Buffalo Niagara Electric Corp.

National Labor Relations Board - Board Decisions

Jan 4, 1943

46 N.L.R.B. 668 (N.L.R.B. 1943)

In the Matter of BUFFALO NIAGARA ELECTRIC CORPORATION , NIAGARA,.
LOCKPORT AND ONTARIO POWER COMPANY , AND LOCKPORT AND NEW-
FANE POWER AND WATER SUPPLY COMPANY and INTERNATIONAL
BRmmmnooD OF ELECTRICAL WORKERS, A. F. OF L.
In the Matter of BUFFALO NIAGARA ELECTRIC CORPORATION and Asso--
CIATED WELDERS OF WESTERN NEW YORK, INC.
In the Matter o^fBUFFALO NIAGARA ELECTRIC CORPORATION and LOCAI,.
239, UTILITY WORKERSORKERS ORGANIZING COMMITTEE , C. I. O.
Cases Nos. B-4535 through R-11537, respectively.-Decided January 4,.
1943
Jurisdiction : electric utilities industry.
Investigation and Certification of Representatives : existence of question : con-
flicting claims as to appropriate units ; election necessary.
Unit Appropriate for Collective Bargaining : system-wide unit comprising all
production and maintenance employees of several companies , excluding super--
visory employees , crew foremen and working and non-working foremen , office,
clerical, and engineering employees, and plant protection employees ; separate
unit for welders rejected when it was found they did not constitute a
segregated nor identifiable group.
Practice and Procedure : petition for welders dismissed in view on inappropriate-
ness of unit confined to these employees.
Mr. A. T. O'Neill, of Buffalo, N. Y., for the Companies.
Mr. Daniel B. Shortal, of Buffalo, N. Y., for the A. F. of L.
Mr. Solomon Tully, of Buffalo, N. Y., for the Welders.
Mr. David Diamond, of Buffalo, N. Y., for the C. I. O.
Mr. Daniel K. Boone, of Buffalo, N. Y., for the Association.
Miss Viola James, of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
Upon amended petitions filed respectively by the International
Brotherhood of Electrical Workers, affiliated with the American
46 N. L. R. B., No. 77.
668
BUFFALO NIAGARA ELECTRIC CORPORATION - i, 669
Federation of Labor, herein called the A. F. of L., by Associated
Welders of Western New York, Inc., herein called the Welders, and
by Local 239, Utility Workers Organizing Committee, affiliated with
the Congress of Industrial Organizations, herein called the C. I. 0.,
alleging that, questions affecting commerce had arisen concerning the
representation of employees of Buffalo Niagara Electric Corpora-
tion, Niagara, Lockport and Ontario Power Company, and Lockport
and Newfane Power and Water Supply Company, herein collectively
called the Companies,' the National Labor Relations Board provided
for an appropriate consolidated hearing upon due notice before
Francis V. Cole, Trial Examiner. Said hearing was held at Buffalo,
New York, on October 26, and November 5, 6, and 9, 1942. The
Companies, the A. F. of L., the Welders, the C. I. 0., and Association
of Western Utility Workers of Western New York, unaffiliated, and
herein called the Association, appeared and participated. All parties
were afforded full opportunity to be heard, to examine and cross-
examine witnesses, and to introduce evidence bearing on the issues.
The Trial Examiner's rulings made at the hear'ing' are free from
prejudicial error and are hereby affirmed.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANIES'
Buffalo 'Niagara Electric Corporation, Niagara, Lockport and,
Ontario Power Company, 'and, Lockport and Newfane Power and
Water Supply Company are public utility corporations engaged in
the production, transmission, and distribution of electric energy in
western New York. They, with the Niagara Falls Power Company,
whose employees are not involved herein, comprise a part of the
Niagara Hudson system. The Companies generate an annual volume
of about 6,000,000,000 kilowatt hours of electric energy, part of which
is essential to the operation of'railroads, railroad stations and ter-
minals, United States Post Offices and Custom Houses, telegraph,
telephone and radio companies, and shipyards, piers, and bridges
which are incident to navigation on Lake Erie, Niagara River, and
the New York State Barge Canal. A considerable amount of electric
energy is generated in Canada and transmitted to the lines of the
Companies for distribution. The Companies also purchase large
quantities of materials, including coal,, copper, cable, transformers,
switches, steel pipes, cement, electric meters, poles, and lamps, sub-
stantial proportions of which are received from points outside the
i
I The Welders and the C . I. 0. filed petitions with respect to the employees of the
Buffalo Niagara Electric Corporation only. , . ' ' .
'670 DECISIONS OF NATIONAL 'LABOR RELATIONS -BOARD
State of New York. The Companies concede- that they are engaged
in commerce within the meaning 'of the National Labor Relations
Act. =
IL' THE ORGANIZATIONS INVOLVED, '
International Brotherhood of Electrical Workers affiliated with"
the American Federation of Labor; Associated Welders of Western
New York, Inc., unaffiliated; Local 239, Utility Workers Organizing
Committee, affiliated with the Congress of Industrial Organizations ;
and Association of Western Utility, Workers of Western Nev York,
unaffiliated, are labor organizations, each admitting to membership
employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
Each of the Companies had bargaining contracts with the Associa-
tion at the time the petitions herein were filed.' As conflicting claims
with respect to.the appropriate unit have been made by the three peti-
tioners, the parties-preferred that the.matter be resolved by the Board.
A statement of the Regional Director, introduced.into evidence at
the hearing, indicates that each.of the petitioners represents a substan-
tial number of employees in the unit each seeks to establish.'
The Association submitted no proof of membership but claimed an
interest by reason of its contracts which it has had with the Companies
over a period of the`last 5 years.'
. We find that questions affecting commerce have arisen concerning
the representation of employees of the Companies within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act'.
I
IV. THE APPROPRIATE UNIT
The A. F. of L. and the Companies substantially agree that the
appropriate unit should consist of all the production and maintenance
9 These contracts expired November 30, 1942.
8 The Regional Director stated that the A. F. of L. submitted 821 application-for-member-
ship cards ; that 781 cards bore the names of persons listed on the Companies ' pay rolls of
August 15, 1942; that 763 of the 781 cards bore apparently genuine original signatures (465
cards'were undated, 6 were dated in 1936 , and 292 were dated in July, August, and Septem-
ber 1942 ) ; and that there are. approximately 1,589 persons in the alleged appropriate unit
The C. 1 O. submitted 266 authorization cards to the Regional Director, who found that
all 266 cards bore apparently genuine original signatures ; that 219 cards, of which 140
were dated between March and August 1942 and 79 were undated , bore the names of
persons listed on the pay roll of August 15, 1942 ; and that there are approximately 422 em-
ployees in the alleged appropriate unit. The A F of L. submitted 168 cards, all bearing
apparently genuine original signatures of persons in the unit claimed by the C I. 0 The
Regional Director found that 42 employees signed both C. I 0 and A F of L cards.
The welders submitted 7 authorization cards, all bearing- apparently genuine original
signatures and bearing dates in August 1942, and all the cards bore the names of persons
listed on the pay roll of August 15, 1942. The Companies contended they e are 7 in the
claimed unit, and the welders maintained there are 10 The A. F ofL and-the C.- I. o.-
each submitted 2 cards in the unit claimed by tlie'Welders • • - _
4On December 2, 1942, the Association notified the Board that it`did not wish to appear
on the ballot.
'BUFFALO NIAGARA ELECTRIC CORPORATION , , 671,
employees of the Companies. The C. I. 0. seeks to establish as a
Separate unit the employees of the Huntley Station. The Welders
would establish as a separate unit.welders, welders' apprentices;; and
all employees who join or fuse metal by heat.
The Companies operate six generating stations, including the Hunt-,
ley Station, from which electric energy'is transmitted and distributed'.
over a vast -distribution system. The electric energy generated in the,,,
generating stations and that which is purchased by the Companies
from Canada has a continuous flow through interconnections over the
lines of all three Companies, so that all three constitute an integral
system. All three Companies have a common set of officers who have
direct control over these operations. The main offices are located in.
Buffalo, New York. In these offices there is an employment and per-
sonnel office which handles the employment and personnel policies for
all three Companies. The pay rolls are handled centrally through the
accounting department. The Companies introduced evidence to show
that, due to the interflow of electricity over all their lines, safety pre-
cautions for their employees have necessitated a protection scheme by
which operations are directed from a central office. The Companies
also have a common job classification manual indicating that job titles
are the same for all three Companies. Since 1937, the employees of all
three Companies have been covered by bargaining contracts between
the Companies and the Association. These contracts recognize the
job classification manual and also, provide for uniform personnel poli-
cies, including uniform treatment with respect to promotions, over-
time, vacations, seniority, transfers, and wage rates.
The C. 1. 0. contends that the employees of the Huntley Station con-
stitute an appropriate .unit. The Huntley Station is the only
generating station of the Buffalo Niagara Electric Corporation and is
the only station which generates electricity by steam. It is located on
the bank of the Niagara River, over a mile north of the City of Buffalo.
Approximately 500 employees are located at Huntley, and for the most
part they work within the confines of the station. The C. I. 0. con--
cedes that ordinarily a system-wide unit is the most desirable, but
contends in this instance that the Huntley employees are geographi-
cally and by the nature of their work a segregated group, and that they
desire to be established as a separate unit. ' Notwithstanding these
contentions, it appears from the record that from an operational stand-
point the Huntley Station is a vital part of the integral system. The
employees at Huntley were included among all the employees covered
by the recently expired bargaining contracts. They received the same
promotions, raises, seniority rights, and other benefits provided for
by the,contracts. They do not have a separate.pay roll, but area part
of the pay roll of the Buffalo Niagara' Electric Corporation. Al-
672 DMISIONS OF NATIONAL LABOR RELATIONS BOARD
.though there was some evidence to the effect that the Huntley em,
ployees have their own social activities , including baseball , teams and
bowling leagues , there was also evidence to show that they take part
in system -wide competition . It also appears from the record that
there are numerous employees at Huntley who have job classifications
.identical to those'of employees in other departments of the Companies,`
.and that numerous transfers have occurred between the Huntley Sta-,
,tion and other departments. -
Where employee -organization has been confined to divisional or geo-
graphical sections , the Board has often found appropriate units con-,
forming to such groups ,-' but in instances where - large companies
operate as an integral system and where employee -organization has
occurred on a system -wide basis, as in the present case, the Board has
,repeatedly found that a system -wide unit is appropriate6 We are of
the opinion that the Huntley Station employees do not properly con-
stitute a separate unit , and we shall dismiss the petition of the C. I. 0.'1-
- We now come to 'a disposition of the Welders' contention and the
issues concerning certain categories of employees within the broad
unit.
The Welders introduced evidence to show that welding is a highly.
skilled craft , requiring years of experience and special knowledge.
'The Welders ' union contends, therefore , that the welders employed
by,the Companies S should be established as 'a separate unit. Welders
are carried on the pay roll as mechanics . They were covered by the'
contracts between the Companies and the Association . It appears
from the evidence that there are , approximately 10 employees who
might be classified ' as welders . Only 4 of them spend all their time
welding. • Seven of the 10 are located at the Huntley Station; 2'are,
located at the Dewey Avenue operation center in the city of Buffalo;
and 1 is in the building maintenance department located in the Elec-
tric Building in Buffalo . They have no separate or common super-
visor , but work on jobs assigned them by foremen in other departments.
See Matter of Public Service Electric and Gas Company and International Brotherhood
of Electrical Workers, A F of L, 45 NA. R B.''202, and Matter of Southern California
Gas Company and Utility Workers Organizing Committee, Locals 170 and 193, C. 1. 0., 41
N. L R B . 668, and cases cited therein.
e See Matter of Northern States Power Company of Wisconsin and District 50, United
-Mine Workers of Ame,iea , C. I. 0. and International Brotherhood of Electrical Workers,
A. F. L., 37 N. L R. B. 991; Matter of Pennsylvania Edison Company and Utility Workers
Organizing Committee, Local Union No. 180, affiliated with C. 1. 0., 36 N L. R B 432;
-Matter of Gulf States Utilities Company and International Brotherhood of Electrical
Workers, A . F. L., 31 N. L. R. B . 740; Matter of Tennessee Electric Power Company and
International Brotherhood of Electrical Workers, 7 N. L. R B . 24; and Matter of 'Wisconsin
Power and Light Company and United Electrical, Radio and Machine Workers of America,
Local No. 1134, 6 N. L. R. B. 320.
T We shall , however, accord the C . I. O. a place on the ballot.
s The Welders' petition was filed with respect to the Buffalo Niagara Electric Corporation.
The Welders indicated at the hearing that it would include any welders of the other two
Companies . The record indicates that neither,of the other two companies employs welders.
BUFFALO NIAGARA ELECTRIC CORPORATION 673
,From these facts, it is clear that the welders are not a segregated or
identifiable group, and we conclude that they do not properly consti-
tute a separate unit., We shall dismiss the petition of the Welders.9
In the broad unit the A. F. of L. would exclude supervisory, office,
and clerical employees, but include crew foremen. The C. I. O. would
exclude supervisory employees and crew foremen. The Company
would exclude supervisory employees and , non-working foremen.
Neither the Company nor the C. I. O. took any position as to office
and clerical employees. The Company also desires the exclusion of
plant protection employees, to which neither the A. F. of L. nor the
C. I. O. objected. The Welders stated no preference as to any. of these
groups.'
Supervisory employees,: The C. I. O. would exclude crew foremen on
the grounds that they area part of management. The Company would
exclude non-working foremen and include only those crew foremen
who are not 'non-working foremen. The Company classifies foremen
on its pay roll as A and B foremen. For the most part, the former
are working foremen and the latter are non-working foremen. How-
ever, both classifications include crew foremen. There are approxi-
mately 100 crew foremen. Generally, they are each in'charge of 6 to
15 men. Apparently all the foremen exercise supervisory control, and
they have the power to recommend dismissals. We shall' exclude all
supervisory employees, including crew foremen and working and
non-working foremen.
Office, clerical, and engineering employees: The duties of these
employees were not shown, nor does the record indicate-how many are
on the pay roll. 'They were apparently covered by the prior con-
tracts. Only the Association sought to include them. However, the
Association does not desire to appear on the ballot. The A. F. of L.
would exclude office and clerical employees. Since we ordinarily ex-
clude clerical and technical employees from production units, and
since neither the C. I. O. nor the Company contends that they, should
be included, we shall exclude office, clerical, and engineering employees
from the unit.
Plant protection employees: It appears that the plant protection
employees are armed guards.and perform specialized duties as dis-
tinguished from the usual duties assigned to watchmen. We shall
exclude them from the unit. '
• We find that all production and maintenance employees of the Com-
panies, excluding supervisory employees, crew foremen and working
and non-working foremen, office; clerical, and engineering employees,
0 See Matter of Port Houston Iron Works and International 'Brotherhood of Boilermakers,
Iron Shipbuilders, Welders S Helpers of America, Local No. 711, and International Association
of Maclnntsts, Local No. 832, 46 N L It B. 155
504086-43-vol 46-43
t
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and plant protection'employees,'constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the-Act.
V. THE DETERMINATION OF REPRESENTATIVES
Even though the C. I. O. sought a unit of employees at the Huntley
Station only, we shall, nevertheless, accord the C. I. O. a place on the
ballot. We shall not accord the Association a place on the ballot,"
nor the Welders. We shall direct that the questions concerning repre-
sentation which have arisen be resolved by an election by secret ballot
among the 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 the limitations and additions
set forth in the Direction.
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 9, of National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain represent-
atives for the purposes of collective bargaining with Buffalo Niagara
Electric Corporation, Niagara, Lockport and Ontario Power Com-
pany, and Lockport and Newfane Power and Water Supply Company,
all of Buffalo, New York, 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 direction and supervision of the Regional
Director for the Third Region, acting in this matter as agent for
the National Labor Relations-Board, and subject to Article III, Sec-
tion 10, of said Rules and Regulations, among the employees in the unit
found appropriate in Section IV, above; who were employed during
the pay-roll period immediately preceding the date of this Direction,
including any such employees who did not work during said pay-roll
period because they were ill or on vacation or temporarily laid off,
and including employees in the armed forces of the United States who
present themselves in person at the polls, but excluding'any who have
since quit or been discharged for cause, to determine whether they
desire to be represented by International Brotherhood of Electrical
Workers, affiliated with the American Federation of Labor, or by
Local 239, Utility Workers Organizing Committee, affiliated with the
Congress of Industrial Organizations, for the purposes of collective
bargaining, or by neither.
10 See footnote 4.
11
BUFFALO NIAGARA ELECTRIC CORPORATION 675
ORDER
Upon the basis of the foregoing findings of fact, the National
Labor Relations Board hereby orders that the petitions for investiga-
tion and certification of representatives of employees of Buffalo
Niagara Electric Corporation, Buffalo, New York, filed respectively
by Associated Welders of Western New York, Inc., unaffiliated, and
Local 239, Utility Workers Organizing Committee, affiliated with the
Congress of Industrial Organizations, be, and they hereby are,
dismissed. -
0