Kentucky Power Co.

National Labor Relations Board - Board Decisions

Sep 27, 1974

213 N.L.R.B. 730 (N.L.R.B. 1974)

730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kentucky Power Company and Local 978 , Internation-
al Brotherhood of Electrical Workers, AFL-CIO-
CLC, Petitioner. Case 9-AC-44
September 27, 1974
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND PENELLO
On June 1 , 1970, the International Brotherhood of
Electrical Workers , hereinafter referred to as the
Union, was certified in Case 9-RC-8466 as the exclu-
sive bargaining representative for an appropriate
unit' of the Employer 's employees .' Thereafter, dur-
ing collective -bargaining negotiations with the Em-
ployer, the Union designated Local 1119 as its agent.'
Local 1119 executed two successive collective-bar-
gaining agreements with the Employer , the last of
which was in force from May 1, 1972, to April 30,
1974. A merger of Local 1119 and other locals into
Local 978 was completed on December 1, 1972, pur-
suant to the order of the Union's International presi-
dent . However , since December 1972, the Employer
has refused to recognize Local 978.
On March 28, 1974, Local 978 filed the instant AC
petition requesting that the Union 's certification be
amended by changing the certified bargaining repre-
sentative from the Union to Local 978. The Employer
opposes the granting of the petition and asserts that
such a change in the bargaining representative raises
a question concerning representation . The Employer
contends that it voluntarily recognized and negotiated
with Local 1119 as the designated agent of the Union
and that if that designation has terminated it may
insist on dealing only with the certified bargaining
representative , i.e., the Union . Finally, the Employer
asserts that its employees were not afforded a mean-
ingful voice in the Union' s decision to merge Local
1119 into Local 978, and that Local 978 , because of
its size and location , cannot adequately represent the
Employer's employees.
A hearing on the petition was held on May 8, 1974,
at Ashland , Kentucky, before Hearing Officer Robert
1 The unit is described as follows : All production and maintenance em-
ployees of the Employer at its plant located in Louisa, Kentucky, including
technical employees and plant clerical employees, but excluding all office
clerical employees , guards, professional employees and supervisors as de-
fined in the Act.
2 On July 30, 1971, in Case 9-RM-631, the Union was again certified as
the exclusive bargaining representative of the Employer 's employees in the
same unit.
3 In designating Local 1119 as its agent, the Union reserved the right to
change the designation "at any time." The Employer, in recognizing Local
1119, maintained that the Union could change agents only at the expiration
of a collective-bargaining contract.
J. Weir. Pursuant to the provisions of Section 102.67
of the National Labor Relations Board Rules and
Regulations, Series 8, as amended, the Regional Di-
rector for Region 9 transferred this proceeding to the
National Labor Relations Board for decision. There-
after, the Employer filed a brief.
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.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. The rulings are hereby af-
firmed.
Upon the entire record in this case, the Board finds
as follows:
The Union, through 10 separate locals, represented
approximately 850 employees in 14 different units. All
but one of these units were comprised of employees
of Appalachian Power Company. Local 1119, the lo-
cal involved herein, represented approximately 70
employees at the Employer's Big Sandy plant at Loui-
sa, Kentucky, as well as two units of approximately 20
and 60 employees each at the Fort Pleasant and Hunt-
ington, West Virginia, plants of the Appalachian
Power Company.
The parent group for these 10 locals was System
Council U-5, a body controlled and staffed by the
Union. This council handled all arbitrations, contract
negotiations, and other related matters for its member
locals and the various units thereof. Separate collec-
tive-bargaining agreements were negotiated for each
unit, including the unit involved herein. Thereafter
the contracts were separately ratified by the members
of each bargaining unit. Each bargaining unit also
conducted separate strike votes. Periodically there
were individual unit meetings, but each unit was not
individually represented within the System Council.
At various times, Kinser, of the System Council, acted
on behalf of the member locals in matters concerning
arbitration and collective-bargaining negotiations.
On October 23, 1972, the System Council decided
to merge all of its member locals into Local 978, an
affiliate of the Union. It was decided to initially seek
the approval of each local rather than to effect the
merger by fiat of the International president of the
Union.4 However, at a meeting of Local 1119 mem-
bers at its headquarters in Huntington, West Virginia,
a majority of the members present in effect voted not
The union constitution provides: The I .P. (International President) has
the right and power to merge or amalgamate L.U.'s (local unions) in any
community or section where the facts, developments or conditions-in the
judgment of the I.P.-warrant such action , also to decide the terms or details
of any merger or amalgamation where the L.U: s involved cannot or do not
agree."
213 NLRB No. 105
KENTUCKY POWER COMPANY
to approve the merger.' In addition to Local 1119, one
other member local of the System Council did not
approve the merger. On November 17, 1972, the Inter-
national president of the Union ordered the merger to
take place, effective December 1, 1972. On December
4, 1972, the Union informed the Employer of the
merger, but the Employer refused to recognize Local
978, saying that it had previously recognized Local
1119, which had executed the current collective-bar-
gaining agreement.
During December 1972 or January 1973, a second
Local 1119 meeting was held at Huntington. Present
at the meeting were Kinser, who had been appointed
acting business manager of Local 978, Williamson,
chief steward at the Employer's Big Sandy plant, and
Bailey, the business agent of Local 1119. Williamson
testified that written notice of the meeting "to discuss
possible merger" was posted at the Employer's plant
for an unspecified period of time. Approximately 50
to 100 employees from all 3 units which comprised
Local 1119 attended the meeting and, according to
Williamson, voted "almost unanimously" by a show
of hands to approve the merger.
During April 1973, the Union and the Employer
engaged in negotiations pursuant to a wage reopener
provision for the second year of the contract which
ran from May 1, 1972, to April 30, 1974. During the
negotiations, in which the Union was represented by
an International representative, the Union again re-
quested that the Employer recognize Local 978, say-
ing that Local 978 had replaced the System Council
and that Local 1119 had been merged into Local 978.
The Employer refused to allow Local 978 to execute
the contract and, when the former local 1119 officers
refused to sign the contract after it had been ratified
by the employees, the Employer obtained the signa-
tures of the employee-members of the Union bargain-
ing committee. The Union then filed unfair labor
practice charges against the Employer for bypassing
the Union and the Employer filed unfair labor prac-
tice charges against the Union for refusing to execute
the contract. These charges were eventually with-
drawn by both parties in October 1973 when the
Union agreed to execute the contract and the Em-
ployer agreed to execute a side agreement accepting
Local 978 as the Union's agent in administering the
contract.' Thereafter, the Union designated Kinser,
who was at that time financial secretary and business
manager of Local 978, and Williamson, an executive
5 The exact date of the meeting and the exact number of employees present
were not established in the record There was testimony , however , that the
meeting occurred after October 23 but prior to December I, 1972 In addi-
tion, there was no evidence that the employees received any notice, written
or oral , of the meeting
6 However, the Employer continued to refuse to check off dues for Local
978 and instead sent the checkoff money to Local 1119 which then endorsed
the checks over to Local 978
731
board member of Local 978 and chief steward at the
Employer's plant, to act as its agents in administering
the contract. Subsequently, they negotiated a collec-
tive-bargaining agreement with the Employer which
was executed by the Union on April 1, 1974.
On February 21, 1974, the employees at the
Employer's plant voted unanimously by a show of
hands to file the petition in the instant case.'
In opposing the instant petition, the Employer ar-
gues that the employees at its Big Sandy plant have a
smaller proportionate overall representation in the
new Local 978 than they had in Local 1119 which
represented only three units. However, this is not nec-
essarily a determinative factor in ascertaining whether
the basic identity of the employees' representative re-
mains the same.' In the instant case, the power of the
unit employees has not been diluted by the change in
representative from Local 1119 to Local 978 because
both locals are affiliated with the same International
Union and because there has been no change in the
basic obligation of the employee-members to the
Union or in the Union's obligation to the employees.
In addition, Local 978 offers the same services
through virtually the same individuals in connection
with contract negotiations, grievance and arbitration
handling, and other legal matters as did Local 1119
and System Council U-5. Local 978 has also contin-
ued the procedures used by Local 1119 for contract
proposals, negotiations, and ratification whereby
each unit of employees appoints a bargaining com-
mittee from its members, makes separate contract
proposals, and negotiates, through designated bar-
gaining agents, including its bargaining committee, a
separate contract with its employer. Thus, the
Employer's employees have retained significant con-
trol over their destiny by their power to participate in
contract negotiations, and to vote separately on con-
tract ratification and on strike votes. Arguably, the
Employer's unit employees presently have more au-
tonomy than they had before the merger because they
have separate representation on Local 978's executive
board, whereas they were not so represented within
Local 1119 or the System Council.
The Employer also questions the legality of the
merger of Local 1119 into Local 978, asserting that
improper voting and notification procedures were fol-
lowed and that the merger was therefore not properly
authorized by the employees involved. The evidence,
however, indicates otherwise. According to the
7 Written notice of the meeting was posted in the plant for approximately
2 weeks and approximately 20 employees attended the meeting The Employ-
er contends that this procedure was improper and that it therefore contami-
nated the merger of Local 1119 into Local 978 However , we need not reach
this contention inasmuch as the merger was previously effected and approved
in December 1972 and January 1973
9 Montgomery Ward & Co, Incorporated, 188 NLRB 551 (1971), United
Stares Gypsum Company, 164 NLRB 931 (1967)
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union's internal procedures, as set forth in its consti-
tution, the employees' consent to or approval of a
merger ordered by the International president is not
necessary. The International president is authorized
to order the merger of local unions and to determine
the terms thereof when in his opinion such a merger
is warranted. None of the former members of Local
1119 have protested the International president's ac-
tion or have challenged the procedures used to obtain
the approval of Local 1119 members to the merger.
Although, prior to the effectuation of the merger,
the Local 1119 members voted not to approve the
merger, they subsequently approved the already effec-
tuated merger at a meeting in December 1972 or Jan-
uary 1973. There is uncontradicted testimony that the
employees were given both written and verbal notice
of the meeting and were informed that the purpose of
the meeting was to discuss a "possible merger." Ac-
cording to Williamson, approximately 50 to 100 of the
approximately 150 members of Local 1119 attended
the meeting and voted "almost unanimously" to ac-
cept the merger. The fact that the vote was by a show
of hands rather than a secret ballot is not substantially
irregular as to negate the validity of the expressions of
the Local 1119 membership. We note that there were
no challenges by Local 1119 members to the voting
method used and there was no evidence of any impro-
prieties in the voting. In addition, there were no pro-
tests that the notice of the meeting was insufficient
and there is no evidence that any of the officers or
members of Local 1119 were opposed to the merger.'
Although the record does not establish the exact num-
ber of the Employer's employees who attended the
meeting, it is clear that they were given ample oppor-
tunity to express their preference as to the merger.
Finally, we note that Local 1119 has ceased to exist
as a representative of the Employer's employees. For
these reasons, we find that the procedures followed
for approval of the merger, which was effectuated by
the Union's International president, were proper.
The Petitioner has requested that we substitute it
for the Union as the certified bargaining agent for the
Employer's employees. However, we believe that the
realities of the situation as reflected in the record
require the addition, rather than the substitution of
Local 978 to the Union's certification. The evidence
establishes that the Employer has in fact been dealing
with both Local 978 and the Union jointly as the
representative of its employees. As above indicated,
the Employer and the Union mutually agree during
the term of the 1972-74 contract, in withdrawing their
respective unfair labor practice charges against each
other, that the Union would execute the wage reopen-
9 Cf. Missouri Beef Packers, Inc., et aL, 175 NLRB 1100 (1969).
er agreement dated May 1, 1973, in its capacity as the
certified bargaining representative of the Employer's
employees and that the Employer would accept Local
978 as the Union's agent to administer the contract
for its duration. The Union also agreed, at the
Employer's insistence, to execute the current collec-
tive-bargaining agreement dated May 1, 1974, which
was negotiated entirely by Local 978 Representatives
Kinser and Williamson and the employee committee
appointed from the unit. The Union's agreement to
continue to be the contracting party in the current
contract in effect carried forward the Employer's de
facto recognition of both the Union and Local 978 as
the joint representative of its employees. We cannot,
therefore, by way of an amendment to its certifica-
tion, absolve the Union from its obligations under
that contract and thereby nullify the apparent inten-
tions of the parties. To the contrary, in order to reflect
the course of dealing between the parties, we shall
amend that Union's certification to add Local 978
as a certified bargaining representative of the
Employer's employees. This amendment, however, is
not to be considered as a new certification or a recer-
tification.
ORDER
It is hereby ordered that the Certification of Repre-
sentative issued in Case 9-RC-8466 on June 1, 1970,
and the Certification of Representative issued in Case
9-RM-631 on July 30, 1971, to "International Broth-
erhood of Electrical Workers" be, and they hereby
are, amended by adding thereto "and Local 978, In-
ternational Brotherhood of Electrical Workers."
MEMBER FANNING , dissenting:
The majority's decision to change the Board's certi-
fication of the International by "adding" the name of
its Local 978 because the Employer has been dealing
with them "jointly" is illogical and unwarranted. A
Board certification reflects the Board's conclusion
that a particular union has won a Board election. That
union, and that union alone, remains certified until
the next Board election. No other union can be added
to the certification on the ground that the Employer
has been bargaining with that union as well as the
winner of the election. The majority has confused the
issue in this case by insisting that the Employer has
been engaged in "joint bargaining" with an Interna-
tional and its local. Nothing could be further from the
fact. Contrary to the majority, bargaining which oc-
curs between an employer and an international, in-
cluding its local, is not tripartite bargaining. An
international's local is merely a branch of its parent
and it has been standard Board law historically that
KENTUCKY POWER COMPANY
an employer bargains essentially with the same union
by bargaining with an international and/or its affili-
ate.
I believe this case must turn on the question wheth-
er it can reasonably be found that the Employer's
employees have agreed to the substitution of Local
978 of the International for the International under
the Board's certification of the latter . Since Local 978
is merely a section or affiliate of the International,
733
and not an entirely different labor organization, I see
no reason why the substitution should not be ap-
proved in this case. I note particularly that the record
shows that the employees of the Employer have now
approved the merger of their Local 1119 into Local
978.10
Accordingly , I would grant the petition of Local
978 to substitute its name for that of the International.
10 Cf. M A Norden Company, Inc, 159 NLRB 1730 (1966)