Malden Electric Co.

In the Matter, of MALDEN ELECTRIC COMPANY and BROTHERHOOD OF UTILITY WORKERS OF NEW ENGLAND, INC. - Case No. R-,0571.-Decided June 30, 1941 Jurisdiction : electric utility industry. Investigation and Certification of Representatives : existence of question: re- fusal to accord union recognition; contract entered into subsequent to filing of petition, no bar to ; election necessary. Unit Appropriate for Collective Bargaining : employees in-the meter reading, meter testing, bill delivery, and distribution departments of the Company, excluding employees above the rank of working foreman ; Company-wide unit held inappropriate. Mr. Edward Schneider, for the Board. Mr. David J. Donahue and Mr. Robert H. Jameson, of Boston, Mass., for the Company. Mr. William M. Kerwin, of Boston, Mass., for the Brotherhood. Mr. Lawson Wimberly, of Washington, D. C., for the I. B. E. W. Mr. Samuel E. Ango ff, of Boston, Mass., for the U. M. W. A. Mr. Louis Cokin, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On February 26, 1941, Brotherhood of Utility Workers of New England, Inc., herein called the Brotherhood, filed with the Regional Director for the First Region (Boston, Massachusetts) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Malden Electric Company, Malden, Massachusetts, herein called the Company, and requesting an investi- gation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 2, 1941, 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 2, as amended, ordered an investigation. and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. 33 N. L. R. B., No. 16. 78 MALDEN ELECTRIC COMPANY 79 On May 6, 1941 , the Regional Director issued a notice of hearing; copies of which were duly served upon the Company, the Brotherhood, and upon International Brotherhood of Electrical Workers, herein called the I. B. E. W., and United Mine Workers of America,. Gas and 'By-Product Coke Workers Local No. 12007, herein called the U. M. W. A., labor organizations claiming to represent employees directly affected by. the investigation . Pursuant to notice, a hearing was held on May 15, 16, and 19, 1941, at Boston, Massachusetts, before Webster Powell, the Trial Examiner duly designated by the Chief Trial Ex- aminer. The Company, the Brotherhood, the I. B. E. W., and the U. M. W. A. were represented by counsel and participated in the hear- ing. Full opportunity to be heard, to examine and cross-examine wit- nesses, and to introduce evidence bearing on the issues was afforded all parties. At the close . of the hearing, counsel for the U. M. W. A. and counsel for the I. B. E. W. moved to dismiss the petition on various grounds. The Trial Examiner reserved ruling thereon . The motions are hereby denied. At the same time counsel for the Company moved to dismiss the petition on the ground that no question concerning rep -resentation had arisen. The Trial Examiner reserved ruling thereon. The motion is hereby denied. During the course of the hearing' the Trial Examiner made several rulings on motions and on objections to the admission of evidence. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On May 31, 1941, the U. M. W. A. filed a brief which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. 'THE BUSINESS OF THE COMPANY Malden Electric , Company is a Massachusetts corporation engaged in the sale and distribution of electricity for light and power within the State of Massachusetts. During 1940 the Company sold 114,270,370 kilowatt hours of electricity for a total revenue of $3,575,433.37. Dur -ing 1940 the Company sold substantial quantities of electricity to manufacturing concerns which shipped substantial quantities of their products in interstate commerce. The Company also sold electricity to various instrumentalities of commerce such as railroad companies, telegraph companies, radio stations, and the. telephone company. The Company stated that it does not contest the jurisdiction of the Board in this proceeding. 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD H. THE ORGANIZATIONS INVOLVED Brotherhood of Utility Workers of New England, Inc. is an un- affiliated labor organization admitting to, membership employees of the Company. International Brotherhood of Electrical Workers is a labor organi- zation affiliated with the American Federation of Labor. It admits to membership employees of the Company. United Mine Workers of America, Gas and By-Product Coke Work- ers Local No. 12007, is a labor organization affiliated with the Con- gress of Industrial Organizations. It admits to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has been bargaining with various labor organizations since 1937. Since 1937 the Brotherhood has had exclusive contracts with the Company covering the production and garage employees. The last of such contracts was terminated by the Brotherhood on May 1, 1941. The I. B.' E. W. has had exclusive bargaining contracts with the Company covering the employees in the meter-reading, meter-testing, bill-delivery, and distribution departments since 1937. In' the latter part of February 1941, the I. B. E. W. and the Company held several conferences for the purpose of negotiating a new, agreement, culminating in' a closed-shop contract signed on March 5, 1941. ' In January 1941, the U. M. W. A. requested the Company to recog- nize 'it as the exclusive representative of the employees in the night- posting, store, and outside-collection departments. On February 21, 1941, the U. M. W. A.-and the Company reached an agreement for a closed-shop contract covering such employees. However, the contract was not signed until March 4, 1941.1 On February 25, 1941, a representative of the Brotherhood re- quested the Company to delay its negotiations with the I. B. E. W., which were pending at that time, because it claimed to represent a majority of the employees that were being bargained for by the I. B.' E. W., and stated that before any agreement was concluded that its "case" should be heard. On February 26',,1941, the Brotherhood filed its petition herein. It is apparent that the I. B. E. W.'s contract' of March 5, 1941, does not constitute a bar to a presentdete'rmination of representatives inasmuch as it was entered into subsequent to'the' filing of the petition herein.2 1 This contract was not signed until March 4, 1941, because of the delay in getting, the contract printed.. 2 Matter of . California Wool Scouring Company and Textile Workers Organizing Commit- tee, 5 N. L. R. B. 782. MALDEN ELECTRIC COMPANY 81 A statement of the Regional Director introduced in evidence shows that the Brotherhood represents a substantial number of employees in the unit all by it to be appropriate.' 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 , and commerce 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 Brotherhood contends that all employees of the Company, excluding executives, officials, supervisory employees above the rank of working foreman, personnel office employees, and office employees Ntiho perform confidential duties, constitute an appropriate unit. The I. B. E. W. and the U. M. W. A. contend that the units covered by their contracts are appropriate and urge the dismissal of the petition herein. As stated above, since 1937 the Company has been bargaining with the Brotherhood and the I. B. E. W . on a departmental basis and has. entered into exclusive bargaining contracts with such labor organizations . Such departments are within the scope of the Company-wide unit petitioned for by the Brotherhood. The Broth- erhood has continued to bargain with the Company on behalf of the production and garage employees after the petition filed by it herein. It is the only organization claiming to represent the pro- duction and garage employees and no one contests that it represents a majority of such employees . In addition, the U. M. W. A. has ' a valid contract entered into prior to the, petition herein covering employees in three departments which are claimed by the Brother- hood, and the Brotherhood admits that it does not represent a majority of the employees in these three departments. Under these circumstances, we find ,that the Company -wide unit petitioned for by The Regional Director reported that the Brotherhood presented 130 .membership appli- cation cards bearing the names of persons who appear on the Company 's pay roll of Febru- ary 27 , 1941, and who are in the unit alleged by it to be appropriate . He further . reported that 49' of the cards bear signatures of persons who are in the unit covered by the I. B. E. W. contract. There are 93 employees in such unit. 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Brotherhood is inappropriate for the purposes of collective bargaining.' At the hearing, however, counsel for the Brotherhood stated. that in the event the Board found that the Company-wide unit was not appropriate, it desired a single election among the production and garage employees and, the employees covered by the I. B. E. W. contract. Since no one contests that the Brotherhood represents. a majority of the production and garage employees, we find that it is unnecessary to hold an election among such employees. However, as stated above, the Brotherhood represents a substantial number of employees in the departments covered by the I. B. E. W. contract. Under all of the circumstances, we. find that the employees covered by the I. B. E. W. contract constitute an appropriate unit for the purposes of collective bargaining. We find that employees in the meter reading, meter testing, bill delivery and distribution departments of the Company, excluding employees above the rank of working foreman, constitute a unit ap- propriate for the purposes of collective bargaining and that such unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise effectuate the policies. of the Act. vI. THE DETERMINATION OF REPRESENTATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The I. B. E. W. stated that in the event the Board directed an election, it desired that the pay roll of . February 27, 1941, which was intro- duced in evidence, be, used to determine eligibility to vote. The-Com- pany and the Brotherhood took no position' with respect to the eligibility date. In accordance with our usual practice we find that the employees of the Company eligible to vote in the election shall be those employees in the appropriate unit who were-employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to such limitations and additions as are set forth in the Direction hereinafter. 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- ssntation of employees of Malden Electric Company, Malden, Massa- 4 It should be noted that New England Power Association, of which the Company is an affiliate, has over 40 contracts with labor organizations, all on a departmental basis. MALDEN ELECTRIC COMPANY 83 ,chusetts, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. 2. All employees in the meter reading, meter testing, bill delivery, and distribution departments of the Company, excluding employees above the, rank of working foreman, constitute a unit appropriate for the purposes of collective bargaining, within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION 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 2,.as amended, it is hereby DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with Malden Electric Company, Malden, Massachusetts, an election by secret ballot shall be conducted as. early as possible, but not later. than, thirty .(30) days from the date of this Direction, under the direc- tion: and supervision of the Regional Director for .the First Region, acting in this matter as agent for the National Labor Relations Board, and subject. to Article III, Section 9, of said Rules and Regulations, among all employees in the meter-reading, meter-testing, bill-delivery, .and distribution departments of the Company who were employed during the pay-roll period immediately preceding the- date of this Direction, including employees who did not work during such pay- roll period because they were ill or on vacation or in the active mili- tary service or.training of the United States, or temporarily laid off, but excluding employees above the rank of working foreman and employees who have since quit or been discharged for cause, to determine whether they, desire to be represented by Brotherhood of Utility Workers of New England, Inc., or by International Brother- hood of Electrical Workers, affiliated with the American Federation of .Labor, for .the purposes of collective bargaining, or by neither.. [SAME TITLE] CERTIFICATION OF REPRESENTATIVES August 6, 1941 On June 30, 19411 the National Labor Relations Board, herein called the Board, issued a Decision and Direction of Election in the above-entitled proceeding. Pursuant to the Direction of Election, 450122-42-vol. 33-7 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,an election by secret ballot was conducted on July 18, 1941, under the direction and supervision .of the. Regional Director for the. First Region (Boston, Massachusetts). On July 21, 1941, the Regional Director, acting pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 2, as amended,, issued-and duly served.'upon the parties an Election Report on' the ballot. No objections to the conduct of the ballot or,.the Election Report have been filed by any of the parties. As to the balloting and its results, the Regional Director reported as follows : Total number of votes cast____________________________________ 84 Total number of valid votes cast ______________,_------- ------- 34 Total number of ballots, marked for Brotherhood of Utility Workers of New England, Inc------------------------------ 36 Total number of ballots marked for International Brotherhood of Electrical Workers (A: F. of L.)------------- _------------ 45 Total number of ballots marked "Neither "______-_____ Total number of void ballots__________________________________ 0 Total number of,blank ballots ----------------------------------- 0 "Total number of challenged ballots____________________________ 0 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, 49 Stat. 449, and pursuant to, Article III, Sections 8 and 9, of National Labor Relations Board Rules 'aud Regulations- Series" 2, as amended, IT IS HEREBY CERTIFIED that International Brotherhood of Electrical Workers,' affiliated with the American Federation of Labor,. has been designated and selected by a majority, of all employees in the meter- reading, meter-testing, bill-delivery, and distribution departments of Malden Electric Company, Malden, Massachusetts, excluding em-. ployees above the rank of working foreman, as their representative for the purposes of collective bargaining, and that, pursuant to Sec- tion 9 (a) .of the Act, International Brotherhood of Electrical Work- ers, affiliated, with' the American Federation of Labor, is the exclu- sive representative of all such employees for the purposes of collec- tive bargaining with respect to rates of-pay, wages, hours of employ- ment, and other conditions of employment. 33 N.. L. R. B., No. 16a.