Duquesne Light Co.

National Labor Relations Board - Board Decisions

Apr 18, 1980

248 N.L.R.B. 1271 (N.L.R.B. 1980)

DUQUESNE LIGHT COMPANY 1271
Duquesne Light Company and its wholly owned sub-
sidiary, Allegheny County Steam Heating Com-
pany and System Council U-10 of the Local
Unions 140, 142, 144, 147, 148 and 149 of the
International Brotherhood of Electrical Work-
ers, AFL-CIO-CLC, Petitioner. Case 6-AC-44
April 18, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
In 1948, 1949, and 1956, the International Broth-
erhood of Electrical Workers, AFL-CIO (the In-
ternational), was certified as the collective-bargain-
ing representative for nine separate appropriate
units of the Employer's employees. The particulars
of those nine certifications are set out in the appen-
dix to this Decision.'
On February 13, 1979, the Petitioner filed the in-
stant petition to amend each of the nine certifica-
tions referred to in the appendix to substitute "In-
ternational Brotherhood of Electrical Workers
(IBEW) Local Unions 140, 142, 144, 147, 148, and
149 of System Council U-10" for the International
as the sole certified collective-bargaining represen-
tative of all the employees covered in the afore-
mentioned certifications. The Employer opposes
the proposed amendments. 2
A hearing on the petition was held on April 11,
1979, at Pittsburgh, Pennsylvania, before Hearing
Officer Charles H. Saul. All parties appeared at the
hearing and were given full opportunity to partici-
pate therein. Following the hearing and pursuant to
Section 102.67 of the National Labor Relations
Board's Rules and Regulations, Series 8, as amend-
ed, the Regional Director for Region 6 transferred
this case to the National Labor Relations Board for
decision. Thereafter, both the Petitioner and the
Employer filed briefs.
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 au-
thority in this proceeding to a three-member panel.
'Several of the unit descriptions contained in the appendix make refer-
ence to employers other than the Employer named in this proceeding. In
this regard, the parties stipulated that the Philadelphia Company, referred
to in Case 6-RC-64, was originally a holding company for the various
other employers referred to in the certification but that, as a result of
antitrust proceedings in about 1953, the Philadelphia Company was dis-
solved and Duquesne Light Company and its wholly owned subsidiary,
Allegheny County Steam Heating Company, remained, among others, as
two serving companies. The parties further stipulated that all the employ-
ees covered by the certifications specified in the appendix are now em-
ployed by either Duquesne Light Company or its wholly owned subsid-
iary, Allegheny County Steam Heating Company (hereafter collectively
referred to as the Employer).
a The International did not appear as a party in this proceeding. How-
ever, its International representative, Dunleavy, testified as a witness for
the Petitioner and stated that the International supports the petition.
248 NLRB No.168
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
Upon the entire record in this case, the Board
finds as follows:
Following the issuance in 1948 of the first six
certifications involved herein, the International im-
mediately chartered the Locals involved in this
proceeding and assigned the employees covered by
those certifications to those Locals. The employees
covered by the subsequent certifications in 1949
and 1956 were also assigned by the International to
the Locals.
Since 1948, the Locals have bargained jointly
with the Employer through the Council or the
Council's predecessor, the Joint Board. Member-
ship of the Council consists of 12 delegates;
namely, the president and vice president of each of
the 6 Locals. Each of these delegates has one vote.
The Council itself also has a president, vice presi-
dent, secretary-treasurer, and business manager.
While they have a voice in Council affairs, they
have no vote, except for the Council president,
who votes only in the event of a tie vote among
the Locals' delegates. The Council has, among
other committees, a negotiating committee consist-
ing of the Council's business manager, who serves
as chairman of the negotiating committee, the
Council's president, and the presidents and vice
presidents of each Local.
Prior to 1975, separate collective-bargaining
agreements were jointly and simultaneously negoti-
ated between the Employer and the Council for
separate Locals and/or separate certified units.
Thus, while any given collective-bargaining agree-
ment prior to 1975 might pertain to only one or a
few of the six Locals, or to the employees covered
by only one or a few of the nine certifications i-
volved in this proceeding, each such contract was
nevertheless jointly and simultaneously negotiated
by all the Locals through their equal representation
on the Council. However, in 1975, the parties con-
solidated this procedure somewhat by negotiating
only two fundamentally similar collective-bargain-
ing agreements, for the period of October 1, 1975,
through September 30, 1977. One such contract
pertained to Locals 140, 142, 144, 147, and 148 and
covered, in general, all hourly employees encom-
passed within certifications 6-RC-88, 157, 158, 415,
s The jurisdiction of these six Locals does not strictly correspond to
the scope of the nine certifications. Thus, the employee units covered by
six of the nine certifications are composed of members of several Locals.
Inversely, the membership of each of the six Locals is composed of em-
ployees covered by several certifications. Each employee encompassed
within the nine certifications is a member of one of the Locals, but no
such employee is a member of more than one Local.
DUQUESNE LIGHT COMPANY
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 416. The other such contract pertained to
Locals 140, 147, and 149 and covered, in general,
all salaried employees encompassed within certifi-
cations 6-RC-64, 89, 159, 415, 416, and 1815. Sub-
sequently, the parties negotiated and entered into
essentially uniform "Modifications of Agreement"
to each of the two 1975-77 collective-bargaining
agreements, such "Modifications" to be effective
from October 1, 1977, through September 30, 1979;
these "Modifications" effected changes to only a
relatively few provisions in the 1975-77 collective-
bargaining agreements. These contracts stated that
they were between the Locals and the Employer
and that the Employer recognized the Unions "as
the exclusive bargaining representatives" of the em-
ployees here involved. 4
In the negotiations in 1975 and again in 1977, the
Council unsuccessfully attempted to have the Inter-
national removed from the recognition clause of
the parties' bargaining agreement, with the Locals
remaining as the only recognized union. Then, in
1978, it was decided by the Council's business man-
ager and the International to petition the Board for
amendment of the certifications in order to remove
the International as the certified bargaining agent.
Notices were posted on various bulletin boards an-
nouncing that special local meetings would be held
"to seek NLRB approval to amend certification."
The meetings were held, explanations for the pro-
posed change were given to the employees, and the
proposal was voted on. Of approximately 2,700 em-
ployees in the units, 138 attended the special meet-
ings. Of these, 123 voted, by ballot, to petition the
Board to amend the certifications to designate the
Locals as the certified representative. The conse-
quent petition-that now before us-was filed on
February 13, 1979.
' The preamble and the representation and recognition clauses in these
contracts state in pertinent part, as follows:
PREAMBLE: This agreement is made by and between the [Employ-
er], and [applicable locals] of the International Brotherhood of Elec-
trical Workers, hereinafter called the Union... [Emphasis supplied.]
Article , Representation and Recognition
Section A.l. The Unions having been certified. . by the National
Labor Relations Board, as the bargaining agencies for certain employ-
ees [i.e., those in the nine certifications involved] are hereby recog-
nized as the exclusive bargaining representatives for said employees.
. . . [Emphasis supplied.]
Section C. For the purposes of this Agreement, the [Employer]
recognizes representatives of the International Brotherhood of Elec-
trical Workers and the System Council U-10 of the Union as the rep-
resentatives of the Union. ... [Emphasis supplied.]
To the extent that the phraseology in art. I indicates, in conjunction with
the wording of the preamble, that the Locals have been certified, it is, of
course, factually incorrect; as seen above, the International, and not the
Locals, was certified as the collective-bargaining representative for the
employees encompassed in each of the nine certifications involved in this
proceeding. Indeed, the purpose of the petition in this proceeding is to
subsritute the Locals of the Council in place of the International as the
certified bargaining representative.
The Council, as indicated above, seeks in its peti-
tion to amend the certifications to reflect what it
claims is the actual status of the Locals, that is, the
de facto exclusive bargaining representatives of the
employees covered by the certifications, and to re-
flect accurately the manner in which collective
bargaining is actually conducted by the Employer,
the Locals, and the Council. As noted, the Interna-
tional, according to International Representative
Dunleavy, supports the petition. The Employer,
however, opposes the petition on essentially two
grounds: First, that eliminating the International
will have a deleterious effect on the stable bargain-
ing relationship that has developed over the years,
and, second, that the proposed amendment was not
properly approved by the employees affected. 5
The record establishes that, from the time of the
initial certification over 30 years ago, the Locals
through the Council (or its predecessor, the Joint
Board) have been effectively delegated the author-
ity by the International to act as the actual bargain-
ing representative of the employees in question in
the important areas of contract formulation, negoti-
ation, and administration. The International has
during this period provided advice and counsel to
the Locals and Council in the formulation of con-
tract proposals, retained the authority to give nec-
essary final approval to employee-ratified agree-
ments, and has participated at its discretion in step
4 of the contractual grievance procedure. Also, the
International's approval must be secured in ad-
vance for any strike or other work stoppage on the
local level. The record also shows that such local
participation by the International will remain un-
changed and undiminished in the event the certifi-
cation is awarded as requested.
The International's representative, Dunleavy, tes-
tified that the role or function of the International
or its representative in the area of collective-bar-
gaining agreement formulation, negotiation, ratifi-
cation, and approval is the same with respect to all
its locals (not just those involved herein). Thus,
this role or function is not affected by whether the
International itself or one of its locals is actually
certified as the bargaining representative; the re-
quirement in the International's constitution that all
ratified collective-bargaining agreements between
employers and all its locals must be submitted to
the International president for final approval is ap-
I The Employer also opposes the amendment of the certification on
the grounds that "the real basis for the Petitioner's desire for amendment
of the certification is an effort to attempt to shift the burden of potential
liability in various matters of litigation, particularly those arising under
various civil rights statutes." However, there is no substantial evidence
that the Petitioner's purpose in seeking amendment is to shift potential
liability or that the proposed amendment would have such effect. Conse-
quently, for those reasons alone, we find the Employer's contention in
this regard to be without merit.
DUQUESNE LIGHT COMPANY 1273
plicable regardless of which entity-the Interna-
tional or the local-is actually certified as the bar-
gaining representative. Nor do the services which
the International provides to its locals in the area
of grievance processing depend on which entity is
actually certified as the bargaining representative.
Finally, Dunleavy testified that the Internation-
al's constitutional requirement that any local strike
or work stoppage be approved in advance by the
International itself is binding on all locals regard-
less of whether the International or the local is cer-
tified as the bargaining representative. Consequent-
ly, we find little substance in the Employer's con-
tention that the requested amendment will result in
a lessening of the International's influence on, and
control of, bargaining and other representational
matters. In that regard there will be no change,
and the amendment's effect will be no more than
recognizing the Locals' de facto status as the exclu-
sive bargaining representative, a status resulting
from the parties' own past practice, contractually
sanctioned by the Employer. Furthermore, the unit
employees also have sanctioned the established
status of the Locals as their bargaining representa-
tive not only by acquiecsing in the Locals' princi-
pal role in negotiations and administration of bar-
gaining agreements, but also by ratifying contracts
recognizing the Locals as their bargaining repre-
sentative.
Accordingly, we conclude that a substitution of
the Locals for the International as the certified bar-
gaining representative is proper as it will not con-
stitute a change in the actual bargaining representa-
tive6 nor in any manner break the continuity of the
bargaining relationship between the Employer and
unions created over the past 30 years.7
In reaching this conclusion, we have considered
the Employer's contention that the union meetings
held on the proposed amendment were procedural-
6 See Newark Stove Company, 143 NLRB 583 (1962). In Newark Stove,
the employer had entered into successive contracts with a local union af-
filiated with the international which was certified as the exclusive repre-
sentative of the unit employees. Because of this history of employer bar-
gaining with the local as the employees' bargaining representative, and
since neither the employees nor the employer had objected to the local's
representative role during this period of bargaining, the Board approved
the substitution of the local for the international on the certification.
Similarly, in the instant case the parties, including the employees, have-
through an extensive course of conduct-accorded de facto representative
status to the Locals. Therefore, under Newark Stove, the instant amend-
ment should be granted.
In so concluding, we distinguish M. A. Norden Company, Inc., 159
NLRB 1730 (1966), cited by the Employer. In Norden, the attempted
substitution of the local for the certified international occurred less than 4
months after the issuance of the original certification. Accordingly, there
was no extensive course of conduct indicating employee sentiments con-
cerning the substitution of the local for the international as the certified
bargaining representative. Because there was no other evidence reflecting
employee opinion on this matter, the Board denied the motion to amend
the certification.
7 Quemetrco, Inc., a Subsidiary of RSR Corporation, 226 NLRB 1398
(1976).
ly flawed. We need not resolve this issue, however,
since the instant case concerns the substitution of
local unions for an international with which they
are affiliated, rather than a merger or affiliation.
Accordingly, the cases cited by the Employer,
which concern those latter situations, are inappo-
site. Further, the employees here by their past con-
duct have passed on the substance of the substitu-
tion question in a way which we believe accurately
reflects their sentiments. Our belief in this respect
is reinforced by the overwhelming vote recorded
at the meetings in favor of the substitution.
In view of all the foregoing, we shall grant the
petition to amend certification. This amendment is
not, however, to be considered a new certification
or a recertification.
ORDER
It is hereby ordered that the petition to amend
the certifications filed by System Council U-10 of
the Local Unions 140, 142, 144, 147, 148, and 149
of the International Brotherhood of Electrical
Workers, AFL-CIO-CLC, be, and it hereby is,
granted, and that the Certifications of Representa-
tive in Cases 6-RC-64, 88, 89, 157, 158, 159, 415,
416, and 1815 be amended by substituting "Interna-
tional Brotherhood of Electrical Workers, Local
Unions 140, 142, 144, 147, 148, and 149 of System
Council U-10" for "International Brotherhood of
Electrical Workers, AFL-CIO."
APPENDIX
Case: 6-RC-64
Date: July 13, 1948
Unit: All employees of the General Departments of the
following Employers: Philadelphia Company, Equitable
Real Estate Company, Equitable Sales Company, Du-
quesne Light Company, Allegheny County Steam Heat-
ing Co., Cheswick Harmar Railroad Co., Equitable Auto
Company, Equitable Gas Company, Finleyville Oil and
Gas Company, Philadelphia Oil Company, Pittsburgh
and West Virginia Gas Co., W.D. George and Thomas
Fitzgerald, Trustees for Pittsburgh Railways Company,
W.D. George and Thomas Fitzgerald, Trustees for Pitts-
burgh Motor Coach Company, Kentucky West Virginia
Gas Company, all of Pittsburgh, Pennsylvania, excluding
executives; the following classifications in the Account-
ing Department-Chief Inventory Inspector, Chief In-
voice Clerk, Stenographer to the Head of the Payroll
Division, Head Cash Receipts Clerk, Head Payroll
Clerk, Tax Accountants, Billing Group Instructor, Head
of Stenographic Section, Elimination Accountant, Finan-
cial Forecast Accountant, Consolidating Accountants,
Statistical Record Accountant, Stenographer to the Gen-
eral Auditor, General Accountant (Statistical Division),
S.K.C. Reports Accountant, General Clerk (Controler's
Office), Head Distribution Clerk, Chiefs of Property Re-
cords, Special Report Analysts, Stenographer to Man-
ager (Valuation and Property Records), Property Cost
DUQUESNE LIGHT COMPANY 273
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Engineer, Chiefs of Construction Costs; also excluding
the following classification in the Advertising Depart-
ment-Copywriters; also excluding the following classifi-
cations in the Law Department-Surveyors, Legal Ste-
nographers, Legal Records Clerk; also excluding the fol-
lowing classifications in the Personnel Department-
Nurses, Dental Hygienist, Librarian, Personnel Report
Clerk, Personnel Record Clerk, Group Insurance Clerk,
Statistical Clerk Personnel, Safety Inspector, APR Clerk;
also excluding the following classifications in the Sales
and Service Department-District Service Representa-
tives, Lead Stenographer to Manager of Rate Depart-
ment, Stenographer to Manager of General Service De-
partment; also excluding the following classifications in
the Treasury Department-Chauffeur Guard and Relief
Men, Head Teller, Collectors Traffic Receipts, Stenogra-
pher to Assistant Treasurers; also excluding all guards,
professional employees and supervisors as defined in Sec-
tion 2(11) of the Act, as amended.
Case: 6-RC-88
Date: June 4, 1948
Unit: All production, maintenance, transmission and dis-
tribution employees of the Duquesne Light Company,
Pittsburgh, Pennsylvania, excluding executives, mines
employees, construction employees, clerical and techni-
cal employees, and guards, professional employees and
supervisors as defined in Section 2(11) of the Act, as
amended.
Case: 6-RC-89
Date: July 14, 1948
Unit: All office, clerical and technical employees of the
Duquesne Light Company, Pittsburgh, Pennsylvania, ex-
cluding executives, mine employees, student engineers,
sales and service employees, wiring inspection represen-
tative, construction work dispatcher, general clerk of
General Stores Department, senior general clerk of Sub-
station and Shops Department, secretary and/or stenog-
rapher to general superintendent of power stations, gen-
eral superintendent of distribution, chief engineer, struc-
tural engineer, general superintendent of system oper-
ations, special representative, technical assistant to vice-
president in charge of operations; storekeepers, ware-
house foremen, chief load dispatchers; senior engineers
(Distribution Department); division line engineers, cable
plant engineers, material engineers (Distribution Depart-
ment); radio interference engineer, street lighting engi-
neer, senior design engineer, junior design engineer
(except substations and shops); project engineers, design
engineers, development engineers, senior development
engineers, junior development engineers, operating
schedule engineer, efficiency engineers, technical analysis
engineer, junior test engineers, senior test engineers, test
engineers, metallurgist, chemists, chemical engineers,
field laboratory supervisor, metallurgical engineer, equip-
ment engineer, senior design engineer, junior T.R. test
engineer, senior T.R. test engineer, junior engineers,
technical assistant (system operations), head janitor-
watchman, watchmen, guards, professional employees
and supervisors as defined in Section 2(11) of the Act, as
amended.
Case: 6-RC-157
Date: July 13, 1948
Unit: All production, maintenance and distribution em-
ployees of Allegheny County Steam Heating Company,
Pittsburgh, Pennsylvania, but excluding executive cleri-
cal, technical employees, guards, professional employees
and supervisors as defined in Section 2(11) of the Act, as
amended.
Case: 6-RC-158
Date: July 1', 1948
Unit: All employees of Equitable Auto Company, Pitts-
burgh, Pennsylvania, excluding executives, clerical em-
ployees, guards, professional employees and supervisors
as defined in Section 2(11) of the Act, as amended.
Case: 6-RC-159
Date: July 13, 1948
Unit: All clerical employees of Equitable Auto Compa-
ny, Pittsburgh, Pennsylvania, excluding executives, engi-
neers, guards, professional employees and supervisors as
defined in Section 2(11) of the Act, as amended.
Case: 6-RC-415
Date: September 29, 1949
Unit: All employees of the Equitable Real Estate Com-
pany, Pittsburgh, Pennsylvania, excluding executives,
watchmen and guards, professional employees and super-
visors as defined in Section 2(11) of the Act, as amended.
Case: 6-RC-416
Date: September 29, 1949
Unit: All construction, maintenance, operating and cleri-
cal employees of the Telephone Department of Equitable
Gas Company, Pittsburgh, Pennsylvania, excluding ex-
ecutives, crew foremen and guards, professional employ-
ees and supervisors as defined in Section 2(11) of the
Act, as amended.
Case: 6-RC-1815
Date: August 20, 1956
Unit: All stenographers and clerks in the Residential
Sales Department, Commercial Sales Department, Indus-
trial Sales Department and Municipal Sales Department,
and in the Vice President's office, of the Sales Division
[of the Duquesne Light Company, Pittsburgh, Pennsyl-
vania].