Duke Power Co.

National Labor Relations Board - Board Decisions

Jun 21, 1971

191 N.L.R.B. 308 (N.L.R.B. 1971)

308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Duke Power Company, Lee Steam Station and Sam H.
Moody, Petitioner , and International Brotherhood
of Electrical Workers, Local No. 957, AFL-CIO
Duke Power Company, Dan River Steam Station and
V. A. White, Petitioner , and Local Union No. 407,
International Brotherhood of Electrical Workers,
AFL-CIO, CLC
Duke Power Company, Allen Steam Station and John
T. Gaston, Petitioner , and International Brother-
hood of Electrical Workers Local 962, System
Council U-20, AFL-CIO
Duke Power Company and System Council U-20, In-
ternational Brotherhood of Electrical Workers,
AFL-CIO, Union Petitioner. Cases ll-RD-168,
11-RD-169, 11-RD-171, and 11-UC-10
June 21, 1971
DECISION , ORDER CLARIFYING UNIT, AND
DIRECTION OF ELECTIONS
BY MEMBERS BROWN, JENKINS, AND KENNEDY
Upon petitions duly filed under Section 9(b) and 9(c)
of the National Labor Relations Act, as amended, a
hearing was held before Hearing Officer Martin L. Ball,
Jr., on November 12, 1970. Following the hearing, pur-
suant to Section 102.67 of the National Labor Rela-
tions Board Rules and Regulations and Statements of
Procedure, Series 8, as amended, these cases were
transferred to the National Labor Relations Board for
decision. Thereafter, the Employer and Union filed
briefs. The Union has also filed a motion to dismiss the
petitions in Cases 1l-RD-168, 11-RD-169, and 11-
RD-171 for insufficient and invalid showing of interest,
or, in the alternative, for administrative investigation of
sufficiency and validity of showing of interest.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with these cases to a three-member panel.
The Board has reviewed the Hearing Officer's rulings
made at the hearing and finds that they are free from
prejudicial error. The rulings are hereby affirmed.
Upon the entire record in these cases, including the
briefs, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The Petitioners in Cases 11-RD-168, 11-RD-
169, and 11-RD-171, all employees of the Employer,
assert that the Unions therein named, all labor organi-
zations, are no longer the representatives, as defined in
Section 9(a) of the Act, of the employees designated in
191 NLRB No. 41
the respective petitions. Further, the Union-Petitioner
asserts that it represents certain of the Employer's em-
ployees.
Petitioners in each of the above-stated RD cases seek
an election to decertify the incumbent Union. Incum-
bent Locals 957, 407, and 962 and System Council
U-20 of the International Brotherhood of Electrical
Workers, hereinafter referred to as the I.B.E.W. or the
Union, urge that these petitions be dismissed because
they fail to state an appropriate unit coextensive with
the present collective-bargaining unit. The Unions,
herein collectively referred to as System Council, argue
that the only appropriate unit comprises all of Duke
Power's employees the Union represents. In accord
with System Council's assertion, it has also filed a unit
clarification petition requesting that the Board find that
the present collective-bargaining unit is composed of all
the Employer's employees it represents. The Employer,
on the other hand, asserts that the collective-bargaining
history does not establish that there has been a merger
of all the groups of employees represented by the Union
into an overall systemwide bargaining unit. The System
Council also claims that the petition in Case 11-RD-
171 was filed within the 60-day insulated period prior
to contract termination and therefore the Board's con-
tract-bar rule prevents an election.'
Duke Power Company is a public utility engaged in
the generation and distribution of electrical power
throughout the States of North and South Carolina. It
is organized into two major operating groups. Its retail
operations are handled through the Retail or Distribu-
tion Department. The generation of power is handled
through the Power Operations group which engages in
the construction and maintenance of transmission lines
and the operation of power plants (both hydro and
steam), substations, and sundry other facilities that re-
late to the production and delivery of electric power to
the Distribution Department at points throughout the
serviced area.
In 1938, the Employer negotiated its first contract
with a Local of I.B.E.W. Subsequently, as more em-
ployees authorized I.B.E.W. to represent them and the
Employer recognized the Union as its employees' rep-
resentative, either by Board certification or by agree-
ment of the parties, additional locals were chartered.
Bargaining at this time assumed the form of group
negotiation of a single contract covering all employees
represented by the I.B.E.W. In 1948, an informal "sys-
tem council" was organized among the locals in order
to structure its group bargaining. This informal "sys-
' The System Council has also sought to have the RD petitions dismissed
on the ground that the decertification authorizations were procured with the
assistance of supervisory employees and through misrepresentation as to the
nature of the authorizations This is a separate matter for administrative
determination and investigation and will not be considered in the present
proceeding
DUKE POWER COMPANY 309
tem council" was officially chartered by the I.B.E.W.
in 1959 as "System Council U-20" pursuant to its In-
ternational constitution.2 This System Council forms
the basis for I.B.E.W.'s present collective-bargaining
structure with this Employer.
Since its inception, System Council U-20's bylaws
have provided that it "shall have authority to deal with
the Duke Power Company of Charlotte, North
Carolina as the authorized agent of such local unions
in all matters pertaining to collective bargaining," and
that the Council was formed by the local Unions with
the object to establish a central representative body.'
The System Council's bylaws can be amended by a
two-thirds vote of all the composite members of the
affiliated local Unions.' The officers of the System
Council include a business manager, president, and an
executive board made up of one delegate from each
affiliated local union.' Officers of the Council, as well as
additional delegates from the affiliated local Unions,
along with the International representative, compose
the Union's negotiating committee.' When the commit-
tee finally completes negotiation of the agreement, it is
submitted to the membership for ratification. Ratifica-
tion is based on a majority of all the votes cast by the
composite members of the affiliated locals.
Similarly, the Employer's bargaining structure is
highly centralized. All contract negotiation is done by
its central personnel department. No supplemental
agreements are negotiated, and, with the exception of
handling the initial steps in the grievance procedure,
local managers and other supervisory personnel are not
otherwise involved in the negotiation and grievance
procedures.
In 1968, the Union filed a petition for an election in
a unit composed of the entire Distribution Department.
Although contracts previously negotiated included
groups of employees in the Power Department (re-
ferred to by the parties as "fragments") no mention was
made of these employees in the petition and in the
subsequent Board proceedings. The Board issued a
decision' directing an election be held among the em-
ployees in the Distribution Department. The Union
won the election.
2 Article XVII, section 22 of the constitution of the I.B.E W From 1959
to July 1969, it was officially chartered as the "System Council U-20 of
Local Unions 356, 407, 745, 913, 957 and 962 of the International Brother-
hood of Electrical Workers." However, as the result of the merger of three
locals, the System Council is presently known as "System Council U-20 of
Local Unions 407, 957, and 962."
' By-Laws of System Council of IBEW Local Unions on the Property of
Duke Power Company (Union Exh. 798, art 1, secs. 1 and 2).
° Id, art. X, sec 2.
Id., art. IV, sec. I
c Id., art. IX, sec. 1
Duke Power Company, 173 NLRB 240.
When the parties began negotiation of the 1969 con-
tract, the Employer requested that certain of the Power
Department "fragments" be excluded from the cover-
age of the agreement. The Employer did not seek the
exclusion of the power stations involved in the present
decertification petitions. It is clear, though, that the
disputed "fragments" were included within the cover-
age of the 1969 collective-bargaining agreement even
though the Employer and the Union disagree as to the
understanding which led to the inclusion.
At the next contract negotiation sessions for the 1970
contract the exclusion of the nonsteam plant "frag-
ments" was a prime negotiation topic. According to the
Union's "Minutes of Negotiation," at almost every
meeting the Employer discussed the proposed exclu-
sion. Further, it appears that it was this topic which
primarily prevented the Union's acceptance of the 1970
agreement. At the time of the hearing the Union still
had not accepted the proposed 1970 agreement because
of the Employer's insistence on the exclusion of these
"fragments."
On October 5, 1970, a decertification petition was
filed for the Employer's Lee steam power plant in
Pelzer, South Carolina. Shortly thereafter, employees
at two other steam power plants, Dan River and Allen,
also filed RD petitions on October 22, 1970, and
November 2, 1970, respectively. The Union then, on
November 2, 1970, filed a unit clarification petition
embracing all the "fragment" employees. Because of
the similarity of issues involved in these cases the peti-
tions have been consolidated.
As stated, the Employer's operations are divided into
two major divisions: namely, Retail or Distribution and
Operations. At issue in this case is the status of groups
of employees represented by the Union in the Opera-
tions Department, These groups are described by the
parties as "fragments." For our purposes 'here, the
"fragments" may be further subdivided into the steam
stations and various groups of other employees. The
Union represents the employees at three of the Em-
ployer's eight steam stations and the decertification pe-
titions filed involve these three steam stations!
The Dan River Steam Station came under the cover-
age of the 1967 collective-bargaining agreement after
the Union was certified as the result of a Board-con-
ducted election in 1966. There are approximately 70
employees in this group. The Lee Steam Station em-
ployees were first covered by the 1968 collective-bar-
gaining agreement following a voluntary recognition by
the Employer in 1967. There are 69 employees in this
group. Finally, the Allen Steam Station employees were
brought under the coverage of the 1969 collective-bar-
gaining agreement after a Board election and certifica-
8 Not clear from the record is the total number of unrepresented em-
ployees in the Employer's Operations Department.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion in 1969. There are approximately 101 employees
in this group.
At two of the above-mentioned steam stations, Dan
River Steam Station and Allen Steam Station, the
Union sought, and the Board has certified, the Union
as the employees' bargaining representative in each of
these steam stations. The factors which led to the
Board determinations are readily evident. Steam sta-
tions are at widely diverse geographical locations. Each
plant is a virtually autonomous self-contained entity.
Each station's superintendent reports directly to the
manager of power production. The superintendents are
in charge of the day-to-day administration of the collec-
tive-bargaining agreement> at the steam station. They
purchase minor items. Records pertaining to payroll,
work history, and plant activities are kept at the steam
stations. Hiring, promotion, discharge, layoff, and re-
call are done locally at each steam station. There is no
formal transfer of employees from one steam station to
another. Seniority is by. classification at each steam
station. Finally, supervisors of one steam station have
no authority over any other station.
The other "fragments" involved in the Union's unit
clarification petition comprise groups of employees
scattered throughout the Employer's system. The size
of these employee groups varies from as many as 22
employees to 1 or 2 employees. At some locations the
employee group perhaps would constitute an independ-
ent appropriate unit for the purpose of collective bar-
gaining whereas at other locations the group or "frag-
ment" of employees would not so qualify under Board
standards. The record however does not reveal an in-
stance where the Board has ever certified the Union as
the bargaining representative for one of these groups of
employees. It may be assumed that the Employer has
in all instances voluntarily recognized the Union as the
representative of these^employees. Groups of these em-
ployees have been included in the coverage of the par-
ties' collective-bargaining agreement prior to 1959, and
others as recently as the 1969 agreement.'
' More specifically these "fragments" comprise the following:
(1) Hydraulic maintenance employees located at Great Falls, South
Carolina. These employees perform all the maintenance, repair, and upkeep
on the hydro plants throughout the Duke Power System. The superinten-
dent in charge of this operation reports directly to the assistant vice presi-
dent in charge of operations at the Employer's main offices in Charlotte,
North Carolina Hiring, promotion, discharge, layoff, and recall are adminis-
tered by this superintendent. There is no interchange with employees else-
where in Duke Power, and their seniority is based on their job classifications
in the hydraulic maintenance department. There are approximately 22 em-
ployees in this group. This group was most recently covered by the 1967
collective-bargaining agreement
(2) Great Falls labor crew at Great Falls: These employees are supervised
by the hydraulic maintenance superintendent and were first covered by the
collective-bargaining agreement in 1967.
(3) Substation operators and servicemen- These employees are located in
various areas of the Employer 's Operation Department, particularly at some
of the Employer's several substations, and compose the bulk of the remain-
ing employees represented by the I.B.E.W. Approximately 33 employees
are in this category.
Prior to the 1968 Board decision and election which
created the Distribution Department as a single bar-
gaining unit, the collective-bargaining agreement, arti-
cle I entitled Recognition, listed each of the groups of
employees covered by the agreement according to the
local union representing the group, the Company's op-
erating department, and geographic location. After the
establishment of the Distribution Department unit, the
groups of employees covered were described in the
1969 agreement, article I, as consisting of all the em-
ployees in the Retail Operations (Distribution) Depart-
ment, the several steam stations in the Power Opera-
tions Department represented by the Union, and other
named groups of employees in the Power Operations
Department.
All agreements since 1962 have been signed by both
System Council U-20, and each of the local Unions. The
cover sheet of the agreement states that the agreement
was negotiated by the System Council U-20. The most
recent 1969 agreement specifically states that it is an
agreement "Between Duke Power Co. and System
Council U-20 (Local Unions 355, 407, 745, 913, 957,
and 962)." The agreements set forth the wage scales for
all job classifications covered by the agreement. There
are no supplemental agreements. Seniority is computed
on a plant-by-plant basis and there is no companywide
seniority.
There has been a continuous practice between the
System Council and Duke Power of adding groups of
employees to the overall contract coverage. This oc-
curred with respect to both the Distribution Depart-
ment employees prior to the Board's certification of the
departmentwide unit and to the employees involved in
these cases. The Union admits that prior to 1967 there
was also a practice whereby union recognition was
withdrawn with respect to certain groups of employees.
According to the testimony of the former business
manager for the System Council this practice stopped
in 1967 when he discovered that it was "illegal" and
refused to further acquiesce in this practice of with-
drawal. It has not been done since that time.
The I.B.E.W. contends that the RD petitions filed
for each of the three steam power plants state an inap-
propriate unit and should therefore be dismissed. The
steam power plants, the I.B.E.W. contends, have been
incorporated into a larger collective-bargaining unit
composed of all employees represented by the Union.
It is argued that through the years there has developed
a practice of immediately incorporating groups of em-
ployees who have expressed their wish to be repre-
sented by the Union, either by Board election and cer-
tification or by agreement of the parties, into a
collective-bargaining unit covering all employees repre-
sented by the I.B.E.W. In other words, the Union con-
tends that System Council U-20 has-engaged in, joint
bargaining for the several: locals, representing Duke^Po-
DUKE POWER COMPANY
wer's employees. It supports the above contentions
with evidence showing the long period of negotiating a
single contract covering all Employer's employees; the
highly centralized negotiation method used by both the
Union and the Employer; and the System Council's
method of ratification-majority vote of all employees.
For similar reasons the I.B.E.W. contends in its UC
petition that the Board should now include all the
"fragment" employees in the bargaining unit hereto-
fore found appropriate by the Board in Duke Power
Company, 173 NLRB 240.
The Employer, on the other hand, contends that the
decertification petitions are proper and that either the
unit clarification petition should be dismissed or, in any
event, the Board should now find that previous Board
certifications did not include the "fragment" employees
and that the Distribution Department unit cannot be
clarified to add them. It takes the position that al-
though collective-bargaining; negotiations have over
many years been centralized it was only for conven-
ience of the parties and was not, intended to constitute
joint bargaining for a single unit of all represented em-
ployees. This, it says, is expressed in the collective-
bargaining agreement's recognition , clause and the
agreement's subscriptions wherein each local, as well as
the System Council, signs. It further argues that even
if the Board has found that there has been joint bargain-
ing the parties have developed a practice of dropping
from the coverage of the agreement groups of em-
ployees when the Union no longer represents a
majority. Therefore, the decertification petitions are
proper since the parties have the understanding that the
agreement will only cover groups of employees where
the Union represents a majority. Further, the Union's
efforts through the posture of the decertification peti-
tions and the unit clarification petition to create a unit
composed of all employees it represents is inappropri-
ate since: (1) the collective-bargaining practice cannot
be interpreted as joint bargaining; (2) there is no iden-
tifiable characteristic of either the Employer's opera-
tions or geography which would make this proposed
unit appropriate; and (3) it is inequitable to allow
groups of employees to be swallowed into a much
larger collective-bargaining unit without their consent
and with no possibility of withdrawal."
30 The I.B.E.W has further argued that the decertification petition filed
at Allen Steam Station was not timely filed under the Board 's contract-bar
rule. The formal RD petition was filed on November 2, 1970. The termina-
tion date of the contract was December 31, 1970. Therefore the formal
petition was filed within the insulated 60-day period prior to the contract's
termination. The Employer, however, points out that prior to the filing of
the formal RD petition several employees had sent to the Regional Office
a letter dated October 27, 1970, requesting a "decertification election " The
Regional Office then forwarded by mail a request that a formal RD petition
be filed, which was promptly filed pursuant to the Regional Director's re-
quest on November 2 The Employer argues that the date of the request for
a decertification election be considered the filing date rather than later filing
of the formal petition pursuant to the Regional Director 's request. We agree
311
It is uncontested that Duke Power and System Coun-
cil U-20 have for years negotiated and entered into
contracts covering all employees represented by the
Union. The Union claims that this was joint bargain-
ing. The Employer says it was done only for conven-
ience. The facts appear to support the Union's position.
The contract negotiated covered every facet of the em-
ployee's relationship with his employer except for se-
niority. The local Unions have given almost all their
negotiating power to the System Council. Ratification
of the agreement derived by the negotiating efforts of
the System Council is accomplished by a majority vote
of all union members in the Duke Power system.
Indeed, in the previous Duke Power decision dealing
solely with the Distribution Department, the Board
characterized the negotiation process in a similar man-
ner:
The current contract, as with several preceding it,
provides for uniform conditions of employment,
including classifications and wages. All provisions,
with the exception of seniority, span "unit" lines.
Bargaining has been conducted jointly with the
various locals that have been recognized in the
many units. The parties have long bargained in an
overall unit, which is composed of, and has sub-
sumed, the many so-called smaller "units." We
therefore find that-the employees covered by the
contract constitute a single unit.
Since this decision neither party has done anything
which changes the character of the negotiating process.
True, the Employer has proposed to exclude certain
groups of employees previously covered by the agree-
ment in the Operations Department. However, its
planned exclusion is inconsistent with any rational
proposal to create separate collective-bargaining units
for the Distribution and Operations Department since
according to the Employer's plan the steam plants"
would be covered by the same agreement as the Distri-
bution Department. In fact the Employer was unwill-
ing to negotiate a separate contract for the proposed
excluded employees in the Operations Department.
Rather, the Employer offered to follow the terms of the
collective-bargaining agreement negotiated for the dis-
tribution and steam plant employees even though not
specifically included within the coverage of that agree-
ment.
with the Employer that in the circumstances of the present case the filing
date used for determining the applicability of the contract-bar rule should
be the date of the original request. The employees m their original request
for a decertification election effectively expressed their desires within the
permissible period for filing such request The mere fact that the request was
not upon the Board's standard forms should not impinge on the validity of
the request Accordingly , we find the Allen Steam Station petition timely
filed.
" The Employer's proposal to revise the collective-bargaining
agreement's coverage was originated considerably prior to the filing of the
decertification petitions.
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As previously indicated, our prior Duke Power deci-
sion did not consider the status of the Operations De-
partment "fragments" even though it is clearly evident
from the foregoing that these employees were included
in collective-bargaining agreements prior to this deci-
sion. This previous bargaining history, unchanged by
events since our previous decision, shows that the Em-
ployer and the Union engaged in joint bargaining for all
employees represented by the Union. Accordingly, we
grant the Union's unit clarification petition and find,
based on the long established collective-bargaining his-
tory, that the appropriate unit is a systemwide unit
composed of employees both in the Distribution or
Retail Department and the Operations Department
who are represented by the Union.12
Although we have granted the Union's unit classifi-
cation request so as to cover some of the union-repre-
sented employees in the Operations Department as well
as in the Distribution Department, we do not find this
conclusion dispositive of the status of the decertifica-
tion petitions at the three steam plants. The Union
contends that the unit stated in each decertification
petition is inappropriate because these units also have
been incorporated into the larger collective-bargaining
unit. We do not agree with the Union's contention that
the bargaining history has rendered inappropriate, for
purposes of a decertification election, separate steam
plant units. At two of the steam plants the Board has
certified the Union as the bargaining agent in a unit
composed solely of that particular steam plant. The
employees were not given the option to choose at the
time of the Board's election at these two steam plants
whether they wished to be associated with the larger
collective-bargaining unit. Moreover, all of these steam
plants have only recently been included within the cov-
erage of the system wide collective-bargaining agree-
ment-the Allen steam plant being added as late as
1969. In light of the above, we conclude that, although
these three steam plants have been included in the sys-
tem-wide agreement and will continue to be included if
the employees choose by election to be represented by
the Union, an insufficient time has elapsed since certifi-
cation or recognition as separate appropriate units for
the purposes of collective bargaining to warrant the
finding that these steam plants have been irrevocably
amalgamated into the larger collective-bargaining unit.
Accordingly, we find that the decertification petitions
filed for Lee, Dan River, and Allen steam plants state
the appropriate unit and we shall direct that decertifica-
tion elections be held at each of the steam plants.
12 Although several groups of employees have been added to the collec-
tive-bargaining agreement 's coverage since our previous decision, these
groups should also be covered by our present Decision in order to be consist-
ent with the parties own collective-bargaining arrangements
We find that the following described units are appro-
priate units in this "decertification" proceeding for the
purposes of collective bargaining within the meaning of
Section 9(b) of the Act:
All operation and maintenance employees at
Lee Steam Station excluding all office clerical em-
ployees, guards, and supervisors as defined in the
Act.
All operation and maintenance employees em-
ployed at the Employer's Eden, N.C. installation
(Dan River Steam Station) but excluding office
clerical employees, supervisors and guards as
defined in the Act.
All operation and maintenance employees at
Allen Steam Station, Belmont, North Carolina ex-
cluding all office clerical employees, guards, and
supervisors as defined by the Act.
If a majority of the employees in any of the units
described above vote for the Union-Petitioner, then the
employees in that unit will be taken to have indicated
their desire to be included in the existing systemwide
company unit currently represented by Union-Peti-
tioner and the Regional Director will issue a certifica-
tion to that effect.
ORDER
It is hereby ordered that the certification heretofore
issued to System Council U-20, International Brother-
hood of Electrical Workers, AFL-CIO, be, and it
thereby is, clarified by specifically including therein all
employees in the Operations Department described as
hydraulic maintenance employees, Great Falls labor
crew, and other substation operators and, servicemen
represented by the I.B.E.W.
[Direction of Elections" omitted from publication.]
MEMBER BROWN, dissenting in part:
I agree with my colleagues' finding in the UC case
that the presently existing bargaining unit is the sys-
temwide unit for which the Union is recognized com-
prising the Distribution or Retail Department and the
Operations Department. Notwithstanding this finding,
however, and in the face of longstanding Board policy
" In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them. Excelsior Underwear
Inc., 156 NLRB 1236; N.L.R.B. v. Wyman-Gordon Co., 394 U.S. 759.
Accordingly, it is hereby directed that an election eligibility list, containing
the names and addresses of all the eligible voters, must be filed by the
Employer with the Regional Director for Region 20 within 7 days of the
date of this Decision and Direction of Elections. The Regional Director
shall make the list available to all parties to the election. No extension of
time to file this list shall be granted by the Regional Director except in
extraordinary circumstances. Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed
DUKE POWER COMPANY 313
which regards the existing bargaining unit as the appro- Inasmuch as I cannot reconcile this direction of elec-
priate one for decertification purposes," My colleagues tions with the resolution of the UC case or with Board
are directing decertification elections in fragments of law respecting which the majority opinion is silent, I
the existing bargaining unit. must dissent therefrom. And since, as appears from the
unit finding made in the UC case, the decertification
petitions seek elections in inappropriate units, I would
'" See Clohecy Collision, Inc, 176 NLRB No 83, and cases cited therein dismiss them.