance plans" negotiated with the two unions. We find that the question concerning representation of employees of the Company, which we previously found to have arisen, remains undetermined at the present time, and that a question pres- ently exists concerning the representation of the employees of the Company. H. THE APPROPRIATE UNIT The only question regarding the appropriate unit now before us concerns 'the inclusion therein of certain supervisory employees. Crew Foremen. I. B. E. W. contends that crew foremen should be included in the appropriate, unit. U. W. O. C. contends that they 822N L R B 726. 8 See footnote 15, infra. 10 The findings of fact made herein are supplementary to those made in the Boards former decisions described above 284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD should be excluded, and in addition contends that employees who were crew foremen at the time of the last election, but who have since been demoted, should likewise be excluded. There have been no changes in the duties or responsibilities of the crew foremen since the first hearing herein. Their status is still clearly supervisory. In connection with a reduction of the number of men engaged in line construction work, however, a substantial number of crew foremen have been demoted and are now regular mem- bers of the line crews. The exact number of such demotions is not supplied by the record, but it does appear that there are now 150 crew foremen, whereas at the time of the first election there were 200. In its first decision, the Board found that crew foremen should not be excluded from the appropriate unit, despite their supervisory status.' Upon reconsideration the Board determined that crew fore- men should be excluded from the unit on the ground that, although U. W. 0. C had earlier admitted such employees to membership and had attempted to bargain for them, the role played by certain crew foremen in unfair labor practices found by the Board to have been committed by the Company's justified U. W. 0. C.'s later position that they should be excluded. The Board therefore adhered to its usual practice of excluding supervisory employees where one of the participating labor organizations desires such exclusion.' No reason appears at present for departing from the latter decision. Hence, crew foremen will continue to be excluded from-the appropriate unit. We find no valid basis, however, for excluding the present linemen who formerly enjoyed the status of crew foremen. These men will be represented by the representatives to be chosen in the coming elec- tion and are entitled to a voice in their selection. We are not per- suaded that the activities of some of the members of the crew-foremen group in furtherance of the Company's unfair labor practices so affected the whole group that, as argued by U. W. 0. C., former members presumptively continued to act, after their demotion to eligible classifications, as representatives of the Company in further- ance of hostility on its part to U. W. 0. C. Other supervisory employees.-There have been no changes in the work or responsibilities of the Company's other supervisory em- ployees. However, the Company has instituted a new classification of its supervisors, and now denominates them either as "foremen" or as "chiefs." The former have full supervisory powers, including the power to hire and discharge. The latter are those "who work and supervise at the same time." They can recommend hiring and discharging, and include employees in charge of part of a plant on 119 N. L R B. 742, 740. 12 See 9 N. L. R. B. 701 18 10 N. L. R. B 780, 782-783 CONSUMERS POWER COMPANY 285 a single shift, as well as other employees who have supervision only of the two employee's who perform their work on other shifts. Our former decision, as amended, excluded from the appropriate unit "general and assistant foremen, plant supervisors, crew fore- men, and other supervisory employees." It was specified, however, that "as used hereinafter, the term, supervisory employees means em- ployees who have the power to hire or discharge or the power to recommend' hiring or discharging, and includes general foremen, assistant foremen, plant supervisors, crew foremen, and all other em- ployees whose status is similar to or superior to that of crew fore- men."" No reason appears why the same definition should not continue to apply. Therefore we adhere to our previous finding concernnlg the appropriate unit. 111. THE DETERMINATION OF REPRESENTATIVES It is not contended that either of the labor organizations can be certified without the holding of an election. Two questions have arisen concerning the determination of representatives by such an election. A. Eligibility to vote U. W. O. C. claims that eligibility to vote should be based upon the pay-roll date on or about January 1, 1940, and that furthermore, employees laid off during the period of 6 months prior to that date should be permitted to vote. Both the Company and I. B. E. W. contend that a recent pay roll should determine eligibility and that no provision should be made for persons indefinitely laid off. Briefly stated, the relevant facts are as follows : Between August 29; 1938, the date of the pay roll used in the first election, and January 1, 1940, 384 employees were added to those eligible to vote and 329 employees were dropped from that group. By April 26, 1940, an additional 51 employees had been added and 202 had been dropped. The additions include employees transferred from ineligible to eligi- ble classifications, but the great majority are new employees placed on the Company's pay roll for the first time since the first election. This latter group includes employees hired in connection with the acquisition of new properties and the opening of new plants. The employees dropped from the appropriate unit include, in addition to a minority transferred from eligible to ineligible categories, employees laid off because of a drop in line construction work, and because of the cessation of certain work in connection with the introduction of natural gas distribution by the Company. The claim that employees laid off during the past 6 months should be entitled to vote rests on the following facts : From the time of the execution of the first contract between the Company and U. W. O. C., 1410 N L R B 780, 783 286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on June 8, 1937, to the present, when the Company is operating under the "interim grievance plans" mentioned above, the Company has agreed that ' (1) Seniority is the right accruing to employees through length of service which entitles them to preference in laying-off and rehiring due to fluctuations in employment. The seniority of each employee shall be determined by the length of continuous employ- ment by the Company, or its predecessors, in any capacity. Em- ployment will be assumed to be continuous, unless interrupted by resignation, discharge for cause, or lay-offs in excess of six (6) months .. . (2) Consideration of seniority rights by the Company in laying off and rehiring employees must necessarily involve departments and occupational groups. (5) Employees shall be regarded as probational for the first eight (8) months of their employment and there shall be no re- sponsibility for the reemployment of such employees if they are discharged or laid off during this period .. . Under these provisions, the Company has recognized that employees who have been laid off for less than 6 months have a prior right to be recalled if vacancies occur. Testimony given at the hearing indicates that the Company limits this right to jobs which involve the same type of work, and which open in the locality in which the employee for- merly worked. U. W. 0. C. contends that the limitation as to locality is not warranted by the terms of the agreement. Application of the 6-month seniority clause to the right to vote is opposed by the Company and I. B. E. W. on the ground that there is no likelihood at the present time of jobs reopening within 6 months. As to line construction, for example, it appears that a peak was reached in 1938, and that such activity has decreased ever since, the decrease continuing at the time of the hearing. The Company has sold some of its equipment and considers that the area which it serves has reached its maximum saturation. Employees have been laid off indefinitely and their group insurance has been canceled. Similarly, employees have been laid off indefinitely because of the cessation of work, carried on chiefly in 1937 and 1938, in changing over from the distribution of manufactured gas to natural gas. U. W. 0. C. contends that these facts are misleading and that the Company has deliberately laid of certain employees and has replaced them with new men in order to affect the results of the coming election. It claims that it is unable to show this by direct evidence, but that cer- tain alleged discrepancies and concealments in the testimony given by representatives of the Company show a fixed' design to affect the CONSUMERS POWER COMPANY 287 election results. We are not persuaded that this is the case. The fact that the number of new employees almost equals the number of employees laid off, so that the net change in the total pay roll is small, is explained by evidence in the record that the new employees are en- gaged in work quite different from that formerly engaged in by the laid-off employees. There is no evidence to the contrary. Other argu- ments advanced by U. W. O. C. are not convincing. We conclude, therefore, that there is no reason for not following our usual practice of determining eligibility to vote on the basis of a pay roll immediately preceding the date of our Direction of Election. We shall so provide. On the other hand, we believe that employees laid off during the 6 months preceding the pay-roll date selected have an interest in the determination of representatives. Although the testimony indicates the unlikelihood of an increase in work in the fields in which employees have been laid off, this does not mean that laid-off employees have no chance of being rehired. This is not the case which would be presented if a_particular type of work had been discontinued entirely. The evidence does not negative the possibility of vacancies caused by normal turn-over in employment. Employees who fall within the terms of the 6-month clause have an interest based not only on the fact that they may be rehired but on the fact that they may desire repre- sentation in connection with questions as to their right to be rehired under the seniority clause. We believe that any doubt as to the interest of laid-off employees, who enjoy seniority rights, in their former jobs, should be resolved in favor of giving them a voice in the selection of representatives through whom they may seek to protect those rights. We find, therefore, that employees who have worked for the Company for 8 months, thereby attaining seniority rights, and who have been laid off for less than 6 months, have an interest in determining the representatives to be chosen in the coming election for the purposes of collective bargaining, which entitles them to a voice in their selection.15 15 As noted above, the Board , on March 4 , 1940, ordered the holding of an election based on the pay roll next preceding March 4, 1940 . U. W. 0 C. thereupon filed a petition in which it alleged that the Company had supplied its pay roll of February 25, 1940, as the pay roll next preceding March 4. 1940 , and that the Company had indicated its unwillingness to furnish the names of employees laid off during the preceding 6 months U. W. 0 C prayed (1) that the Board classify the status of employees laid off during the 6 months prior to February 25, 1940, and permit them to vote; (2) that it issue a subpena to the Company directing it to produce a list of "such employees" , and (3) that at U. W. 0 C. be permitted to examine such list. This petition was denied without prejudice. We have above denied the motion of U. W O. C to renew the petition This action is predicated on the fact that the election which we are presently directing is not to be based on a pay roll of February 25, 1910, and on the fact that there is no reason to believe that the Company will refuse to furnish the names of employees laid off during the 6 months preceding the date of the pay roll which will be used in the coming election , or that U. W. O. C. will be prevented from examining a list of such employees . In so far as the motion to renew the petition was intended to be treated as referring to employees laid off during the 6-month period preceding the date of the pay roll herein specified , it may be considered as having been granted as to the first point in its prayer , and denied without prejudice as to the second and third points 288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD One further question presented by the record should be disposed of. The Company has two groups of seasonal employees : those whose work involves steam-heating operations, who are laid off during the summer ; and those who are engaged in street work in the gas-distribution department, who are laid off during the winter. At the time of the hearing, both seasonal groups were employed, but the regular seasonal lay-off in the first group may have taken place by the date of the pay roll which we are specifying herein. Such of these, however, whose employment has been sufficiently regular as to attain seniority status will be permitted to vote under the provision made for employees laid off less than 6 months. B. Form of ballot In our Supplemental Decision and Order of April 5, 1940, we stated that after a supplemental hearing had been held we would decide "whether to hold a run-off election, affording the employees the opportunity of voting for I. B. E. W. or U. W. O. C., or to hold a new election, in which the ballot will contain, in addition to the names of the two labor organizations, a space for voting for neither union." At the present time, I. B. E. W. favors the former alterna- tive, and U. W. O. C. favors the latter. The Company has expressed itself as being in doubt as to which alternative is proper. In support of its position, I. B. E. W. points out that even if all of the new employees were considered as desiring no collective bargaining, the number of such employees added to the number who voted for "Neither" in the first election would not constitute a major- ity of the employees in the appropriate unit, and that hence under the doctrine of the LeBlond case, the question of whether or not the employees should have representation for the purposes of collec- tive bargaining must be considered as determined. On the other hand, U. W. O. C. points out that 17 months have elapsed since the date of the first election, and that the many new employees on the pay roll should have a full opportunity to indicate their choice'. We believe that, in view of the lapse of time, not only the new employees but those who formerly voted should be given the oppor- tunity of expressing their choice, in a new election, for representa- tion by either union or by neither. A run-off election, giving effect to the choice made at the election held in January 1939, would not, under all the circumstances here presented, be an appropriate method of ascertaining collective bargaining representatives. We therefore declare the election held from January 10 to 13, 1939, pursuant to our original Direction of Election, as amended, to be of no further effect, and shall direct that a new election be held. CONSUMERS POWER COMPANY 289 DIRECTION OF SECOND ELECTION By, virtue 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 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to determine representatives for the purposes of collective bargaining with Consumers Power Company, Jackson, Michigan, an election by secret ballot shall be conducted as early as possible, but not later than forty-five (45) clays from the date of this Direction of Second Election, under the direction and supervision of the Regional Director for the Seventh Region, acting in this matter as agent of the National Labor Relations- Board, and pursuant to Article III, Section 9, of said Rules and Regulations, among all the employees of 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, electri- cal, mechanical, and civil engineers, efficiency men and junior engineers, draftsmen, surveyors, chemists, architects, temporary com- mon laborers hired for a specific job and for not more than 6 months, part-time local service men and local service men who do not per-' form mechanical work in the regular course of employment, and storekeepers with supervisory powers who do not ordinarily do mechanical work, but including load dispatchers, meter readers and bill distributors, 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 immediately preceding the date of this Direc- tion of Second Election, or who were laid off by the Company during the 6 months preceding the date of such pay roll after having worked for the Company for S months, except those who-have since quit or been discharged for-cause, to determine whether they desire to be represented by Internationaf Brotherhood of Electrical Workers, Local 876, or by Utility Workers Organizing Committee, for the purposes of collective bargaining, or by neither. MR. WILLIAM M. LEISERSON took no part in the consideration of the above Supplemental Decision and Direction of Second Election.