The Narragansett Electric Co.

National Labor Relations Board - Board Decisions

Dec 20, 1945

64 N.L.R.B. 1492 (N.L.R.B. 1945)

In the Matter of THE NARRAGANSETT ELECTRIC COMPANY and UNITED
MINE WORKERS OF AMERICA, DISTRICT 50
Case No. 1-R-2499.Decided December R O, 1945
Messrs. Earl A. Sweeney and R. )E. Nook, of Providence, R. I., for
the Company.
Mr. Samuel E. Angoff and Messrs. Robert R. Wright, Thomas B.
Lilly, and Albert Jordan, of Boston, Mass., for the Mine Workers.
Mr. William E. Walsh, of Providence, R. I., for the Brotherhood.
Mr. John J. Regan, of Boston, Mass., for the A. F. L.
Miss Katherine Loomis, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon a petition duly filed by United Mine Workers of America,
District 50, herein called the Mine Workers, alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of The Narragansett Electric Company, Providence, Rhode
Island, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
John W. Coddaire, Jr., Trial Examiner. The hearing was held at
Providence, Rhode Island, on August 31 and September 7, 1945. The
Company, the Mine Workers, Brotherhood of Utility Workers of New
England, Inc., herein called the Brotherhood, and International
Brotherhood of Electrical Workers, A. F. L., herein called the A. F. L.,
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 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
I. THE BUSINESS OF THE COMPANY
The Narragansett Electric Company, is a Rhode Island corporation
having its principal office in Providence, Rhode Island, and plants in
64 N. L . R. B., No. 242.
1492
THE NARRAGANSETT ELECTRIC COMPANY 1493
various locations throughout that State. The Company is engaged
in the manufacture and sale of electricity and gas and is a direct
subsidiary of the Rhode Island Public Service Corporation which
is in turn a subsidiary of the New England Power Association. Dur-
ing the 6 months ending April 30, 1945, the Company purchased
raw materials valued at $1,699,100, and, in addition, electricity in
the amount of $88,154 from producers in Massachusetts, and elec-
tricity in the amount of, $2,079 from producers in Connecticut. Dur-
ing the same period the Company's total sales of electricity amounted
to $8,243,194. Of this amount $546,230 represents sales to customers
in Massachusetts and $124,586 to customers in Connecticut.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
II. THt ORGANIZATIONS INVOLVED
United Mine Workers of America, District 50, unaffiliated; Brother-
hood of Utility Workers of New England, Inc., unaffiliated; and In-
ternational Brotherhood of Electrical Workers, affiliated with the
American Federation of Labor, are all labor organizations admitting
to membership employees of the Company.
III. THE ALLEGED QUESTION CONCERNING REPRESENTATION
Since 1934 the Brotherhood has represented the Company's em-
ployees under successive yearly written contracts.' The latest of these
contracts was executed on the morning of May 16, 1945, and provides,
inter alia, that it shall remain in full force and effect until May 17,
1946, and for yearly periods thereafter in the absence of notice of ter-
mination given by either party to the other, 30 days prior to the end
of any contract year, "which is the 17th day of May." On May 15,
1945, the Mine Workers gave notice to the New England Public Serv-
ice Company 2 of its claim to represent the Company's employees.
The Company was not given notice of the claim until the afternoon
of May 16, 1945. The Brotherhood asserts that the 1945 contract is
a bar to the present proceeding. The Mine Workers contends that
notice of its claim given to the New England Public Service Com-
pany on May 15, 1945, was constructive notice to the Company as of
that date, and, in addition, attacks the effectiveness of the 1945 con-
tract as a bar on various other grounds.
' The contract of 1934 was entered Into by the Brotherhood of Utility Workers of Amer-
ica, the predecessor of the Brotherhood . Both organizations are hereinafter referred to as
the Brotherhood.
2 The New England Public Service Company is a subsidiary of the New England Power
Association . The Company , as mentioned under Section 1, supra, is a subsidiary of the
Rhode Island Public Service Corporation , which in turn is a subsidiary of the New England
Power Association.
1494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is true that the president of the New England Power Association
was consulted by the Company before the 1945 contract was signed.
But it does not appear that the New England Power Association and
the New England Public Service Company have common officers or
directors. It is also true that the New England Public Service Com-
pany handled labor relations negotiations for the Company from 1934
to 1936, and, until 1941, continued to furnish labor relations services
to the Company upon request. However, it is clear from the record
that the Company has not requested labor relations services from the
New England Public Service Company since 1941, and that the
terms of the 1945 contract were discussed and agreed upon by the
Brotherhood and the Company and the contract signed without any
participation by the New England Public Service Company. Thus,
the only theory by which notice to the New England Public Service
Company could constitute notice to the Company is through the re-
lationship that exists between them as a result of the relationship
they each bear to the New England Power Association. This relation-
ship is too remote to support a finding of notice to the Company on
May 15, 1945.
Since 1940 the contracts between the Brotherhood and the Company
have contained a clause requiring all "permanent employees" ; to be
members of the Brotherhood and another clause authorizing a volun-
tary check-off of membership dues from wages. - The customary
method used by the Company to determine the majority representation
of the Brotherhood before entering into contracts with it has been by
the number of dues deduction cards on file with the Company. This
was the method used with respect to ,the 1945 contract. There is some
testimony in the record to indicate that, prior to negotiating the first
contract with the Company in 1934, a majority of the employees indi-
cated that they wished to be represented by the Brotherhood.
The Mine Workers appears to question the validity of the 1945 con-
tract on the ground that, in view of the union-shop provision and the
check-off, the number of dues deduction cards was not truly indicative
of the majority status of the Brotherhood. It also stresses that there
is no evidence that the Brotherhood presented proof of its majority
status to the Company at the time these parties entered into their first
contract in 1934. In Matter of Detroit Michigan Stove Company 4
a somewhat similar issue was presented to the Board for determina-
tion. The Board there said :
... there was introduced at the hearing no competent evidence
tending to establish that the [contracting union] lacked majority
8 The contract defines a "permanent employee" as "any employee who has been employed
by the Company continuously for a period of 6 months "
51 N. L. R . B. 347. See also , Matter of The Lamson Brothers Company, 59 N. L. R B.
1561, ftn. 22.
THE NARRAGANSETT ELECTRIC COMPANY 1495
representation among the employees of the Company upon the
date of the execution of the contract in question. While we do
not at the present time decide what would have been the result
had such evidence clearly appeared in the record, we are of the
opinion that the customary presumption of regularity and validity
of contracts is controlling in the present instance.
Since in the instant proceeding there is no evidence that the Brother-
hood did not have majority representation either at the time the 1934
contract was entered into or at the time the 1945 contract was made,
the principle enunciated in Matter of Detroit Michigan Stove Com-
pany is determinative of this issue.
The Mine Workers also contends that the clause in the 1945 contract
warranting that a majority of the Company's employees are members
of the Brotherhood and have designated it as their bargaining repre-
sentative 6 "invite an election at any time that any competing labor
organization can show a sufficient number of cards and has filed an
application for an election." The Mine Workers cites Matter of Farr
Alpaca, Company, Inc." in support of this contention. There, that
company had recognized the contracting union as collective bargaining
representative "as long as it represented a majority of the Company's
employees" and had entered into a contract with it for 1 year. The
Board said : "In view of the above-quoted provision, the contract can-
not be considered a bar . . ." In the Farr Alpaca case the contract
was expressly conditioned upon the contracting union's continuing
majority representation, thus making it one subject to termination at
any time that this union's majority status was questioned. Here, the
Brotherhood merely warranted that at the time the 1945 contract was
executed a majority of the employees were its members and that it had
been designated by a majority as the exclusive bargaining agent of all
employees.
The Mine Workers further contends that the fact that the 1945
agreement is entitled as one between the Company and "Those of Its
Employees Who are Members of Locals Nos. 310 and 314 Brother-
hood of Utility Workers of New England, Inc.," makes it a "members
only" contract and, therefore, not operative as a bar. Although a
contract for members only is not operative as a bar, here the contract
requires all "permanent employees" to be members of the Brother-
8 The clause reads as follows :
Whereas, as an inducement to the execution of this Agreement by the Company, the
Brotherhood represents and warrants that a majority of the employees in each Depart-
ment of the Company are active members of said Local 310 or said Local 314 and that
the Brotherhood has been designated by said majority to be the exclusive representa-
tive of all the employees in each of such departments for the purpose of collective
bargaining in respect to rates of pay, wages , hours of employment or other conditions
of employment, .. .
This clause appeared for the first time in the 1940 contract between the parties.
09 N. L. R. B. 1208.
1496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
hood. Moreover, in one place the agreement itself states that "the
Brotherhood is hereby recognized as the exclusive representative of
all the employees in each department of the Company . . . ." It is
therefore apparent that the 1945 contract is not of the members-only
variety.
The Mine Workers raises as its final contention that it "should be
able to obtain an election because of the provision which permits a
reopening of the [1945] contract" with regard to the wage issue.7 In
Matter of Green Bay Drop Forge Company,8 the contract provided
that it could be reopened to consider vacation allowances and wage
scales, and the parties negotiated with respect to such matters during
its term. The Board, in holding the contract to be a bar, said:
Due to the exigencies of the Company's business, wage scales
and vacation schedules must be renegotiated at intervals not
necessarily coinciding with the contract term. Voluntary ne-
gotiations for amendment of a contract, where the parties do
not undertake to alter the duration of the contract do not neces-
sarily prevent the automatic renewal thereof pursuant to a provi-
sion providing for such renewal, especially where, as in the in-
stant case, the negotiations concern platters which are subject to
constant change, contemplated by and provided for in the con-
tract itself.
We find that the 1945 contract between the Brotherhood and the
Company is a bar to a present determination of representatives.
Accordingly, we shall dismiss the petition of the Mine Workers;
however, such dismissal is without prejudice to the right of the Mine
Workers to file a petition a reasonable time prior to April 17, 1946,
the next automatic renewal date of the contract.
ORDER
Upon the basis of the foregoing findings of fact and the entire
record in the case, the National Labor Relations Board hereby orders
that the petition for investigation and certification of representatives
of employees of The Narragansett Electric Company, Providence,
Rhode Island, filed by United Mine Workers of America, District 50,
be, and it hereby is, dismissed.
7 The 1945 agreement provides as follows :
. . . notwithstanding the provisions of this Article or the provisions of any
other Article embodied in this agreement, that if there shall be any announced or ad-
mitted change in the national wage stabilization policy during the life of this agreement
which permits of adjustments in the wage rate structure in effect under this agreement
either party may, by giving written notice to the other party within thirty (30)
days of such change in stabilization policy, reopen the matter of wages.
This clause appeared for the first time in the 1945 contract.
8 57 N. L . R. B. 1417.