Central New York Power Corp.

National Labor Relations Board - Board Decisions

Oct 25, 1945

64 N.L.R.B. 461 (N.L.R.B. 1945)

In the Matter of CENTRAL NEW YORK POWER CORPORATION and
UTILITIES DIVISION , DISTRICT 50, UNITED MINE PORKERS OP AMERICA
In the Matter of CENTRAL NEW YORK POWER CORPORATION , NIAGARA,
LOCKPORT & ONTARIO POWER COMPANY ( EASTERN DIVISION) AND
NEW YORK POWER AND LIGHT CORPORATION ( ONEIDA DISTRICT) and
INTERNATIONAL BROTHERHOOD Or ELECTRICAL WORKERS, AFL
Cases Nos. 3-R-1019 and 3-R-1037, respectively.Decided October
p5, 1945
Messrs. LeBoeuf d Lamb, by Mr . Lawman Martin , of New York'
City, and Mr. Frederick P. Smith, of Syracuse, N. Y., for the Com-
panies.
Mr. Samuel E. Angoff , of Boston , Mass. , for the UMW.
Messrs. McMahon c' Crotty, by Mr. Peter J. Crotty, of Buffalo,
N. Y., for the IBEW.
Messrs. Costello, Cooney cl; Fearon, by Mr . M. Harold Dwyer, of
Syracuse, N. Y., for the League.
Mr. Thomas R. Traverse , of Watertown , N. Y., for the Association.
Mr. Jack Mantel , of counsel to the Board.
DECISION
DIRECTION OF ELECTION
AND
ORDER
STATEMENT OF THE CASE
Upon separate petitions duly filed by Utilities Division , District
50, United Mine Workers of America and International Brotherhood
of Electrical Workers, AFL, herein respectively called the UMW
and IBEW , alleging that questions affecting commerce had arisen con-
cerning the representation of employees of Central New York Power
Corporation, herein called CNY, Niagara, Lockport R, Ontario Power
Company (Eastern Division), herein called NEO, and New York
Power and Light Corporation (Oneida District), herein called NYP,
and collectively referred to as the Companies, the National Labor
Relations Board provided for an appropriate consolidated hearing
64 N. L R. B., No. 84.
461
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
upon due notice before Francis X. Helgesen, Trial Examiner. The
hearing was held at Syracuse, New York, on July 13, 1945. The
Company, the UMW, the IBEW, Utility Workers League, herein
called the League, and Gas & Electric Workers Association, 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 hearing are free from prejudicial
error and are hereby affirmed. All parties were afforded an oppor-
tunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. TIIE BUSINESS OF THE COMPANIES
Central New York Power Corporation, Niagara, Lockport & On-
tario Power Company, and New York Power and Light Corporation
are public utility companies engaged in the production, transmission,
and distribution of gas and electric energy in the State of New York.
Niagara Hudson Power Corporation, a New York corporation, owns
all of the interests of the afore-mentioned companies. The employees
involved in this proceeding are employed in the Central Division of
the Niagara Hudson System, the main offices of which are located
at Syracuse, New York. The Companies purchase annually coal, cop-
per, cables, and other materials valued at several millions of dollars,
approximately 25 percent of which is received from points outside
the State of New York. In the course of its business, the Companies
supply substantial amounts of energy to industries engaged in the
production of material for national defense, to railroad companies,
and to United States Post Offices.
The Companies admit that they are engaged in commerce within
the meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
Utilities Division, District 50, United Mine Workers of America,
is a labor organization admitting to membership employees of the
Companies.
International Brotherhood of Electrical Workers, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership employees of the Companies.
Utility Workers League is a labor organization admitting to mem-
bership employees of the Companies.
i Public Utility Employees Organization of Central New York, herein called the PUEO,
and unaffiliated labor organization which had a contract with the Companies, was served
with notice of. the hearing. The record indicates that this organization has been dissolved.
CENTRAL NEW YORK POWER CORPORATION 463
Gas & Electric Workers Association is a labor organization admit-
ting to membership employees of the Companies.
III. THE QUESTION CONCERNING REPRESENTATION
The Companies had collective bargaining contracts with the
League and the Association at the time the petitions herein were filed.2
As conflicting claims with respect to the appropriate unit were made
by the two petitioners, the Companies refused to grant recognition to
either union as the exclusive bargaining representative of their em-
ployees until the matter was resolved by the Board.
Statements of a Board agent, introduced into evidence at the hear-
ing, indicate that the UMW and the IBEW each represents a substan-
tial number of employees in the unit each seeks to establish.3
We find that questions affecting commerce have, arisen concerning
the representation of employees of the Companies, within the mean-
ing of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
All the parties substantially agree that all technical, office, and
clerical employees 4 of the Companies, including meter readers and
working foremen, but excluding all production and maintenance em-
ployees, part-time employees, monthly paid employees, confidential
clerical employees, and all supervisory employees above the rank of
working foreman, constitute an appropriate unit. The parties are
in dispute, however, concerning the geographical limitation of the
unit, and whether PBX operators should be excluded as confidential
employees, as contended by the Company.
As stated above, the Companies are all subsidiaries of the Niagara
Hudson Power Corporation, the entire network of its operations being
known as the Niagara Hudson System, which is composed of three
major divisions, Eastern, Western, and Centrals The UMW has
separate division-wide contracts covering the production and main-
tenance employees and the technical, office, and clerical employees,
respectively, in the Eastern Division." The IBEW has separate di-
2 the Companies , the League , nor the Association contends that the contracts
are a bar to this proceeding
8 The Board agent reported that the UMW submitted 63 authorization cards and that
there were 106 employees in the unit sought by the UMW.
The Board agent also reported that the IBEW submitted 171 application cards and that
there were 570 employees in the unit sought by the IBEW.
The League and the Association claim an interest in the proceeding by virtue of their
past contracts with the Companies
The job classifications of these employees are listed in Appendix A.
6 The following companies operate in each division - Dastern-NYP ; Western-NLO,
Buffalo Niagara Electric Corporation, and Lockport and Newfane Power and Water Supply
Company ; and Central-CNY, the eastern division of NLO, and the Oneida District of NYP.
6 These contracts do not cover the employees of NYP (Oneida District ) because they are
employed in the Central Division.
464 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vision-wide contracts covering the same groups of employees in the
Western Division.7
About 1 year before the hearing, the geographical area now known
as the Central Division was comprised of 3 subareas which were re-
ferred to as the Syracuse, Watertown, and Utica subregions. The
technical, office, and clerical employees in this area were covered by 3
separate bargaining contracts. The League represented the Syracuse
group; the Association represented the Watertown group; and the
now defunct PUEO represented the Utica group. After the above
contracts were negotiated, the Companies consolidated the various
subregional operations into what is now known as the Central Divi-
sion, comprised of 23 local districts with headquarters at Syracuse,
New York.
The Companies and the IBEW 8 seek a division-wide unit of all
technical, office, and clerical employees in the Central Division, com-
parable to the units presently existing in the other 2 divisions of the
Niagara Hudson System. The UMW contends that the same group
of employees in the former Utica subregion should constitute a sepa-
rate unit, and the League urges that a separate unit of such employees
in the former Syracuse subregion is appropriate. In effect, the UMW
seeks to represent the employees in 7 of the 23 districts of the Central
Division; 9 and the League likewise requests only a portion of the 23
districts. The Association takes no position with respect to the appro-
priate unit.
Although the UMW concedes that ordinarily a division-wide unit
is the most desirable, it contends in this instance that the Board should
take cognizance of the past bargaining history of the technical, office,
and clerical employees in the Central Division, which had been con-
ducted on a smaller than division-wide basis. However, in view of
the elimination of the subregional plan of operation, it appears that
the basis on which this pattern of collective bargaining was estab-
lished no longer exists 1o At the present time, all the employees in
the Central Division, which includes those on the pay rolls of CNY,
NLO (eastern division), and NYP (Oneida District), are under the
supervision and direction of the vice president of the Niagara Hudson
System, who is the chief executive officer of the Central Division.-
The record indicates that there is a substantial transfer of employees
7 These contracts do not cover the employees of NLO (eastern division ) because they
are also employed in the Central Division.
8 The IBEW is the current bargaining representative for all production and maintenance
employees in the Central Division.
9 The UDIW is attempting to represent the employees who formerly belonged to the PUEO.
The latter's contract for the Utica'group included employees of CNY and a portion of NLO.
10 See Matter of Atlas Powder Company , 62 N. L R B. 1179.
"This person is also a director or the authorized representative for the subsidiaries
which operate within the Central Division , and was a signatory to virtually all of the
prior bargaining contracts involving the Companies operating in the Central Division.
CENTRAL NEW YORK POWER CORPORATION 465
among the 23 districts in the division. In view of the integration in
the operations of the Central Division, the existence of a division-wide
bargaining unit of production and maintenance employees in the Cen-
tral Division, and the collective bargaining history of the Eastern and
Western Divisions, we are of the opinion that the separate units sought
by the UMW and the League are inappropriate; and we shall there-
fore dismiss the petition of the UMW. Accordingly, we find that the
Companies constitute a single employer within the meaning of Sec-
tion 2 (2) of the Act, and that the technical, office, and clerical em-
ployees of the Central Division constitute an appropriate bargaining
unit.
The Company would exclude from the unit PBX operators con-
tending that they are confidential employees. These employees handle
incoming and outgoing long distance telephone calls, some of which
are for executives of the Companies. The record does not indicate that
the PBX employees, in the normal course of their duties, acquire confi-
dential information in regard to the Companies' labor relations.
Accordingly we shall include them in the unit."
We find that all technical, office, and clerical employees of the Cen-
tral Division of the Niagara Hudson System, including meter readers,
working foremen, and PBX operators,13 but excluding all production
and maintenance employees, part-time employees, monthly paid em-
ployees, confidential clerical employees, all employees above the rank
of working foremen, and all other supervisory employees with author-
ity to hire, promote, discharge, discipline, or otherwise effect changes
in the status of employees, or effectively recommend such action, con-
stitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has 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 3, as amended, it is hereby
12 See Matter of Union Switch and Signal Company, 63 N L R B 974
13 Included within the unit are the employees whose job classifications are listed in
Appendix A.
670417-46-vol 64--31
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
'DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Central New York
Power Corporation, Niagara, Lockport & Ontario Power Company
(Eastern Division), and New York Power and Light Corporation
(Oneida District), all of Syracuse, 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, Sections 10 and 11, of said Rules and Regula-
tions, 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 employees who did
not work during said pay-roll period because they were ill or on va-
cation 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 those employees who have since quit or been dis-
charged for cause and have not been rehired or reinstated prior to
the date of the election, to determine whether they desire to be repre-
sented by International Brotherhood of Electrical Workers, AFL,
by Utilities Division, District 50, United Mine Workers of America,
by Utility Workers League, by Gas & Electric Workers Association,
for the purposes of collective bargaining, or by none.14
ORDER
Upon the basis of the foregoing findings of fact and upon the
entire record in the consolidated proceeding, the National Labor
Relations Board hereby orders that the petition for certification of
representatives of employees of Central New York Power Corporation,
Syracuse, New York, filed by Utilities Division, District 50, United
Mine Workers of America, in Case No. 3-R-1019, be, and it hereby is,
dismissed. .
MR. GERARD D. REILLY took no part in the consideration of the above
Decision, Direction of Election, and Order.
APPENDIX A
Assistant Results Foreman A
Assistant Supvr.-Credit & Collection
34 At the time of the hearing , the UMW, the League , and the Association were undecided
whether or not they desired to appear on the ballot of a division -wide unit, as found
herein If any of these organizations decides to withdraw from the election , it must
notify the Regional Director of such determination , in writing, within five ( 5) days from
the date of this Decision and Direction of Election.
CENTRAL NEW YORK POWER CORPORATION 467
Assistant Supvr.-Stenographic Dept.
Assistant Supvr.-Tabulating Section
Balance & Control Clerk
Bill Information Clerk
Bill Printer Operator
Blueprint & Photostat Operator A and B
Cadet
Cash Poster
Chief Operator-Cust. Serv. Tel.
Clerk A, B, C, D, and E (except Personnel Dept. Employees)
Coke Sales Dispatcher
Coke Sales Inspector
Coke Salesman
Collector
Commercial Representative A and B
Commercial & Indust'l Representative
Construction Inspector A, B, and C
Cust'r Service Representative A-PC and B-PC
Customer Service-Telephone Opr.
Designer A, B, and C
Display Man A and B
Display Helper
Distribution Cost Analysis Clerk
Distribution Inspector A, B, C, and D
Distribution Planner A, B, and C
Draftsman A, B, C, and D
Engineer A
Floor Attendant A, B, and C
Floor Supervisor
Gas Distribution Inspector and Planner
Gas Operations Clerk
Head Clerk-Addressograph
Head Receiving Teller
Home Lighting Supervisor
Home Service Supervisor
Home Service & Lighting Rep. A, B, and C
Instrument Man A and B
Key Punch Operator A and B
Load Supervisor A
Matching & Checking Clerk
Matron
Meter Book Clerk
Office Appliance Operator
Office Messenger
Outside Investigator
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Photographer A and B
Plant Cost Analysis Clerk
Plant Inventory Recorder A, B, C, and D
Receiving Teller
Receptionist-Customers' Service
Receptionist-General
Right of Way Man A
Rodman A and B
Service Dispatcher A and B
Service Inspector
Shift Technician
Stenographer A and B (Except Personnel Dept. Employees)
Surveyor A and B
Tabulating Machine Operator A, B, and C
Technician A, B, C, and D
Teller Clerk
Transfer & Adjustment Clerk
Transportation Dispatcher
Typist A and B (Except Personnel Dept. Employees)