Lexington Water Co.

National Labor Relations Board - Board Decisions

Sep 25, 1944

58 N.L.R.B. 536 (N.L.R.B. 1944)

In the Matter of LEXINGTON WATER COMPANY and INTERNATIONAL
BROTHERHOOD OF FIREMEN & OILERS, LOCAL 352, A. F. OF L.
Case No. 9-R1541.Decided September 25, 1944
Mr. William E. Stoney, of New York City, for the Company.
Mr. Harold L. Colvin, of Louisville, Ky., for the Brotherhood.
Mr. f. L. Kelley, of Evansville, Ind., for the Operating Engineers.
Miss Melvern R. Krelow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by International Brotherhood of Firemen
& Oilers, Local 352, A. F. of L., herein called the Brotherhood, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Lexington Water Company, Lexington, Ken-
tucky, herein called the Company, the National Labor Relations Board
provided for an appropriate hearing upon due notice before Louis S.
Penfield, Trial Examiner. Said hearing was held at Lexington, Ken-
tucky, on August 25,1944. The Company, the Brotherhood, and Inter-
national Union of Operating Engineers, Local No. 181, herein called
the Operating Engineers, appeared and participated. All parties were
afforded full opportunity to be heard, to examine, and cross-examine
witnesses, and to introduce evidence bearing on the issues. The Trial
Examiner's rulings made at the hearing are free from prejudicial error
and are hereby affirmed. All partiees were afforded an opportunity to
file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Lexington Water Company, a Kentucky corporation, with its prin-
cipal office located in Lexington, Kentucky, is engaged in furnishing
water for public, residential, commercial, and industrial uses in the city
58 N. L. R. B, No. 106.
536
LEXINGTON WATER COMPANY ®, 537
of Lexington and vicinity. For this purpose it maintains a pumping
station and water treatment plant near the city of Lexington. All
sources of water are derived from four impounding reservoirs located
near the city of Lexington, or from the Kentucky River. The Com-
pany serves an area with a population of approximately 68,000, and
has a total of 16,000 customers. During 1943, the Company supplied
to its customers approximately 2,193,900,000 gallons of water, of which
approximately 538,000,000 gallons were supplied to residential users,
444,000,000 gallons to industrial users, 524,000,000 gallons to govern-
mental agencies, 660,000,000 gallons to commercial users, and 27,500,000
gallons for public fire protection. Among its customers are companies
who engage in business affecting interstate commerce, 3 interstate rail-
roads, and an army signal depot. The Company purchases supplies
valued at approximately $50,000 annually, virtually all of which is
shipped to the Company from points outside the State of Kentucky.
We find that the Company is engaged in commerce within the mean=
ing of the National Labor,Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Firemen & Oilers, Local 352, and In-
ternational Union of Operating Engineers, Local No. 181, both affili-
ated with the American Federation of Labor, are labor organizations
admitting to membership 'employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Company and the Operating Engineers executed a collective
bargaining contract in 1941, another in 1942, and the agreement pres-
ently in existence on August 22, 1943. All three covered the same
employees as are here involved. The contract entered into on August
22, 1943, covers a period of 4 years, and contains a provision that if
either party desired to change a section or sections of the contract,
written notice shall be served on the other party at least 30 days prior
to the end of each 12-month period after the effective date of the
agreement. On or about July 21, 1944, the Brotherhood requested
recognition from the Company as bargaining representative for its
employees, but the Company has refused such request until the Brother-
hood is certified by the Board in view of the existing agreement be-
tween the Company and the Operating Engineers.
We have frequently held that a contract covering an unreasonable
length of time and which has been in effect for a year or more does not
constitute a bar to an investigation and certification of representatives.
At the date of the hearing, the contract of August 22, 1943, had been
in effect for more than a year and had almost 3 years to run. We find
538 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that this contract does not constitute a bar to a present investigation of
representatives.,
A statement of a Board agent, introduced into evidence at the hear-
ing, indicates that the Brotherhood represents a substantial number of
employees in the unit hereinafter found appropriate.2
We find that a question affecting commerce has arisen concerning
the representation of employees of the Company within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
We find, substantially in accordance with an agreement of the
parties, that all employees of the Company, excluding office workers,
.clerical workers, the chief engineer, the general foreman, the chief
chemist, company executives, and all other supervisory employees with •
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, constitute a unit appropriate for the purposes of collective
bargaining within the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tion herein, subject to the limitations and additions set forth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of the National Labor
114 fatter of Wichita Union Stockyards Company, 40 N L. R. B 369, and cases cited
therein.
2 The Field Examiner reported that the Brotherhood submitted 25 authorization cards ;
that the names of 24 persons appearing on the cards were listed on the Company 's pay roll
of August 3, 1944, which contained the names of 26 employees in the appropriate unit ; and
that the cards were dated in June 1944
The Operating Engineers relies upon its contract as evidence of interest in this pro-
ceeding. On June 8, 1944 , the employees signed a document in which they advised the
Company of "the discontinuance of (their ) affiliation" with the Operating Engineers, that
they intended "choosing a different bargaining agency" and that they were withdrawing
the authority "for (the Company ) to deduct dues from ( their ) wages to be forwarded to
Local #181." A copy of this document was also forwarded to the Operating Engineers.
In accordance with this request the Company ceased deducting dues after the month of
June 1944 At the hearing, a representative of the Operating Engineers conceded that
none of the employees has paid dues since June, but maintained that in accordance with
a 3-month period of grace existing under - the Operating Engineers ' constitution , none of
the employees had been suspended , and that all were still members of the Operating
Engineers.
LEXINGTON WATER COMPANY 539
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to-ascertain representa-
tives for the purposes of collective bargaining- with Lexington Water
Company, Lexington, Kentucky, 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, acting in this matter
as agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among the
employees in the unit found appropriate 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, and including employees in the armed forces of the United
States who present themselves in person at the polls, but excluding
any who have since quit or been discharged for cause and have not
been rehired or reinstated prior to the date of the election,,to deter-
mine whether they desire to be represented by International Brother-
hood of Firemen & Oilers, Local 352, A. F. of L., or by International
Union of Operating Engineers, Local No. 181, for the purposes of
collective bargaining, or by neither.