65 N.L.R.B. 912 (N.L.R.B. 1946)

The Potomac Edison Co.

National Labor Relations Board - Board DecisionsFeb 8, 1946

65 N.L.R.B. 912 (N.L.R.B. 1946)

U In the Matter of THE POTOMAC EDISON COMPANY and UTILITY WORKERS UNION OF AMERICA, C. I. O. Case No. 5-R-2076.-Decided February; 8, 1946 Mr. George S. Humphrey, of Hagerstown, Md.,for the Company. -Mr. Oliver J. Harper, of New York City, and Mr. Reginald Brown, of Pittsburgh, Pa., for the C. 1. 0. Mr. Phil Ferrara, of Trenton, N. J., for the A. F. L. M71r. Warren H. Leland, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by Utility Workers Union of America, C. I. 0., herein called the C. I. 0., alleging that a question affecting commerce had arisen concerning the representation of employees of The Potomac Edison Company, Hagerstown, Maryland, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Joseph B. Robison, Trial Examiner. The hearing was held at Cumberland, Maryland, on Oc- tober 24, 1945. The Company, the C. I. 0., and International Broth- erhood of Electrical Workers, A. F. L., herein called the A. F. L., appeared and participated. All parties were afforded full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. The Trial Examiner's rul- ings 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 Potomac Edison Company is a Maryland corporation furnish- ing power and light in the State of Maryland, and, through subsidiary 65 N. L. R. B., No. 162. 912 THE POTOMAC EDISON COMPANY 913 companies , in the Commonwealths of Pennsylvania and Virginia and the State of West Virginia. Its principal office is located in Hagers- town , Maryland. The annual gross income of the Company is in excess of $100,000. During 1944 more than 25 percent of the raw materials necessary for the Company's operations was purchased from points outside the State of Maryland. During 1944, the Com- pany sold more than 400,000,000 kilowatt hours of electricity, of which more than 200,000,000 kilowatt hours were sold to utility com- panies located outside the State of Maryland. We find that the Company is engaged in commerce within the mean- ing of the National Labor Relations Act. II. THE ORGANIZATIONS INVOLVED Utility Workers Union of America is a labor organization affiliated with the American Federation of Labor, admitting to membership employees of the Company. International Brotherhood of Electrical Workers is a labor organi- zation affiliated with the American Federation of Labor, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION By letter dated August 17, 1945, the C. I. O. notified the Company that it claimed to represent a majority of the Company's employees and requested recognition as their bargaining agent. The Company refused to grant such recognition until the C. I. O. has been certified by the Board in an appropriate unit. The A. F. L. contends that it has a presently existing contract with the Company which precludes a determination of representatives at this time. The contract upon which it relies was made between Local 1140-B of the A. F. L. and the Company, and contained the following provisions : This agreement shall take effect as of July 1, 1944, and shall continue in full force and effect until June 30, 1945, and from year to year thereafter unless terminated by either party as herein provided. At the option of the Brotherhood, this agreement may be extended to October 31, 1945. If the Brotherhood or the Com- pany desires to terminate or effect changes in this agreement on July 1, 1945, or on the termination date of any annual renewal hereof, then it shall give the other party written notice of such desire at least sixty (60) days prior to such termination date. The giving of such notice by one party only shall have the same effect as if a general notice of desire for changes had also been 914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD given at the same time by the other party hereto. After the giving of any such notice of desire to modify the provisions hereof, the agreement shall remain in full force and effect until a new agreement has been reached; or provided that if negotia- tions continue beyond the termination of the annual period, either party may then terminate this agreement at any time upon ten (10) days written notice to the other party. However, changes may be made at any time by mutual consent. On April 25, 1945, Local 1140-B notified the Company that it desired to effect changes in the contract. In May 1945, the A. F. L. was in- formed by Local 1140-B of the notice sent by the latter. The record clearly shows that the A. F. L. approved this notice. On July 31,1945, Local 1140-B sent notice to the Company of its intention to terminate the contract ten (10) days from July 31. The A. F. L. contends that the July 31 notice of termination was not approved by it, and hence was ineffective under its constitution and by-laws. But the notice of May 4, 1945, transformed the agree- ment into one of indefinite duration, inasmuch as it was to continue until a new contract had been reached, and could be terminated on ten (10) days' notice. For this reason alone, the 1944 agreement cannot serve to bar a current determination of representatives.' A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the C. I. O. represents a substantial number of em- ployees 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, in substantial accordance with the stipulation of the par- ties, that all production and maintenance employees of the Company's River Plant, Celanese Plant, and Steam Heating Plant, all located in the Cumberland district, including guards,3 but excluding clerical employees, test engineers, watt engineers, the superintendent, assist- ant superintendent, and all other supervisory employees with author- ity to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, con- See Matter of Ball Brothers Company , 54 N. L. R . B. 1512 2 The Field Examiner reported that the C I O. submitted 53 cards bearing the names of 52 employees listed on the Company 's pay roll of August 30, 1945 , and that the cards were dated August 1945 . There are approximately 52 employees in the alleged appropri- ate unit. The A. F. L. apparently relies on its contract as evidence of its interest in this proceeding. 3 The guards are not at present militarized. THE POTOMAC EDISON COMPANY 915 stitute 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 employees in the appropriate unit who were employed during the pay-roll period immediately preceding the date of the Direction of Election herein, subject to the- limitations and additions set forth in the Direction. Question arises concerning the voting eligibility of employees des- ignated on the pay roll as " temporary." These workers are, in fact, probationers, who are given a 6-month trial period. After this time they are generally regarded as regular employees. They apparently work under the same conditions as other employees. In view of the facts, we shall permit them to participate in the election. 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 Re- lations Act, and pursuant to Article III, Section 9, of National Labor 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 The Potomac Edison Company, Hagerstown, Maryland, an election by secret bal- lot 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 Fifth 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 Regula- tions, among 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 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, to determine whether they desire to be represented by Utility Workers Union of America, C. I. 0., or by International Brotherhood of Electrical Workers, A. F. L., for the purposes of collective bargaining, or by neither.