Indianapolis Power & Light Co.

National Labor Relations Board - Board Decisions

Feb 11, 1948

76 N.L.R.B. 136 (N.L.R.B. 1948)

In the Matter Of INDIANAPOLIS POWER & LIGHT COMPANY, EMPLOYER
and UTILITY WORKERS UNION OF AMERICA, LOCAL 343, CIO,
PETITIONER
Case No. 91-R-1346.-Decided February 11, 1948
Gilliom, Armstrong and Gilliom, by Messrs. Arthur L. Gilliom and
Elbert R. Gilliom, of Indianapolis, Ind., for the Employer.
Mr. Harold J. Straub, of Washington, D. C., and Messrs. Garland
Sanders and Arthur Mostell, of Indianapolis, Ind., for the Petitioner.
Lewis, Goett and Elliot, by Mr. Henry 0. Goett, of Indianapolis,
Ind., for the Intervenor.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Indianap-
olis, Indiana, on July 30, 31, August 1, and 5, 1947, before Clifford L.
Hardy, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-man
panel consisting of the undersigned Board Members.*
Upon the entire record in this case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE EMPLOYER
Indianapolis Power and Light Company, a public utility incor-
porated in Indiana with plants and offices in Indianapolis, Indiana, is
engaged in the production and distribution of electrical energy and
steam. The operations of the Employer are conducted in several build-
ings, chief among them being the main administrative building and the
four power plants known as Harding Street, Mill,Street, Perry K, and
Perry W. Among the Employer's customers are many interstate
carriers , telegraph, telephone , and radio systems.
* Chairman Herzog and Members Reynolds and Murdock.
76 N. L. R. B., No. 19.
136
INDIANAPOLIS POWER & LIGHT COMPANY 137
The Employer admits and we find that it 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 Congress
of Industrial Organizations, claiming to represent employees of the
Employer.
Electric Utility Workers Union, herein called the Intervenor, is an
unaffiliated labor organization, claiming to represent employees of the
Employer.
M. THE QUESTION CONCERNING REPRESENTATION
Since September 1, 1937, the Intervenor 1 and the Employer have
been parties to an automatically renewable contract, covering among
others, the employees whom the Petitioner seeks to represent. During
this period, the contract was amended and modified in many respects.
On June 16, 1946, the parties executed an agreement which contained
the following preamble :
... it is agreed by and between the Employer and the Union that
[the 1937] agreement as heretofore amended and modified is
hereby further changed, amended, and modified, and that as
further changed and modified, this agreement shall constitute the
entire agreement between the parties.
The termination clause thereof provided that the agreement was to
remain in effect until June 16, 1947, and thereafter be automatically
renewed from year to year, unless either party notified the other, on or
before April 15, 1947, or April 15 of any subsequent year, of its desire
to "change or terminate" the agreement.
On April 1, 1947, the Intervenor advised the Employer by letter that
it desired that their current contract "be automatically renewed at
12: 00 o'clock, midnight, June 15, 1947," but that certain changes and
amendments be made therein to be effective on the renewal date. The
Intervenor then listed its proposals for modifying the agreement
which covered 25 different subjects 2 and requested the Employer to
negotiate with it respecting these modifications. In a letter dated
April 12 acknowledging this request and naming a date for their meet-
ing, the Employer enclosed a notice of its desire to modify their agree-
1 The Intervenor bad formerly been known as the I. P. and L Employees Protective
Association
2 The subjects covered in the proposals included , inter alia, time and a half for Saturday,
double time for Sunday , a 5-day work week for office employees , rules governing leave of
absence , pensions , the length of probationary periods , maintenance of membership, vaca-
tions, bonuses , a review of job classifications and wage rates, and a general wage increase.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment. This notice contained a list of proposed changes 3 and, like the
Intervenor's notice, expressed the desire that the agreement "be
changed as of June 16, 1947, . . . and as so changed shall continue in
effect for the period and periods therein specified." On May 2, while
the negotiations for a modified agreement were in progress, the Peti-
tioner requested the Employer to recognize it as the exclusive bargain-
ing representative of its employees. The Employer refused and on
May 6, the Petitioner filed the petition herein. On July 12, 1947, the
Employer and the Intervenor entered into a written agreement which
embraced the same range of subjects appearing in the 1946 agreement
but revamped several of its provisions, including those relating to
coverage, the terminal date, seniority, wages, and vacations.
The Intervenor and the Employer contend.that no question of rep-
resentation exists because as the Petitioner's claim was made after
April 15, 1947, the date their agreement as amended in June 1946, had
automatically renewed itself for another year. They further contend
that the automatic renewal of the agreement was not forestalled by
their mutual notices to each other because both notices recited that
the parties desired the agreement to renew itself. Those contentions
are lacking in merit. The 1946 agreement provides for its termination
on notice of a hesire to change its terms as well as a notice of termina-
tion. It contains no provision permitting modifications in any respect
during its established term. The Intervenor and the Employer, there-
fore, could not under the terms of the agreement request its revision
and at the same time continue it in effect. In any event, we are per-
suaded that the real purpose for the exchange of notices between the
Intervenor and the Employer, notwithstanding the declarations in the
notices to the contrary, was to negotiate a new agreement to supersede
the 1946 agreement. That this was the intent of the parties seems clear
from the breadth and scope of the changes which were proposed and
which were subsequently incorporated in the 1947 agreement, as well
as from the fact that the notices were given within the time limit pre-
scribed in the 1946 agreement for preventing its automatic renewal for
another year.
In view of the foregoing, we are of the opinion that the April notices
of the Intervenor and the Employer stayed the operation of the auto-
matic renewal clause and effected.a termination of the f946 agreement
as of June 16, 1947. We find, theref ore, that this agreement is not a
bar to a present determination of representatives.4 Nor can it be
3 Among the provisions in the agreement which the Employer proposed to change were
those relating to its coverage , its termination date, rates of pay for certain groups , holiday
pay, and overtime. 1
4 Matter of E. I. Du Pont de Nemours and Company , Inc., 73 N. L. R. B. 439 ; Matter
of Duquesne Light Company , 71 N. L R. B . 336. Furthermore , our conclusion in Section
V, infra, as to the inappropriateness of the contract unit, constitutes an additional basis
INDIANAPOLIS POWER & LIGHT COMPANY 139
claimed that the 1947 agreement bars the present proceeding inasmuch
as the petition was filed prior to its execution.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer, within the meaning of
Section 9 (c) (1) and Section 2• (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Petitioner seeks a unit of all the Employer's production, mainte-
nance, construction, and distribution employees, sometimes termed
"physical" employees, excluding office and clerical employees, profes-
sional and technical employees, guards, supervisors, and certain fringe
groups. The Employer and the Intervenor urge the appropriateness
of a company-wide unit embracing essentially all the non-supervisory
employees, the unit for which the Intervenor has acted as bargaining
agent since 1937 in its contractual relations with the Employer.
The unit proposed by the Petitioner is substantially identical with
the unit previously found appropriate by the Board in two earlier
proceedings involving the Employer herein.-' The Employer and In-
tervenor contend, however, that the history of collective bargaining on
a company-wide basis and the close integration of the Employer's op-
erations, warrants the establishment of a unit comprising all classi-
fications of the Employer's employees.6 These contentions were con-
sidered by the Board in its two earlier decisions and rejected.7 The
record shows that since the date of these decisions there has been no
material change either in the operations of the Employer, the duties of
the employees, or the relationship of the various departments to one
another. Under the circumstances, for reasons stated in our previous
decisions involving the Employer, we are not persuaded to depart from
our earlier determination as to the appropriate unit.8
for holding the contract not to be a bar. See Matter of The Mathieson Alkali, Works,
51 N L. R. B 113, Matter of Savannah Electric and Power Company, 48 N L R B. 33
5 See Matter of Indianapolis Power & Light Co., 51 N L . R B. 670, 62 N . L. R B. 1279.
6 The Intervenor won the elections which were directed in the two prior proceedings,
and, notwithstanding the Board ' s unit findings in these cases, continued to bargain on a
company-wide basis, including the employees whom the Board expressly excluded from
the unit found appropriate
7 The Employer also contends that the employees in the unit found appropriate in
the prior proceedings have manifested their desire to continue as part of all-inclusive
unit not only by their selection of the Intervenor in the previously held elections but
by their unanimous approval of the contract executed on June 6, 1947, between the
Employer and the Intervenor . A similar contention was raised in the earlier proceedings
and rejected as not determinative of the issue herein
8 Matter of The Mathtieson Alkali. Works, 55 N. L. it. B. 1100 , Matter of Consolidated
Vultee Aircraft Corporation, 70 N L it. B 1357. The Employer urges that our decision
in the Matter of Pennsylvania Power and Light Company (64 N. L. it. B. 874) is determina-
tive of the issue herein. We do not agree That decision rests upon the particular factors
present in that case A different situation exists in the instant case We have in two
earlier cases considered the specific factors herein urged by the Employer relative to the
unit appropriate for its employees . In the first case we decided , and in the second case we
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
There remains for consideration the question of including or exclud-
ing the employees in classifications which the Petitioner would exclude
from the appropriate unit and which were not specifically passed upon
by the Board in former proceedings.s
The tree trimming inspector in the Transmission and Distribution
Department. The Petitioner contends that this employee is a super-
visor. The record, however, shows that he has no employees under
his supervision. His authority is limited to mapping out the manner
in which trees growing near the Employer's lines shall be trimmed.
He turns this information over to the tree trimming contractor who
is responsible for executing the task. We find that the tree trimming
inspector is not a supervisor and shall, therefore, include him.
The distribution operation engineer and the meter and relay engi-
neers in the Transmission and Distribution Department. While the
Board excluded engineers from its unit findings in the earlier pro-
ceedings, it did not pass upon these particular classifications of engi-
neers. Like the engineers excluded, however, the duties of these
employees require professional training and experience and their
time is devoted to engineering problems. We are of the opinion that
these employees would more appropriately be grouped with others
of like education and interests and, accordingly, shall exclude them.
The safety inspectors in the Personnel Department. These em-
ployees make safety inspections of the Employer's property, investi-
gate accidents and assist in establishing safety programs. They also
conduct safety meetings among the employees. We are of the opinion
that the work of these employees is of an administrative nature and
that they should be excluded.
The advertising assistant in the Advertising Department. This
employee prepares advertising for newspapers and magazines. He
also assists with the publication of the employee periodicals. We are
of the opinion that this employee has no interests in common with those
of the employees in the unit hereinafter found appropriate and we
shall exclude him.
affirmed , that physical employees apart from clerical employees constituted a separate ap-
propriate bargaining unit. We considered and rejected the Employer's contention that there
was such close integration between its physical and clerical workers that a single unit of its
physical and clerical employees was mandatory. After each certification, however, the
Employer and the Intervenor thereafter bargained on the broader basis without respect
to the narrower unit delineation set forth in our decisions For these reasons, and on
the basis of the record in the instant case, we are not persuaded that the limited periods
of bargaining on the broader basis between the Employer and the Intervenor , and other
factors herein , justify our dismissal of the instant petition on the ground that a unit
of physical employees, excluding clerical employees, is inappropriate.
U The Petitioner contends that the meter readers should be included in the unit although
the Board excluded them in its earlier decision. No evidence at the heating was elicited
as to their duties. We shall , therefore, adhere to our foimer decision and exclude them.
INDIANAPOLIS POWER & LIGHT COMPANY 141
We find that all production, maintenance, construction, and dis-
tribution employees of the Employer, including from among certain
departments the categories listed in "Appendix A," but excluding
the employees in departments listed in "Appendix B," as well as all
clerks, stenographers, typists, telephone operators, accountants, billers,
collectors, safety inspectors, salesmen, saleswomen, watchmen and
special police, engineers, draftsmen, technical employees, special rep-
resentatives, administrative employees, the advertising assistant, and
supervisors, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
DIRECTION OF ELECTION 10
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with Indianapolis Power & Light
Company, Indianapolis, Indiana, an election by secret ballot shall be
conducted as early as possible, but not later than thirty (30) days
from the date of this Direction, under the direction and supervision of
the Regional Director for the Ninth Region, and subject to Sections
203.61 and 203.62 of National Labor Relations Board Rules and
Regulations-Series 5, among the employees in the unit found appro-
priate in Section IV, above, who were employed during the pay-roll
period immediately preceding the date of this Direction, including
employees who did not work during said pay-roll period because they
were ill or on vacation or temporarily laid off, but excluding those
employees who have since quit or been discharged.for cause and have
not been rehired or reinstated prior to the date of the election, and
also excluding employees on strike who are not entitled to reinstate-
ment, to determine whether they desire to be represented by Utility
Workers Union of America, Local 343, CIO or by Electric Utility
Workers Union, for the purposes of collective bargaining, or by neither.
APPENDIX A
Department Categories included in unit
Transmission and Distribution 11___ All but the distribution operation
engineer, meter and relay engi-
neers, service dispatchers, sten-
ographers, and clerks.
"Any participant in the election herein may, upon its prompt request to , and approval
thereof by, the Regional Director, have its name removed from the ballot.
it In the earlier proceedings, this department was designated as the Electrical Operating
Department.
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Department
Power Plants :
Categories included in unit
Harding Street --------------- All but clerks and special police.
Perry "K"___________________ All but clerks, research clerks,
and special police.
Perry "W"__________________ All but special police.
Mill Street ------------------- All but clerks and special police.
Mechanical______________________ All but the stenographers, typ-
ists, and clerks.
Steam Heat______________________ All but the stenographer and
technical assistant.
Real Estate______________________ Only the firemen-groundsmen.
Treasury ------------------------- Only the-general utility men.
APPENDIX B
Department
Advertising and Publicity.
Buildings and Grounds.
Customer Service.
Economy Methods and Practices.
Engineering.
General Accounting.-
Personnel.
Personnel and Public Relations.
Department-Continued
Purchasing.
Real Estate (except for Firemen-
Groundsmen).
Rate.
Sales.
Treasury (except for general util-
ity men).