Northern Indiana Public Service Co.

National Labor Relations Board - Board Decisions

Jul 20, 1943

51 N.L.R.B. 500 (N.L.R.B. 1943)

In the Matter of NORTHERN INDIANA PUBLIC SERVICE COMPANY and
DISTRICT 50, UNITED MINE WORKERS OF AMERICA
Case No. R-6525.-Decided July 20, 19/x;
Mr. Leon A. Rosell, for the Board.
Mr. R. Stanley Anderson, of Hammond, Ind., for the Company.
Mr. Vernon Ford, of Chicago, Ill., for the U. M. W.
Mr. Frank S. Pryor, of Frankfort, Ind., Messrs. Dennis A. Manning
and Samuel Guy of Chicago, Ill., Mr. Elmer A. Johnson, of Indian-
apolis, Ind., Mr. Sidney Moffatt, of Gary, Ind., and Mr. Wilmer E.
Bodeker, of Fort Wayne, Ind., for the I. B. E. W.
Miss Melvern R. Krelow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by District 50, United Mine Workers of
America, herein called the U. M. W., alleging that a question affecting
commerce had arisen concerning the representation of employees of
Northern Indiana Public Service Company, Hammond, Indiana,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Charles E.
Persons, Trial Examiner. Said hearing was held at Chicago, Illinois,
on June 11 and 12, 1943. The Company, the U. M. W., and Inter-
national Brotherhood of Electrical Workers, A. F. of L., Local B-9,
herein called the I. B. E. W., appeared, participated, and were
afforded full opportunity to be heard, to examine and cross- examine
witnesses, and to introduce evidence bearing on the issues. At the
close of the hearing, the Company moved to strike from, the record
all testimony which pertained to proposed changes in the unit as orig-
inally contended for by the U. M. W. on the ground that it had not
been put on notice that such proposed changes would be requested'
I In its petition the U M. W. set forth the appropriate unit as "all product:,n, main-
tenance and distribution workers ." At the hearing it in effect amended its petition to
Include meter readers, and to exclude certain employees on the ground that they are
sups i visory.
51 N. L. R. B., No. 92.
500
NORTHERN INDIANA PUBLIC SERVICE 'COMPANY 501
The Trial Examiner referred the motion to the Board. We find
the Company's contention to be without merit, and hereby deny the
motion. Also at the close of the hearing, the I. B. E. W. moved that
it be certified as the exclusive bargaining representative of the Com-
pany's employees, or in the alternative that the petition be dismissed
on the grounds that the U. M. W. has lost membership among the
employees since a consent and a run-off election were held on March
17 and April 10, 1942, respectively, and that the U. M. W. does not
represent a sufficient majority of the employees to disturb a collective
bargaining contract between the Company and the I. B. E. W., which
the I. B. E. W. contends has not been terminated by either the Com-
pany or itself. The Trial Examiner referred the motion to the Board.
For reasons hereinafter set forth, we hereby deny the motion. The
Trial Examiner's rulings made at the hearing are free from preju-
dicial error and are hereby affirmed. All parties were afforded
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Northern Indiana Public Service Company, an Indiana corporation,
is a public utility and is engaged in furnishing and supplying elec-
tricity, gas and water in the northern portion of the State of Indiana.
During 1942, the Company's gross revenue was $26,113,846, of which
$659,485 was derived from the sales of -electrical and gas appliances.
During the same period, the Company purchased electrical and gas
appliances for resale purposes, 83 percent of which was shipped to the
Company from points outside the State of Indiana. The Company
operates 19 district offices, the principal office of which is located in
Hammond, Indiana; Other district offices are respectively located in
Fort Wayne, Crown Point, Gary, Michigan City, Valparaiso, South
Bend, and Elkhart, Indiana.
II. THE ORGANIZATIONS INVOLVED
District 50, United Mine Workers of America, is an unaffiliated
labor organization admitting to membership employees of the
Company.
International Brotherhood of Electrical Workers, Local B-9, is a
labor organization affiliated with the American Federation of Labor
admitting to membership employees of the Company.
IH. THE QUESTION CONCERNING REPRESENTATION
The I. B. E. W. and the Company have had written collective
bargaining agreements since May 1, 1937. On March 17, 1942, the
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company, the U. M. W., and the I. B. E. W. entered into a consent
election agreement. Pursuant to that agreement an election was held
on March 17, 1942, and a run-off election on April 10, 1942. The
I. B. E. W. won the run-off election, and on May 1, 1942, the Company
and the I. B. E. W. entered into a collective bargaining agreement
for 1 year, to continue in full force and effect from year to year there-
after unless written notice is given by either party on -or before sixty
(60) days prior to the annual expiration date, "requesting that the
agreement be amended or cancelled."
On February 27, 1943, the I. B. E. W. addressed a letter to the
Company notifying it that the I. B. E. W. desired "to discuss and
review several amendments, wage scales and working rules." The
letter further stated that the proposed amendments were being drafted
and would be submitted later.
On March 8, 1943, the U. M. W. wrote the Company that it repre-
sented a majority of its employees, and requested recognition as the
exclusive bargaining representative of the employees.
On March 11, 1943, the Company addressed a letter to the I. B. E. W.
calling attention to the conflicting claims of the U. M. W. which it
stated "must be resolved before collective bargaining can proceed."
On the same date , the Company wrote the U. M. W. calling attention
to its contract with the I. B. E. W., and suggested that the U. M. W.
either furnish proof of its majority position or submit the matter to
the Board for determination. On March 18, 1943, the U. M. W.
notified the Company that it was submitting the matter to the Board,
and on March 22, 19435 it filed the petition herein.
As heretofore stated, the I. B. E. W. contends, in effect, that the
contract dated May 1, 1942, is a bar to an investigation of representa-
tives. From the facts hereinabove set forth, it clearly appears that
the contract was not automatically renewed, and we find that this con-
tract is not a bar to an investigation of representation.
A statement prepared by the Regional Director, introduced in evi-
dence at the hearing, indicates that the U. M. W. represents a sub-
stantial number of employees in the unit hereinafter found to be
appropriate 2
We find that a question affecting commerce ' has arisen concerning
the representation of employees of the Company, within the meaning
2 The Regional Director reported that the U. M. W submitted 403 designations bearing
apparently genuine signatures . Of the 403 designations submitted , 360, 310 dated between
January and April 1943, and 50 undated, bear the names of persons whose names appear on
the Company 's pay roll of April 1, 1943. This pay roll contains the names of 964 em-
ployees It appears from the record, however, that there are approximately 950 employees
in the unit. At the hearing the U M W submitted 53 additional cards, all bearing appar-
ently genuine signatures , 31 of which bear the names of employees on the Company's pay
roll of April 1, 1943.
At the hearing, the financial secretary of the I. B. E W. stated that approximately 950
.employees were dues-paying members. '
NORTHERN INDIANA PUBLIC SERVICE COMPANY 503
of Section 9 (c) and Section 2 (6) and (7) of the National Labor
Relations Act.
IV. TEE APPROPRIATE UNIT
The parties are in agreement that the appropriate unit should com-
prise the production, maintenance and distribution employees, and
that the office and clerical employees, and certain supervisory em-
ployees, who are excluded from the contract between the I. B. E. W.
and the Company, should be excluded. The U. M. W. desires to in-
elude approximately 58 meter readers, who are excluded from the con-
tract, and to exclude 77 employees classified as supervisory, who are
covered by the contract. The Company and the I. B. E. W. desire
that the appropriate unit be defined strictly in accordance with the
coverage of their contract.
The meter readers employed by the Company are assigned to dis-
tricts, and their duties consist of reading water, gas, and electric
meters and of checking-their readings. When they verify their read-
ings they submit their reports to the chief meter reader. The meter
readers are under the general supervision of the chief clerk. These
employees may be promoted to positions in the clerical department, or
to positions in the operating or construction groups. From the fore-
going facts, we conclude that the work performed by the meter readers
is more closely allied with that of clerical employees than with that of
the employees in the production, maintenance and distribution depart-
ments. For this reason, and since they have not been covered by the
contract, we shall exclude meter readers from the unit.
The 77 employees classified as supervisory, referred to above,' re-
ceive orders from their superiors, transmit these orders to small gangs,
direct operation, account for materials, report on the progress of
operations, maintain the time record of the, crews, and are expected
to maintain discipline by carrying out the Company's policies and
requiring the observance of working rules. They do not have the
authority to hire or discharge, to promote, to permit lay-offs, or to
recommend such action. As stated above, they have been covered by
the contract, and the parties thereto desire their inclusion. From the
foregoing, it appears that these employees should be included in the
unit. Our inclusion of them, however, is dependent upon whether or
not they fit the definition of supervisory employees hereinafter set
forth.
3 Mechanical and electrical supervisor , line foremen , gas street department foremen,
electrical distribution department foremen, electric line department foremen, frequency
change department field foreman , water department service foremen , gas meter repair
foreman , transportation department mechanic foreman, street department fitter foremen„
street department foremen, chief water plant attendant , gas foreman , meter foreman, gas
street department assistant foreman , garage foreman , gas distribution department fore-
men, electrical distribution department working foreman , gas and water foreman, watch
engineers , and coal handling foreman.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We find that all production, maintenance, and distribution employees
of the Company, excluding clerical and office employees, meter readers,
and supervisory, employees of the Company 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 mean-
ing 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 our Direction of Elec-
tion herein, subject to the limitations and additions set forth in said
Direction.
A dispute has arisen with respect to certain employees classified as
"temporary" employees. The Company is obligated to maintain the
employment status of employees called into the armed forces of the
United States, and substitute employees are designated by the Com-
pany as "temporary." However, their tenure is "for the duration."
It is obvious that these so-called temporary employees should be en-
titled to vote. Other employees are classified as "temporary" because
the Company has relaxed its rule that married women and relatives are
not to be employed. It appears from the record that most of the
married women presently in the employ of the Company probably
fall within the category of clerical employees and should not be in-+
eluded in the unit. However, we conclude that "relatives" and married
women, who are properly within the definition of the unit, are eligible
to vote. The Company has in its employ approximately 25 high
school students, who were employed for the summer and were so em-
ployed by the Company with the expectation that they in all proba-
bility will return to school in the fall. We conclude that these
employees are not eligible to vote.
DIRECTION OF ELECTION
By virue 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 National Labor Rela-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Northern Indiana
Public Service Company, Hammond, Indiana, an election by secret
ballot shall be conducted as early as possible, but not later than thirty
NORTHERN INDIANA PUBLIC SERVICE COMPANY 505
(30) days from the date of this Direction, under the direction and
supervision of the Regional Director for the Thirteenth Region, acting
in this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 10, 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 vaca-
tion 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, to determine whether they desire to be represented by, District
50, United Mine Workers of America, or by International Brother-
hood of Electrical Workers, A. F. of L., Local B-9, for the purposes
of collective bargaining, or by neither.