Columbus & Southern Ohio Electric Co.

In the Matter of COLUMBUS & SOUTHERN OHIO ELECTRIC COMPANY and TRANSPORT WORKERS UNION (C. I. 0.) Case No. R-0868.Decided October 04,1941 Jurisdiction : electric, street transportation , and steam utility industry ; corpo- ration engaged in both interstate and intrastate business and divided into electric and street transportation departments , the- management of both of which was integrated and centralized , held subject to Act. Investigation and Certification of Representatives : existence of question: Com- pany refused to answer union's request for recognition ; contract with rival labor organization no bar to investigation and certification since entered into after Company had notice of petitioning union's claim to representation ; extra common laborers hired during summer season for removal of streetcar tracks held ineligible to vote; election necessary. Unit Appropriate for Collective Bargaining : all employees of transportation division, including working foremen , but excluding operating foremen, super- visors, foremen having authority to hire and discharge , clerical employees in the office of the superintendents , and all persons employed in the transportation division , other than car, coach, and bus operators , who have any connection with the sale and distribution of tickets and transfers and/or the collection of the transportation division operating receipts. Burr, Porter, Stanley & Treffinger, by z11r. W. Glover Porter and Mr. Ralph E. Weaver, of Columbus, Ohio, for the Company. Mr. Stanley Denlinger, of Akron, Ohio, for the Transport Workers. Mr. M. Herbert Syme, of Philadelphia, Pa., for the Association. Mr. Frederic B. Parkes, Ond, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On May 29, 1941, Transport Workers Union (CIO), herein called the Transport Workers, filed with the Regional Director for the Ninth Region (Cincinnati, Ohio) a petition alleging that a question affecting commerce had arisen concerning the representation of Columbus & Southern Ohio Electric Company, Columbus, Ohio, herein called the Company, and requesting an investigation and certification of repre- 36 N. L. It. B., No. 78. 386 'COLUMBUS & SOUTHERN OHIO ELECTRIC COMPANY 387 sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On July 15,1941, 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 con- duct it and to provide for an appropriate hearing upon due notice. On July 16 and 23, 1941, respectively, the Regional Director issued a notice of hearing and a notice of postponement of hearing, copies of which were duly served upon the Company and the Transport Workers and upon Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Columbus Division 1111, affiliated with the American Federation of Labor, herein called the Amalgam- ated, a labor organization claiming to represent employees directly affected by the investigation. Pursuant to notice, a hearing was held on August 11, 12, and 13, 1941, at Columbus, Ohio, before Grant G. Cannon, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the Transport Workers, and the Amal- gamated were represented and participated in the hearing. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. The Company moved that the petition be dismissed on the grounds that (1) the Company is not within the jurisdiction of the Board, and (2 ) the contract between the Company and the Amalgamated, en- tered into on May 22, 1941, constitutes a bar to a present investigation and certification of representatives. The Trial Examiner reserved ruling on this motion for the Board. The motion is hereby denied for reasons set forth below. The Trial Examiner refused to admit testi- mony offered by the Company and the Transport Workers concerning the circumstances surrounding the negotiation and execution of the contract entered into by the Company and the Amalgamated on May 22, 1941. The Company and the Transport Workers made formal offers of proof thereon and the Amalgamated made an offer of proof to deny the facts set forth in the Transport Workers' offer of proof.' The Trial Examiner rejected all offers of proof. Since we find in 'In order to negative any inferences of bad faith or collusion on the part of the Com- pany in negotiating the 1941 contract with the Amalgamated , the Company offered to prove that after several conferences in March and May 1941, a draft of the new contract embodying the changes agreed upon was given to the president of the Amalgamated "on May 6, 1941, to submit to the membership of the Amalgamated , but-that he did not submit the contract to the membership because he withdrew from the Amalgamated and became a member of the Transport workers on May 11, 1941. The Transport workers offered to prove that the 1941 contract between the Company and the Amalgamated was entered into about 2 weeks after all except two of the members of the Amalgamated who had attended a meeting on May 11, 1941, were suspended , and that the present officers and members of the Amalgamated were not members of the Amalgamated prior to May 11, 1941. 388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Section III, infra, that the 1941 contract between the Amalgamated and' the Company does not constitute a bar to a present investigation and certification of representatives irrespective of the circumstances sur- rounding its execution, we hereby affirm the rulings of the Trial Exam- iner in rejecting the offers of proof. During the course of the hearing,, the Trial Examiner made various other 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 affirnmed. On August 25 and 26, 1941, respectively, the Transport Workers and the Company filed briefs 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 Columbus & Southern Ohio Electric Company, an Ohio corpora- tion.' is engaged (1) in the generation, distribution, and sale of elec- trical energy for light, heat, and power purposes, (2) in the operation of a street transportation system in Columbus, Ohio, and surrounding suburbs, (3) in supplying steam and hot water for heating purposes to about 40 customers in Delaware, Ohio, and (4) in the sale and distribution of electric ranges and other electric appliances in most of the municipalities where it distributes electric current. The Company sells electric energy in 21 counties of the State of Ohio, in a territory comprising approximately 9,000 square miles and having an estimated population of 600,000 persons. Of the 282,085,755 kilowatt hours of electric energy generated by the Company during the first 6 months of 1941, the Company sold approximately 69,803,891 kilowatt hours to 2,498 industrial consumers, including railroads; tele- graph companies, radio stations, grain elevators, coal mines, foundries, metal-products and machine manufacturers, glass companies, food and meat-products companies, as well as the Columbus airport and the United States Post Office at Columbus, Ohio. The Company also 2 The Columbus & Southern Ohio Electric Company was incorporated in Ohio on Decem- ber 26, 1906 , as the Columbus Traction Company. On February 10, 1913, its name was changed to the Columbus Railway, Power & Light Company . On May 13, 1937, the Company entered into a consolidation agreement with the Southern Ohio Electric Com- pany and the Adams County Power & Light Company, two Ohio corporations , whereby the latter companies were merged into the Company and the Company acquired its present name. Nearly all the Company's common stock is owned by Continental Gas & Electric Cor- poration , a Deleware corporation , whose voting stock is owned by United Light and Rail- ways Company, also a Delaware corporation. United Light & Power Company, a Maryland corporation, owns the voting shares of United Light and Railways Company. The Com- pany also owns the stock of Point Pleasant Water and Light Company a West Virginia corporation, operating at Point Pleasant, West Virginia . The officers of the Company and the Point Pleasant Company are the same. COLUMBUS & SOUTHERN OHIO ELECTRIC COMPANY 389 supplies electric energy to the United States Government dam near Galipolis, Ohio, in the Ohio River between Ohio and `Vest Virginia. The Company maintains three major generating stations, all lo- cated in the State of Ohio, which produce 98.8 per cent of the Com- pany's entire electrical energy requirements. The Company purchases the remaining 1.2 per cent from other companies which generate such power in Ohio. Coal is the only fuel used by the Company in gener- ating its electrical energy. From January 1938 to June 1941,'. 7 per cent of the coal purchased by the Company was mined in the State of Ohio. During the month of June 1941, the Company purchased for the use of its electric division materials valued at $414,713.80, $138,664.86 worth of which were purchased and shipped to it from points outside the State of Ohio. During June 1941, the Company purchased merchandise and miscellaneous materials for resale in Ohio, valued at $15,378.20, $2,346.94 worth of which were purchased and shipped to it from points outside the State of Ohio: The equipment for the Company's transportation division as of June 30,1941, included approximately 97 streetcars, 103 trolley coaches, and 61 motor buses. Of such equipment, the Company purchased 74 street- cars, all the trolley coaches, and 14 motor buses from points outside the State of Ohio. Of the 282,085,755 kilowatt hours of electric energy generated by the Company during the first 6 months of 1941, the transportation division consumed 11,879,580 kilowatt hours. The Company's entire motor bus gasoline supply for the year ending June 1941 was delivered to the Company from points in Ohio, being pur- chased from the major oil companies.3 During the month of June 1941, the Company purchased for the use of its transportation division materials valued at $37,079, $6,391.12 worth of which were purchased and shipped to it from points outside the State of Ohio. The Company employs approximately 588 employees in its transportation division. The record discloses that the transportation division is an integral part of the whole operations of the Company. There is no separation of the functions of the Company's officers in dealing with the opera- tions of the Company's two divisions. Although separate systems of accounting are used for the respective divisions, the accounting work is performed by one department for all divisions of the Com- pany. The control of personnel and labor policies of both divisions is centralized in the elective officers of the Company. Furthermore, the operating losses of the transportation division, which has not operated at a profit for several years, are deducted from the Com- pany's profits on its entire operations before the payment of divi- s The record does not disclose the source of the on from which the gasoline is refined or the location of the refineries. 390 DECISIONS OF NATIONAL LABOR RELATIONS, BOARD dends to its stockholders. We find (1) that the Company maintains facilities in Ohio for the generation and distribution of electric energy; (2) that instrumentalities of interstate commerce, such as railroads, . telegraph companies and radio stations, as.well as industries engaged in operations affecting commerce,. use electrical energy supplied by the Company; (3)' that the Company receives a substantial amount of its materials, supplies, and equipment in interstate commerce for its electric and transportation divisions; (4) that the Company's transportation division derives all the power necessary for its opera- tion from the Company's electric division; and (5) that the Company is an integrated enterprise with a centralized management controlling the labor policies of the Company's electric and transportation divisions. In view of the foregoing facts, it is apparent, and we find, that the operations of the Company affect commerce within the meaning of the Act. The Company contends, however, that its transportation division, the employees of which are here involved, is a separate and distinct business, unconnected with its electric division, and that the operations of the transportation division do not affect commerce within the meaning of the Act. We find the contention of the Com- pany to be without merit, since the facts set forth above clearly demonstrate the unitary character of the Company's enterprise, not- withstanding its division into departments. We conclude that con- troversies concerning wages, rates of pay, hours of employment, or other conditions of employment in any department of such a business will have repercussions in other departments; and strife affecting the interstate commerce in which the Company is engaged will be avoided only after the rights of all employees are properly safeguarded 4 II. THE ORGANIZATIONS INVOLVED Transport Workers Union, Local 208, is a labor organization affiliated with the Congress of Industrial Organizations, admitting employees of the Company to membership. Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Columbus Division 1111, is a labor organization affiliated with the American Federation of Labor, ad- mitting employees of the Company to membership. 4 See Virginia Electric & Power Co . v. N. L. R. B., 115 F. (2d) 414 (C. C. A. 4), setting aside on other grounds Matter of Virginia Electric & Power Company and Transport Workers Union of America, 20 N. L. R. B. 911 ; Southern Colorado Power Co. v. N..L. R. B., 111 F. (2d) 539 (C. C. A. 10), enforcing Matter of Southern Colorado Power Co., a cor- poration and H. H. Stewart and I. L. Watkins, individuals, 13 N. L. R. B. 699; Matter of The Texas Company and Building Service Employees Local Union No. 75, 21 N. L. R. B. 110. COLUMBUS & SOUTHERN OHIO ELECTRIC COMPANY 391 III. THE QUESTION CONCERNING REPRESENTATION In a letter dated May 12, 1941, the Transport Workers requested a conference with the Company and informed the Company that at a_ recent meeting the members of the Amalgamated unanimously voted to change their affiliation to the Transport Workers. The Company did not.reply. On May 15, 1941, the Transport Workers by letter requested that the status quo in bargaining negotiations be maintained until it could be determined which organization represented a majority of the Company's employees. In a letter dated May 15, 1941, the Company informed the Transport Workers that it had concluded its. negotiation with the Amalgamated on the morning of May 15, 1941.. and that a formal contract had been prepared which would become effective upon the approval of the membership of the Amalgamated.. On May 22, 1941, the Company and the Amalgamated entered into a collective bargaining contract. On May 29, 1941, the Transport Workers filed its petition requesting an investigation and certification of representatives. The Company contends that its contract with the Amalgamated entered into on May 22, 1941, constitutes a bar to this proceeding. Each year since May 1937, the Company has entered into a collective bargaining contract with the Amalgamated. On March 25, 1941, the Company gave the Amalgamated notice of the termination of the 1940 contract and the parties commenced negotiations for changes in that contract. Since the Transport Workers presented notice of its claim to represent the transportation division employees before the new contract was formally executed, we find that contract between the Company and the Amalgamated is not a bar to this present pro- ceeding for an investigation and certification of representatives. A statement of the Trial Examiner introduced in evidence at the hearing shows that the Transport Workers and the Amalgamated each represents a substantial number of the employees in the unit found below to be appropriate.' We find that a question has arisen concerning the representation of employees of the Company. 5 The Transport workers submitted 255 dues payment cards to the Trial Examiner, who found that 127 showed dues payments beginning in May 1941 , 20 in June, 12 in July, and 1 in August. The Trial Examiner stated that 208 of the 255 cards bore the names of persons appearing on the Company's pay roll of July 31 , 1941, in the transportation division. The Amalgamated submitted to the Trial Examiner 192 application cards, of which 176 were dated in May 1941, and 16 were undated . The Trial Examiner stated that 190 of the 192 cards bore the names of persons appearing on the Company 's pay roll of July 31, 1941, in the transportation division . The names of 16 persons appeared on the cards. of both the Transport Workers and the Amalgamated. There are approximately 500 employees within the unit found below to be appropriate. 392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Company, the Transport Workers, and the Amalgamated agree that the bargaining unit should include all employees in the trans- portation division of the Company, except supervisors, foremen hav- ing authority to hire and discharge, clerical employees in the office of the superintendents, and all persons employed in the transportation division, other than car, coach, and bus operators, who have any con- nection with the sale and distribution of tickets and transfers and/or -the collection of the transportation division operating receipts. The Company, however, would include and the Transport Workers and the Amalgamated would exclude from, the unit eight operating foremen who spend half their time supervising and the remainder of their time working with the employees under their control. Two serve as foremen of the streetcar service quarters where cars are stored, inspected, cleaned, and repaired. Four serve in a similar capacity at the trolley coach quarters. One is the foreman of the garage, which services motor buses. One is the general foreman of the repair shop at which major overhauling of equipment is made. The foremen do not have authority to hire or discharge employees, but they may rec- ommend the discharge, discipline, and demotion of employees under -their supervision. We shall exclude the eight operating foremen from the appropriate unit. The Company and the Amalgamated would include and the Trans- port Workers would exclude four working foremen from the unit. They spend 90 to 95 per cent of their time working alongside the em- ployees whom they supervise. Although they have the authority to recommend the-discharge, demotion, or promotion of employees work- ing with them, the Company does not often follow their recommenda- tions. Their duties are similar to those of gang leaders. They serve as foremen of the machine division, paint division, truck room, and carpenter shop, respectively. Each has only a few men working with him. We shall include the working foremen within the unit. We find that all employees of the transportation division of the Company, including working foremen, but excluding operating fore- COLUMBUS & SOUTHERN OHIO ELECTRIC COMPANY 393 men, supervisors, foremen having authority to hire and discharge, clerical employees in the office of the superintendents, and all persons. employed in the transportation division, other than car, coach, and bus operators, who have any connection with the sale and distribution. of tickets and transfers and/or the collection of the transportation division operating receipts, constitute a unit appropriate for the pur- poses of collective bargaining and that said unit .will insure to em- ployees of the Company the full benefit of their right to self-organiza- tion and collective bargaining and otherwise will 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 means of an election by secret ballot. The Company and the Amalgamated request the use of the pay roll of July 31, 1941, for the purpose of determining eligibility to vote. The Transport Workers desire the use of the pay roll of May 31, 1941, for such purpose, for the reason that the May pay roll listed 45 extra employees who were hired to assist in the removal of street- car tracks but who have since been discharged. Each summer since 1937 the Company has removed certain sections of streetcar tracks. from the streets in accordance with its modernization program. In order.to expedite such removal, additional common laborers are hired each summer. The 45 in question were hired between April 10, and May 26, 1941, and were discharged between June 10 and 26, 1941. Six- teen had been similarly employed by the Company in 1940, 6 in 1939, none in 1938, and 2 in 1937. The Company makes no effort to rehire temporary employees whom it has previously employed. In view of these circumstances, we shall deny the request of the Transport Work- ers. We find no reason to depart from our customary practice and. shall direct that those persons eligible to vote in the election shall be those 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 hereinafter set forth in the Direction. 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 Columbus & Southern Ohio Electric Com- pany, Columbus, Ohio, within the meaning of Section 9 (c) and-Section. 2 (6) and (7) of the Act. 394 DECISION'S OF NATIONAL LABOR RELATIONS BOARD 2. All employees of the transportation division of the Company, including working foremen, but excluding operating foremen, super- visors, foremen having authority to hire and discharge, clerical em- ployees in the office of the superintendents, and all persons employed in the transportation division, other than car, coach, and bus operators, who have any connection with the sale and distribution' of tickets and transfers and/or the collection of the transportation division operating receipts, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the 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 Relations Act, and pursuant to Article III, Section 8,-of National Labor Rela- (-,ions 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 Columbus & Southern Ohio Electric Company, Columbus, Ohio, an election by secret ballot shall be conducted as soon as possible, but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Ninth Region, acting in this matter as agent for the National Labor Relations Board and subject to Article III, Section 9, of said Rules and Regula- tions, among all employees of the transportation division of the Com- pany who were employed during the pay-roll period immediately pre- ceding the date of this Direction, including working foremen and employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding operating .foremen, supervisors, foremen having authority to hire and discharge, clerical employees in the office of the superintendents, and all persons employed in the transportation division, other than car, coach, and bus operators, who have any connection with the sale and distribution of tickets and transfers and/or the collection of the transportation division operating receipts, and employees who have since quit or been discharged for cause, to determine whether they desire to be represented by Transport Workers Union Local 208, affiliated with the Congress of Industrial Organizations, or by Amalgamated Association of Street, Electric Railway and Motor Coach Employees of America, Columbus Division 1111, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by neither. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election.