Consolidated Telegraph & Electrical Subway Co.

National Labor Relations Board - Board Decisions

Apr 23, 1948

77 N.L.R.B. 300 (N.L.R.B. 1948)

In the Matter of CONSOLIDATED TELEGRAPH & ELECTRICAL SUBWAY
COMPANY, EMPLOYER and LOCAL UNION No. 3, INTERNATIONAL
BROTHERHOOD of ELECTRICAL WORKERS, A. F. L., PETITIONER
Case No. ?,R-7418.-Decided April 23, 1948
Messrs. William. L. Ransom and P. J. Berkson, of New York City,
for the Employer.
Mr. John F. O'Donnell, of New York City, for the Petitioner.
Mr. Herman E. Cooper, by Mr. H. Howard Ostrin, of New York
City, for the Intervenor.
DECISION
AND
ORDER
Upon a petition duly filed, hearing in this case was held at New
York City, on various days between April 30 and May 28, 1947, be-
fore Daniel Baker, hearing officer. The hearing officer's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Consolidated Telegraph and Electrical Subway Company, the em-
ployer named in this proceeding and herein called Subway, constructs,
owns, operates, and maintains underground conduits or ducts in the
Boroughs of Manhattan and the Bronx, New York City. Consoli-
dated Edison Company of New York, Inc., herein called Edison,
owns all the voting stock in Subway and occupies approximately 95
percent of all its duct space. Subway maintains an office in Manhat-
tan, connected by direct telephone communication with the central
offices of Edison, and operates two store yards in Manhattan and a
garage in the Bronx. Employees of Subway work in these fixed lo-
cations and at various jobs upon the streets in Manhattan and the
Bronx. During 1946 Subway purchased materials- and supplies
valued at more than $313,000, of which approximately 24 percent
came from points outside the State.
77 N. L. R. B., No. 41.
300
CONSOLIDATED TELEGRAPH & ELECTRICAL SUBWAY CO. 301
We find that Subway is engaged in commerce within the meaning
of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of Subway.
Utility Workers of America, herein called the Intervenor, is a
labor organization affiliated with the Congress of Industrial Organiza-
tions. Local No. 4 of the Intervenor claims to represent employees
of Subway.
III. THE ALLEGED APPROPRIATE UNIT
A. The contentions of the parties
The Petitioner urges that physical employees of Subway constitute
a separate appropriate bargaining unit and that the Board should
direct an election among them to determine their desires respecting
representation. The System companies and the Intervenor urge that
it is contrary to the policy of the Board to break up a System-wide
unit of closely integrated employees, found appropriate in two prior
representation cases, to which the Petitioner herein, then agreeing but
now dissenting, was a party, and amalgamated by years of bargain-
ing history; and that if the Board should set up a unit for physical
employees for Subway, clerical employees of Subway would remain
in the System-wide unit of clerical employees established in the earlier
cases and the bargaining pattern, heretofore established among cleri-
cal and physical employees in the System, would be disrupted. They
further allege that the Petitioner is merely attempting to regain repre-
sentation among physical employees in the System-wide unit, which
it lost in the earlier representation proceeding in 1940, by seeking at
this time, on an extent-of-organization theory, representation of Sub-
way employees in a separate unit, and that it intends to extend its
organization piecemeal, among all employees of the System companies.
In support of its petition, the Petitioner urges that Subway per se
is not a public utility and its rates are not controlled by the Public
Service Commission of New York State; that System-wide bargain-
ing is disadvantageous to Subway employees because rates of Subway
are not regulated by the Public Service Commission; that employees
of Subway have made vain attempts to break away from the employees
of the other System companies;1 and that, for these reasons, the
petition should be granted.
1 In 1945 , when employees of Subway, comprising Local 4 of the unaffiliated Brotherhood,
refused to accent the decision of the majority of the employees in the System to affiliate
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Consolidated Edison System, herein called the System
Consolidated Edison Company of New York, Inc., herein called
Edison, and its four wholly controlled subsidiary corporations, (1)
Consolidated Telegraph and Electrical Subway Company, herein
called Subway, whose employees are the subject of the instant peti-
tion; (2) Westchester Lighting Company, herein called Westchester;
'(3) Yonkers Electric Light & Power Company, herein called Yonkers;
and (4) New York Steam Corporation, herein called Steam, comprise
what is generally known as the Consolidated Edison System, herein
called the System.
These several System companies, in form separate corporate entities,
but as operating concerns interrelated and commonly controlled by
and through Edison, which operates as a public utility per se and as
a holding company, contribute to the manufacture and distribution
of electrical energy to residents in and about the New York Metropoli-
tan area. Edison, in New York City, and Westchester and Yonkers,
in Westchester County, manufacture and distribute electrical energy,
subject to the public utility control of the Public Service Commission
of the State of New York. Steam manufactures and distributes steam
in New York City. Subway, under contract with the City, which
fixes rent to be charged for the use of the same,' constructs and
maintains ducts, vaults, and manholes under streets in Manhattan
and the Bronx.3 Edison rents from Subway, at rates fixed by the
City,' over 95 percent of all Subway's duct space for the distribution
of electrical energy to customers of Edison in this area.5
with the U . A W -C I 0 , employees of Subway sought separate recognition for them-
selves as Local 4 . The System representatives refused the recognition.
On February 19, 1946 , the Petitioner herein made a similar request and was refused
On March 1 , 1946, the Petitioner filed two petitions for physical and clerical employees
of Subway, respectively ( 2-R-6296 and 2-R-6297 ). Both petitions were dismissed by the
Regional Director , and his position was sustained by the Board on appeal.
On July 2, 1946 , the Petitioner herein filed a petition for seasonal employees of Subway
( 2-R-6769 ). The petition was dismissed . No appeal was taken.
On September 9, 1946, the Petitioner filed a petition for all employees of Subway
( 2-R-6703 ). The petition was dismissed, and no appeal was taken.
On November 19, 1946, the Petitioner herein made a new demand upon Subway for
recognition as bargaining representative of Subway employees , and was refused. On
November 29 it called a strike. The strike was settled by compromise in March 1947.
2 Profits of Subway in excess of 10 percent of the cash investment are turned over to
the City
a Edison, through its Outside Plant Construction Department , performs in Brooklyn
and Queens the same work that Subway performs for it in Manhattan and the Bronx.
4 Although its rates are subject to control and its operations to inspection by New York
City officials, Subway is not a "public utility" in the sense that it is subject to control by
the Public Service Commission of the State of New York
The other tenants are as follows , The Board of Transportation of New York City,
which occupies 3 83 percent of the space ; Third Avenue Railway Company , which occupies
.06 percent of the space ; and New York City Fire Department , which occupies 21 percent
of the space.
CONSOLIDATED TELEGRAPH & ELECTRICAL SUBWAY Co. 303
Subway maintains an office in Manhattan and employs approxi-
mately 150 clerical employees. It also maintains a garage and two
storage yards. Its physical employees, numbering 576 on May 1,
1947, work in the garage and storage yards and on various jobs on
street locations in Manhattan and the Bronx. These physical em-
ployees include crane and equipment operators, truck drivers, skilled
and semi-skilled workmen, and laborers.6 These employees break
open the city pavements, do necessary excavation and shoring work,
open the ducts, and refill the excavations when the cables have been
laid by electrical employees of Edison. The physical employees of
Subway are, for the most part, unskilled and semi-skilled workers,
who work necessarily closely with employees of Edison who lay the
cables in the ducts built by them.7
The operations of the several System companies are integrated
through common ownership and control, through regularly conducted
weekly meetings and frequent contact among executives, and a common
history of collective bargaining over a long period of time, as noted
below.
Common employee policies are the result of close and constant co-
operation respecting the operations among the parent and subsidiary
companies forming the System. A single personnel department is an
implement for uniformity in applying labor relations policies a It
makes and administers contracts, handles grievances, and administers
contract benefits. Through it, employees are transferred from one
System company to another. Employees returning from military serv-
ice exercise their reemployment rights when they are placed in any
one of the System companies. All System companies share in tax,
legal, and medical services. Subway collaborates with Edison as to
purchases. The two corporations share equipment.
C. Clossi fication of physical employees of the System companies by
employment tenure
Employees of the System companies are divided into two general
work classifications, (1) clerical employees and (2) physical or manual
employees. Physical employees are further classified by tenure as
oil-trial, temporary, regular, and seasonal employees.
6 The System companies and the Intervenor have been engaged in a detailed job reclassifl-
cation of System employees since the Intervenor was certified as their bargaining repre-
sentative . The work was not yet complete at the time of the heaiing herein
4A more detailed statement of the business and interrelation of the several System
companies is contained in earlier decisions of the Board involving these companies . Matter
of Consolidated Edison Company of New York , Inc, et at, 4 N. L. It B 71 , 75-83;
Matter of Consolidated Edison Company of New York , Inc, et at, 21 N. L. It. B. 64, 70-72.
8 While Sabway maintains it separate personnel department for its employees , its policies
emanate from the personnel department of Edison , which dictates policies , and interprets
and makes contracts , and to which all grievances aie reported
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Physical employees hired for work in any of the System companies
are normally deemed probationary employees, who may become regu-
lar or permanent employees after 3 months, and before 6 months, of
the initial date of their employment. During this probationary period,
employees are termed "on-trial" employees.
From time to time the several System companies have hired em-
ployees for specific and limited periods to do special work. These
employees are called temporary employees. At the time of the hearing,
this type of work in all System companies was being let out to inde-
pendent contractors.
During the war the System companies, in all, lost approximately
7,000 employees due to military and war leaves of absence. Subway
hired no new employees during this period. In September 1945, Sub-
way began hiring employees on a probationary basis.' In May 1946,
on consultation with Edison, Subway hired physical employees under
a new, classification called "seasonal" employees to perform street
work from May to November 1946, when it was anticipated their
services would no longer be needed. Because these employees were
hired for a limited time and, under the express terms of their employ-
ment, denied the right accorded to "on-trial" employees to qualify as
regular employees after a probationary period, they were paid at a
higher initial rate per hour than on-trial employees.
In November 1946, Subway, on consultation with Edison and the
Intervenor, the recognized bargaining representative of physical em-
ployees of Subway, announced that it would discontinue the category
of seasonal employees,10 and it offered to seasonal employees then on
its pay roll the opportunity of continuing in its employment as regular
or permanent employees at rates set down in the current contract
between the System companies and the Intervenor, with all the in-
surance and other benefits accruing to regular employees as such.
The basic hourly rates for regular employees established by the cur-
rent contract were lower than the prevailing hourly rate for seasonal
employees. This situation gave rise to the strike, noted below.
D. The bargaining history
In 1937, International Brotherhood of Electrical Workers, herein
called the IBEW, organized employees of all the System companies.
These companies and the IBEW and its Local B-828, the only local
of the IBEW to which employees of the several System companies at
9 while these employees were designated "temporary" employees on the pay roll, It was
understood at the time that, if satisfactory , these employees would be retained as regular
employees.
30 Seasonal employees were in November 1946 approaching the end of their anticipated
employment with Subway.
CONSOLIDATED TELEGRAPH & ELECTRICAL SUBWAY Co. 305
that time belonged, executed a contract on a System-wide basis. After
this contract had been executed, the IBEW chartered other locals for
the employees of the System companies.11 These locals executed with
the several System companies contracts substantially uniform with
that of the first basic contract. All contracts were System-wide in
application, and the terms were carried out on a uniform System-wide
basis by the IBEW and the System companies.
In or about December 1939, employees of the System companies
became engaged in a jurisdictional dispute, and, as a result, withdrew
from the IBEW and established themselves as Brotherhood of Con-
solidated Edison Employees, an unaffiliated labor organization.
Locals formerly of the IBEW became locals of this new organization.
Representatives from these several locals constituted an executive
board and became known as the Joint Council. The Joint Council,
as a committee, handled contracts and grievances with the System
companies.
On March 2, 1940, in Cases Nos. R-1739 and R-1740, consolidated
representation proceedings, the Board issued a Decision and Direction
of Elections '12 in which Amalgamated Utility Workers Union C. I. 0.,
the unaffiliated Brotherhood, the IBEW, and the System companies
agreed, and the Board found, that separate System-wide units of (1)
clerical and (2) physical employees were appropriate for employees
of all the System companies. The unaffiliated Brotherhood won the
elections conducted in these two separate units and on July 11, 1940,
the Board issued a Certification of Representatives in these
proceedings .13
Thereafter, through its Joint Council, the unaffiliated Brotherhood
executed with the System companies a master agreement, System-
wide in scope. The comprehensive System-wide provisions were
thereafter incorporated in several substantially uniform agreements
between each System company and the Joint Council and the par-
ticular local representing the employees of each System company.
These agreements, as modified, remained in effect until August 1945.
In 1945, a majority of members of the unaffiliated Brotherhood
voted to affiliate with the U. A. W.-C. I. O. The dissenters, among
whom were employees of Subway, members of Local 4 of the un-
affiliated Brotherhood, took the name of Independent Brotherhood
"Two locals were set up, one for the employees of the electrical, and one for the em-
ployees of the gas, divisions of Edison; one local for employees of Brooklyn Edison Com-
pany, Inc, and one for New Yoik and Queens Electrical Light & Power Company (both of
these companies are now dissolved and are merged with Edison) , one local for employees of
Subway ; and one local for employees of Westchester and Yonkers.
1' Matter of Consolidated Edison Company of New York , Inc., 21 N L. R B 65.
1E 25 N. L . R. B. 294.
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of Consolidated Edison Employees. For this defection, Local 4 was
suspended by its parent organization, the Intervenor herein.
In September 1945, the System companies, the Intervenor, Inde-
pendent Brotherhood of Consolidated Edison Employees (the dis-
senters who resisted affiliation with the U. A. W.-C. I. 0.), and Local
3 of the IBEW (the Petitioner in the instant case), entered into an
agreement for separate consent elections in Case No. 2-R-5938, among
employees in the System-wide units for clerical and physical em-
ployees of all System companies, respectively, which had been agreed
to be appropriate, and found by the Board to be appropriate, in the
1940 representation proceedings noted above. The Intervenor herein
won both elections on December 21, 1945.
On January 17, 1916, the System companies and the Intervenor by
its Joint Council executed a System-wide basic contract to last until
November 1, 1947. and thereafter from year to year with a 60-day
automatic renewal clause."E Thereafter, on or about February 1,
1946, all locals but Local 4, which was still suspended, executed similar
agreements with their respective System companies. On June 21,
1946, Local 4, having been reinstated, executed a similar uniform
agreement with Subway.
In November 1946, seasonal employees then listed on the pay roll
of Subway were nearing the close of their special employment period.
Subway, after consultation with the central personnel department of
Edison and the Intervenor, the recognized bargaining representative,
as indicated above, announced its intention of giving up the practice
of hiring seasonal employees, as such. It offered to all seasonal em-
ployees remaining on its pay roll the status of regular employees,
with the base rate of pay and the benefits and privileges guaranteed
• to regular employees under the contract. Since seasonal workers
had been hired at a premium pay because of the limited terms of their
expected employment, their proposed transformation from seasonal
to regular employees meant an immediately lower hourly rate of pay.
Some seasonal employees resented the lower pay and joined the Peti-
tioner, who called a strike among employees of Subway.15
E. Conclusion
Where employees in an integrated multi-plant unit have bargained
with their employer over a period of years, the Board has been reluc-
tant to disturb the multi-plant unit so established, and to set up em-
ployees at any one plant in a separate bargaining unit. The Board
i' This basic agreement was thereafter amended to extend to January 1, 1947, and renew-
able yearly thereafter with a G0-day notice clause.
15 This strike was settled by compromise. The strikers were reinstated.
CONSOLIDATED TELEGRAPH & ELECTRICAL SUBWAY Co. 307
has followed the policy of preserving multi-plant units both where
such units have been established by the parties without Board certi-
fication, and where the plants have been widely separated and transfer
of employees among the plants and personal contacts of employees at
the several plants have been negligible or entirely wanting.1°
In the instant case, we note that, although in form Subway is a
separate corporation, it is owned, controlled, and regulated by Edison;
that Subway has undergone no change in operations or control during
the entire period; that bargaining has been on a, multi-plant or System-
wide basis for clerical and physical employees of the System com-
panies; that Subway functions as a department for Edison for street
work in Manhattan and the Bronx, performing in those boroughs the
same kind of work which the Outside Plant Department of Edison
performs for Edison in Brooklyn and Queens; and that Subway em-
ploys physical employees in jobs common to employees, not only in the
Outside Plant Department of Edison, but in other System companies.
Under these circumstances, we are of the opinion that, in view of the
nature of their work and the long history of collective bargaining
on a System-wide basis, during a part of which the Petitioner served
as bargaining representative, not only for physical but also for cleri-
cal employees, a separate unit for physical employees of Subway would
not be appropriate. For this reason, we shall dismiss the petition
filed in this proceeding.17
Since we find no appropriate unit within the scope of the petition,
we find that no question exists concerning the representation of em-
ployees of Subway in an appropriate bargaining unit, within the
meaning of Section 9 (c) (1) of the Act.
ORDER
IT IS HEREBY ORDERED that the petition for investigation and certifica-
tion of represent; tives of employees of Consolidated Telegraph
Electrical Subway Company, New York City, filed herein by Local
Union No. 3, International Brotherhood of Electrical Workers,
A. F. L., be, and it hereby is, dismissed.
10 biattei of Standard Brands, 75 N. L. R B 394 ; and cases cited therein.
' In view of the time consumed in processing this petition, we find it unnecessary to
pass upon the issue of contract bar urged by the Employer and the Intervenor at the time
of the hearing.