Florida Power and Light Co.

National Labor Relations Board - Board Decisions

Mar 7, 1960

126 N.L.R.B. 967 (N.L.R.B. 1960)

FLORIDA POWER AND LIGHT COMPANY 96T
for the employees sought by the Petitioner. However, 24 members of
the Employer appeared at the hearing in the role of "interested par-
ties" to protect their rights and to litigate such questions as the al-
leged craft and supervisory status of the patternmakers.
The Petitioner contends that the only appropriate unit consists of
all patternmakers employed by all member firms of the Employer. In
support of its contention, the Petitioner points to the authority con-
tained in the Employer's constitution and bylaws, and the Employer's-
past practice of bargaining for all other employees on a multiemployer
basis. However, any authority the Employer might have possessed
to negotiate and execute collective-bargaining agreements was clearly
nullified insofar as patternmakers are concerned by the members' re-
plies to the Employer's letter of June 10, 1959. It is well settled that
a history of multiemployer bargaining for other employees does not
establish a multiemployer unit as the only appropriate unit for previ-
ously unrepresented employees in a different category.' As it is clear
in this case that the members of the association have not authorized
the Employer to bargain on their behalf as far as patternmakers are
concerned, and, indeed, are opposed to such bargaining for their
employees, we find that the multiemployer unit sought by the Peti-
tioner is inappropriate .2 Accordingly, we shall dismiss the petition.
[The Board dismissed the petition.]
MEMBERS RODGERS and JENKINS took no part in the consideration of
the above Decision and Order.
1 See Macy's San Fiancxsco, and Seligman & Letz, Inc., jointly, 120 NLRB 69, 72.
2 Cf. Independent Motion Picture Producers Association , Inc, 123 NLRB 1942
Florida Power and Light Company and Robert J. Pickens
International Brotherhood of Electrical Workers, AFL-CIO
and Robert J. Pickens
Local 759, International Brotherhood of Electrical Workers,
AFL-CIO and Robert J. Pickens. Cases Nos. 12-CA-709, 12-
CB-223, and 12-CB-224. March 7, 1960
DECISION AND ORDER
Upon charges filed on January 8, 1959, and April 7, 1959, by
Robert Jones Pickens, an individual, the General Counsel for the
National Labor Relations Board, herein called the General Counsel,
by the Regional Director for the Twelfth Region, issued a complaint
dated April 28, 1959, against Florida Power and Light Company,
herein called the Respondent Company, and the International
Brotherhood of Electrical Workers, AFL-CIO, and its Local No.
126 NLRB No. 122.
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
759, herein called the Respondent Unions, alleging that the Respond-
ent Company had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the meaning of Section 8(a) (1), (2),
and (3) and Section 2(6) and' (7) of the National Labor Relations
Act and that the Respondent Unions had engaged in and were engag-
ing in unfair labor practices affecting commerce within the meaning
of Section 8(b) (1) (A) and (2) and Section 2(6) and (7) of the Act.
On the same day, the Regional Director issued an order consolidating
the cases and noticing them for hearing. Copies of the complaint,
charges, and notice of hearing were duly served upon Respondents
and the charging individual.
With respect to the unfair labor practices, the complaint alleges,
in substance, that the Respondent Company and Respondent Unions
are parties to a collective-bargaining agreement containing a pro-
vision which delegates to the Respondent Unions ultimate control
over the seniority standing of Respondent Company's employees, who
transfer from one department to another. On or about May 8, 1959,
the Respondents filed answers denying that the facts alleged in the
complaint constitute violations of the Act.
Thereafter, on June 10, 19595 the parties signed stipulations whereby
they agreed that the Board may find as true and correct the facts
contained in a "Stipulation of Facts," that the parties waived a
hearing, the issuance of an Intermediate Report, and a proposed
Decision and Order of the Board; and that the Board may make
findings of fact and conclusions of law, and may issue its Decision
and Order based thereon, as if the same facts had been adduced in
open hearing before a duly authorized Trial Examiner of the Board.
The parties to the stipulations further requested permission to file
briefs with the Board on or before July 1, 1959, and agreed that the
entire record of the proceedings shall consist of the stipulations, the
order consolidating cases and notice of hearing, copies of the com-
plaint, charges, answers, and the "Stipulation of Facts."
By an order issued June 30, 1959, the Board approved the afore-
said stipulations and made them part of the record herein and trans-
ferred the proceedings to, and continued them before, the Board.
Subsequently, the General Counsel, the Respondent Company, and
the Respondent Union filed briefs.
Upon the basis of the aforesaid stipulations and the entire record
in the case, including the briefs filed by the parties, the Board makes
the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT COMPANY
The Respondent Company, a Florida corporation, is engaged in the
business of generation, distribution, and sale of electric power in the
FLORIDA POWER AND LIGHT COMPANY 969
State of Florida. In the 12-month period ending June 1959, the Re-
spondent Company did a gross volume of business in excess of $250,-
000 and during the same period purchased goods and materials origi-
nating outside the State of Florida valued in excess of $50,000.
The Respondent Company concedes , and we find , that it is engaged
in commerce within the meaning of the Act.
H. LABOR ORGANIZATIONS INVOLVED
The Respondent Unions are labor organizations within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
From August 28, 1953, to February 11, 1959, the Respondent Com-
pany and the Respondent International, on behalf of its 11 local
unions, were parties to a collective-bargaining contract. On Febru-
ary 11, 1959, the parties executed a new contract effective to September
30, 1960. Both contracts contained the following provision which
reads , in pertinent part :
Article II, Seniority-Promotion-Lay-Off-Discharge
Paragraph 19 (a)
Transfers may be made without loss of seniority between
departments (as defined in Paragraph 15) by mutual consent
between the Company and the particular Local Unions in-
volved ... In event a Local Union does not reply on request
for approval of transfer within thirty (30) days after receipt
of such request, it will be construed as having been approved,
however, if no application is received from a qualified em-
ployee within a particular department (as defined in Para-
graph 15) then applications shall be considered in accord-
ance with the established job posting procedure from other
departments covered by this Agreement, and if a job is filled
in this manner, the employee transferring shall transfer his
full seniority rights to the department to which he transfers.
On December 11, 1958, the parties executed an interpretation of
paragraph 19 (a) as follows:
In case of any employee transferring from one Department to
another, the language
by mutual consent between the Company and the particular
Local Unions involved
means his seniority would not be transferred if any one Local
Union voted to disapprove such transfer of seniority. This
language also gives the Company the right to disapprove any
such transfer of seniority.
970 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert J. Pickens the Charging Party, had been employed in the
gas department of Respondent Company since 1947. Following nego-
tiations for the sale of its gas properties to the Houston Gas Corpora-
tion which began in 1956,1 Pickens transferred to the Company's pro-
duction department on April 5, 1958. On April 18, 1958, Pickens
requested that his seniority of 11 years accumulated in the gas depart-
ment be transferred to the production department, in accordance with
the above cited paragraphs. The Company agreed to Pickens' trans-
fer of seniority, but upon referral to the 11 Local Unions involved, 5
of them declined to permit such transfer. On August 22, Pickens
requested reconsideration, the Company again agreed, and this time
four of the five Locals which had hitherto declined to give their con-
sent also approved the seniority transfer. Respondent Local 759,
alone, refusal to give its consent. Pickens thereafter filed a written
appeal with the Respondent International Brotherhood of Electrical
Workers, which appeal was denied. As a result of this action, Pickens'
seniority standing in the production department does not reflect 'his
overall company service in the gas department.
The General Counsel contends that based upon the Board's Pacific
Intermountain Express Company doctrine2 paragraph 19(a) con-
stitutes an unlawful delegation of control to the Unions over seniority
in violation of the Act because the requirement of union consent before
seniority can be transferred creates a situation where one or more
Unions by the use of their veto power can ultimately determine
whether such transfer can be made. The Respondent Company and
Respondent Unions argue that the Board's decision in the North East
Texas case 3 is squarely in point and is dispositive of the issue raised
herein. In that case, the contract contained, inter alia, the following
clause :
Section 4: Terminal seniority shall prevail except where all Local
Unions and a Company involved mutually agree otherwise.
The Board found that the above section 4 was not unlawful because
"it does not delegate to the union the authority to control employee
seniority."
The General Counsel would distinguish the North East Texas case
from the instant one on two grounds. First, he asserts that although
the disputed paragraph 19 (a) gives the Company the power to veto
a seniority transfer request, the decision of the Company is not, or at
least does not have to be, a final one and therefore mutual consent is
not really required. In this regard, he points to the grievance and
arbitration clause of the contract (article IV, clause 26) which pro-
vides that any employee may file a grievance in connection with- "any
On August 28, 1958, the sale of the gas properties was consummated.
0107 NLRB 837, enfd. as modified 225 F. 2d 343 (C.A. 8).
North East Teas Motor Linea , Inc., 109 NLRB 1147.
FLORIDA POWER AND LIGHT COMPANY 971
type of supervisory conduct which unjustly denies [him] his job or
any benefit arising out of his job . . . ." On the other hand, the
General Counsel notes that all parties agree that there is no appeal of
any kind provided for in the contract from a union decision regarding
seniority transfer.
We find this contention of the General Counsel lacking in merit.
In our opinion, the Unions' control over the Company's vote is, at
most, a very remote and tenuous one. Thus, if the Company declines
to apprcve, but the Unions agree to a seniority transfer, and the
grievance procedure is thereafter invoked, the following occurs : the
parties must go through three steps in which only their representatives
are involved before they reach the arbitration stage; then in order
for the Unions' desire to prevail, they must obtain the vote of the third
member whose selection has either been agreed upon by the Company
or has been made by the impartial American Arbitration Association.
In these circumstances, we believe contrary to the General Counsel
that the practicalities of the situation are such as that the Company's
veto power is, in substance, preserved.
The General Counsel's second basis for distinguishing the North
East Texas case is that there the parties had agreed on terminal seni-
ority as a standard for disposing of all termnial seniority issues, and
any deviation from such standard required the assent of the union and
the company. He asserts that the union, itself, was wholly without
power to deviate from the standard set forth in the contract. In other
words, the rights of the employee obtained under the standard could
not be adversely affected except by mutual or joint action of the con-
tracting parties. However, according to the General Counsel in this
case, "the disposition of the employee's request to transfer his seniority
is not by mutual or joint consent of the parties embodied in a uniform
standard or policy embodied in the contract." For, the contract
presents only one uniform policy, i.e., giving to the Unions "the
absolute, final power to determine seniority standing after an inter-
departmental transfer." Accordingly, in his view, the contract creates
no right in the employee and necessarily encourages membership in the
Unions, which have the power to adversely affect the seniority stand-
ing of the employee.
We find the General Counsel's second ground likewise without
merit. Thus, paragraph 15(b) states, in pertinent part, that "[f]or
the purpose of determining seniority, departmental seniority shall
control in the three departments : namely, Transmission-Distribution,
Production and Gas. . . ." And, as heretofore indicated, paragraph
19 (a) provides for interdepartmental seniority when and if the Com-
pany and all the Local Unions involved mutually agree. Therefore-
in almost the very words used by the General Counsel to distinguish
the North East Texas case-the parties have agreed on departmental
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
seniority as a standard for disposing of all departmental seniority
issues, and any deviation from such standard requires the assent of the
Unions and the Company; the Unions themselves are wholly without
power to deviate from the standard set forth in the contract; the
rights of the employee obtained under the contract cannot be adversely
affected except by mutual or joint action of the contracting parties.'
In this regard, we consider very persuasive the reasons advanced by
the Respondent Company and Respondent Unions for requiring mu-
tual consent before interdepartmental transfers are permitted. Thus,
they observe that in the utility business, departmental seniority, as
provided in the contract, is the fairest method, because entirely dif-
ferent qualifications are required in different departments. Therefore,
if an employee leaves his job in one department for another, he be-
comes, in effect, a new employee for seniority purposes. Consequently,
they argue that when an employee assumes new duties in an entirely
separate department, it is only fair that the employees of that depart-
ment be permitted, through their authorized representative, limited
authority to approve the individual's transfer of enhanced status. In
their view, the very nature of the subject matter makes it particularly
appropriate to provide that only by mutual consent can seniority be
transferred. They note that the sphere within which the Unions may
use their power is a narrow one; their power is not to compel but only
to forbid and then only to forbid a deviation from the normal which
is departmental seniority. We cannot say, as the General Counsel
would have us do, that under these circumstances the Unions do not
have a substantial and valid interest in the subject of interdepart-
mental seniority or that the extent to which they were permitted to
participate under this contract was unlawful.5
CONCLUSIONS OF LAW
By entering into and maintaining an agreement containing a pro-
vision whereby transfers of departmental seniority may be made by
mutual consent of the parties, the Respondent Company has not en-
gaged in and is not engaging in unfair labor practices within the
4 The General Counsel also relies upon the Board decisions in Theo Hamm Brewing Co.
and Pfeiffer Brewing Co , 115 NLRB 1157, and Gibbs Corporation, 120 NLRB 1079, as
support for his position that there has been an unlawful delegation here of control to the
Unions over seniority . We find these cases to be distinguishable from the instant one.
Here, as we have found above, under the terms of paragraph 19(a) the Company also has
control. Indeed, the paragraph provides for the Company's right to deny a request for
seniority transfer , in which event , the fact that all or any of the Unions might consent,
would not avail
Member Bean agrees that the collective -bargaining representative of a unit into which
an employee is to be transferred with seniority acquired in another bargaining unit is
properly concerned with such transfer as being within the scope of its duty to protect
the interests of the employees it represents. As this was the case herein , Member Bean
concurs in the dismissal of the complaint without reaching the question whether other
labor organizations which are joint parties to a collective -bargaining agreement may,
under its terms, be granted veto powers over transfers of seniority not directly concerning
the employees in the units represented by them.
UTAH PLUMBING & HEATING CONTRACTORS ASSN ., ETC. 973:
meaning of Section 8(a) (1), (2), and (3) of the Act, and the Re=
spondent Unions have not engaged in and are not engaging in unfair
labor practices within the meaning of Section 8(b) (1) (A) and (2)
of the Act. Accordingly, we shall dismiss the complaint.
[The Board dismissed the complaint.]
MEMBER Rona=ss took no part in the consideration of the above
Decision and Order.
Utah Plumbing and Heating Contractors Association and its
Members and Local Unions 19, 57, 348 and 466 of the United
Association of Journeymen and Apprentices of the Plumbing
and Pipe Fitting Industry of the United States and Canada,
AFL-CIO. Case No. 20-CA-1670. March 7, 1960
DECISION AND ORDER
On October 6, 1959, Trial Examiner William E . Spencer issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged in certain unfair labor practices, and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report.
Pursuant to the provisions of Section 8(b) of the National Labor
Relations Act the Board has delegated its powers in connection with
this case to a three-member panel [Chairman Leedom and Members
Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this.case, including the Intermediate Report and the excep-
tions thereto, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
ORDER
Upon the entire record in this case, and pursuant to Section 10(c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Utah Plumbing
and Heating' Contractors Association and its Members, their officers,
agents, successors, and assigns, shall:
1:: Cease and desist from:
(a) Discouraging membership in Local Unions, 19, 58, 348 and 466
of the United Association of Journeymen and Apprentices of the
126 NLRB No. 124.