Utility Workers Local 111

National Labor Relations Board - Board Decisions

Apr 25, 1973

203 N.L.R.B. 230 (N.L.R.B. 1973)

230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Utility Workers Union of America , AFL-CIO, and its
Locals Nos . 111, 116, 138, 159, 264, 361 , 426, 468,
478, and 492 and Ohio Power Company and Central
Operating Company and Wheeling Electric Compa-
ny. Cases 8-CB-1789, 8-CB-1790, and 8-CB-1791
April 25, 1973
DECISION AND ORDER
BY MEMBERS JENKINS , KENNEDY , AND PENELLO
On December 7, 1972, Administrative Law Judge
Eugene George Goslee issued the attached Decision
in this proceeding. Thereafter, the Respondents filed
exceptions and a supporting brief, and the Charging
Parties filed an answering 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 considered the record' and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings , findings, and
conclusions of the Administrative Law Judge 2 and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondents, Utility Workers of
America, AFL-CIO, and its Locals Nos. 111, 116,
138, 159, 264, 361, 426, 468, 478, and 492, and each
of them, their officers, agents , and representative,
shall take the action set forth in said recommended
Order.
i As the record , including the exceptions and briefs , adequately presents
the issues and positions of the parties , the Respondents ' request for oral
argument is hereby denied
The Respondents appear to contend that the complaint should be dis-
missed as to Locals 159 and 478, which are the exclusive bargaining repre-
sentatives of the employees of Ohio Power Company at the Beech Bottom
plant and the Cardinal plant , respectively , on the ground that none of the
parties who filed unfair labor practice charges pertaining to these two plants
had the standing to do so. We find no merit in this contention, as any person
may file such charges. Monroe Manufacturing Company, Division of Continen-
tal Oil Company, 167 NLRB 1074, In. 2
2 In adopting the conclusion of the Administrative Law Judge that the
Respondents violated Sec 8(b)(3) of the Act, we agree that the facts in the
instant proceeding are significantly distinguishable from those in the Phelps
Dodge case , in which the U S. Court of Appeals for the Third Circuit set aside
the Board 's finding of an 8(b)(3) violation AFL-CIO Joint Negotiating Com-
mitteefor Phelps Dodge v N L R.B., 459 F.2d 374, as amended May 25, 1972,
setting aside 184 NLRB 976; cert. denied 409 U S 1059 (1972).
In that case , the unions sought common contract expiration dates and
simultaneous settlements of all contracts , but separate negotiations were
conducted at each company 's unit and no bargaining was conducted at any
unit with regard to wages, terms, or employment conditions at other locals
Here , the evidence is clear that , from the outset of the bargaining negotiations
until final agreements were reached in the various bargaining units, the
Respondents demanded and insisted that identical offers had to be made by
the companies for all of the units and threatened that no offer with respect
to any single unit would be accepted or submitted to ratification until concur-
rent offers had been made for all of the other units.
DECISION
STATEMENT OF THE CASE
EUGENE GEORGE GOSLEE, Administrative Law Judge: This
proceeding came on to be heard before me at Canton, Ohio,
on September 19 and 20, 1972, upon a consolidated com-
plaint,' as amended , issued by the General Counsel of the
National Labor Relations Board and an answer , as amend-
ed, filed by Utility Workers Union of America , AFL-CIO,
and its Locals Nos. 111, 116 , 138, 159 , 264, 361 , 426, 468,
478, and 492 , hereinafter sometimes referred to as the Re-
spondents . The issues raised by the pleadings in these con-
solidated cases relate to whether or not the Respondents
violated Section 8(b)(3) of the National Labor Relations
Act, as amended, by acts and conduct hereinafter detailed.
Briefs have been received from the General Counsel, the
Respondents , and the charging Employers , and the briefs
have been duly considered.
Upon the entire record 2 in this proceeding , and from my
observation of the testimony and demeanor of the witness-
es, I hereby make the following:
FINDINGS OF FACT AND CONCLUSIONS
I THE BUSINESS OF THE EMPLOYERS
Ohio Power Company, Central Operating Company, and
Wheeling Electric Company are public utilities , engaged in
the generation , sale, and distribution of electrical energy,
and each is a subsidiary of American Electric Power Com-
pany. Ohio Power Company, hereinafter called Ohio Power,
is an Ohio corporation , maintains its principal office and
place of business at Canton, Ohio , and annually sells and
distributes electrical power to customers in an amount val-
ued in excess of $500,000. Central Operating Company,
hereinafter called Central Operating , is a West Virginia cor-
poration , maintains its pnncipal office and place of business
in Mason County , West Virginia , and annually sells and
i The consolidated complaint in this proceeding was issued on July 3, 1972,
amended on August 28 , 1972, and is predicated on charges filed on Novem-
ber 9, 1971 (Case 3-CB-1789), November 10, 1971 (Case 8-CB- 1790), and
November 10, 1971 (Case 8-CB-1791) The charges in Cases 8-CB- 1790 and
8-CB-1791, were originally filed and docketed as Cases 9-CB-2096-1
through 9-CB-2066- 11 and 6-CB-2242, respectively , but were transferred to
Region 8 by orders issued by the General Counsel on November 17, 1971.
The Respondent labor organizations admit timely service of the charges and
the General Counsel 's orders transferring cases
2 The file of exhibits in this proceeding contains Charging Party 's Exhs.
5-9, which are notes kept by Ohio Power Company during the course of five
bargaining sessions . The notes were marked as exhibits but were not received
in evidence, and the notes were limited in use to refreshing the recollection
of witness Leslie P Scales Accordingly, as the exhibits are not a part of the
record , no consideration has been given to their contents in arriving at the
findings and conclusions recited in this Decision.
203 NLRB No. 55
UTILITY WORKERS LOCAL 111
distributes electrical power to customers in an amount val-
ued in excess of $500,000. Wheeling Electric Company,
hereinafter called Wheeling Electric, is also a West Virginia
corporation, maintains its principal office and place of busi-
ness at Wheeling, West Virginia, and annually sells and
distributes electrical power to customers in an amount val-
ued in excess of $500,000. In addition, Ohio Power, Central
Operating, and Wheeling Electric, and each of the corpora-
tions, annually purchases and receives goods and products
valued in excess of $50,000 from sources situated outside the
States where their respective operations are located. In ac-
cordance with the pleadings, and a stipulation arrived at
during the course of the hearing, I find that Ohio Power,
Central Operating, and Wheeling Electric are employers
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Respondent Utility Workers Union of America, AFL-
CIO, and its Respondent constituent Locals 111, 116, 138,
159, 264, 361, 426, 468, 478, and 492, are labor organizations
within the meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICE ALLEGED
The gravamen of the consolidated complaint in this pro-
ceeding is that the Respondents violated Section 8(b)(3) of
the Act by insisting that final settlements of the collective-
bargaining contracts covering separate units of employees
of Ohio Power, Central Operating, and Wheeling Electric be
withheld until final agreement was reached between the
Respondents and the Employers in all the units in which the
bargaining was taking place. The General Counsel alleges
that the object of the Respondents' conduct was to force
and require the Employers to agree to similar contracts,
with similar contract terms, and therefore constituted an
unlawful demand for multicompany bargaining in contra-
vention of the separate units previously established by rec-
ognition or certification. The Respondents deny that they
have engaged in any conduct in violation of the Act, and in
support of their defense have advanced certain arguments,
assertions, and contentions, each of which will be further
considered below.
A. The Operations of Ohio Power
Ohio Power, a wholly owned subsidiary of American
Electric Power Company, is engaged in both the generation
and transmission of electrical power at several locations
within the State of Ohio. Insofar as its operations are rele-
vant to this proceeding Ohio Power operates four generating
stations, which are referred to in the record as the Philo,
Tidd, Kammer, and Mitchell plants. In addition, Ohio Pow-
er is the operating agent for the Windsor plant, which is
sometimes identified in the record as the Beech Bottom
plant. The Beech Bottom plant is owned by Beach Bottom
Power Company, Inc., a West Virginia corporation, and this
entity is in turn jointly owned by Ohio Power Company and
West Penn Power Company. Ohio Power Company is also
231
the sole operating agent for the Cardinal plant, owned by
Cardinal Operating Company of Brilliant, Ohio. Cardinal
Operating Company is jointly owned by Ohio Power Com-
pany and Buckeye Power Company.
For the purpose of collective bargaining, the employees
of Ohio Power at the Philo plant are represented by Respon-
dent Local 138; the employees at the Tidd plant are repre-
sented by Respondent Local 361; the employees at the
Kammer plant are represented by Respondent Local 468;
the employees at the Mitchell plant 3 are represented by
Respondent Local 492; the employees at the Beech Bottom
plant are represented by Respondent Local 159; and the
employees at the Cardinal plant are represented by Respon-
dent Local 478. As a part of its overall operations, Ohio
Power also maintains a central warehouse section, and the
employees at this location are represented for the purpose
of collective bargaining by Respondent Local 116. Like the
bargaining unit at the Mitchell plant, the unit in the central
warehouse section was recently certified by the Board, and
the bargaining in this unit was for an initial contract.
With respect to its transmission facilities, for the purposes
relevant to this proceeding, Ohio Power maintains a western
division, comprised of divisions 7, 8, and 9, with their re-
spective operations located at Tiffin, Findley, and Lima,
Ohio. Respondent Local 111 is the certified bargaining rep-
resentative for the employees in a consolidated unit for
Tiffin-Findley-Lima. Included in the Tiffin-Findley-Lima
unit are the employees at Woodcock , a small generating
plant located at Bluffton, Ohio. Ohio Power Company also
maintains a central division, comprised of divisions 2 and
3, located at Canton and Coshocton, Ohio. The Respondent
Local 116, which also enjoys the bargaining rights for the
central warehouse section, is the certified bargaining repre-
sentative for a single unit of Canton-Coshocton employees.
In total, approximately 1,200 Ohio Power employees are
included in the several bargaining units , roughly divided
between 500 assigned to the powerplants and 700 assigned
to the divisions. Except for the newly certified units at the
Mitchell plant and the central warehouse section, the terms
and condition of employment for the employees in each of
the separate units identified above were specified in sepa-
rate collective-bargaining agreements, all of which expired
by their terms in 1971 The contracts between Ohio Power
and Respondent Locals 138, 159, 361, 468, and 478, for the
Philo, Windsor, Tidd, Kammer, and Cardinal plants, ex-
pired on May 31, 1971. The contracts between Ohio Power
and Respondent Locals 111 and 116, for the Tiffin-Findley-
Lima and Canton-Coshocton divisions, expired on June 30,
1971. The Respondents served timely notices on Ohio Pow-
er to reopen the contracts for further negotiations.
B. The Operations of Central Operating
Central Operating, which is jointly owned by Ohio Power
and Appalachian Power Company, owns the Phillip Sporn
Power plant which is located in Mason County, West Vir-
ginia . Appalachian Power Company, like Ohio Power, is a
3 The bargaining unit at the Mitchell plant came into existence in 1971,
prior to the onset of negotiations, and as a result of a Board certification The
bargaining for this unit was for an initial contract
232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subsidiary of American Electric Power Company, and is the
operating agent for the Sporn plant. The employees at the
Sporn plant, numbering approximately 225, are represented
for the purpose of collective bargaining by Respondent Lo-
cal 426. The contract between Central Operating and Re-
spondent Local 426 expired on June 30, 1971. Insofar as the
record reflects, Respondent Local 426 served timely notice
of its intent to reopen the contract for further negotiations.
C. The Operations of Wheeling Electric
Wheeling Electric, which is also a subsidiary of American
Electric Power Company, owns and operates generating
and transmission facilities at Wheeling , West Virginia. Em-
ployees of Wheeling Electric, comprising a unit of approxi-
mately 62, are represented for purpose of collective
bargaining by Respondent Local -264. A prior collective-
bargaining agreement, effective for the period of September
23, 1968, through July 31, 1971, expired on the latter date.
On April 7, 1971, in contravention of past practice and the
60-day period specified by the terms of the collective-bar-
gaining agreement , Respondent Local 264 served notice on
Wheeling Electric of its intent to reopen the contract for
further negotiations.
D. The Units Appropriate for Collective Bargaining
Based upon a stipulation of the parties arrived at during
the course of the hearing, the record reflects that, with a
single exception, all of the respective bargaining units re-
viewed above, including the several plants and divisions
owned or operated by Ohio Power, Central Operating's
Sporn plant, and the employees at Wheeling Electric's gen-
erating and transmitting facilities , were separately certified
by the Board as appropriate units for collective bargaining.
The single exception involves the Beech Bottom plant,
owned by Beech Bottom Power Company, Inc., and operat-
ed by Ohio Power, in which the unit was established by
voluntary recognition. The complaint alleges , the parties
have stipulated, and I find that these separate bargaining
units of employees of Ohio Power, Central Operating, and
Wheeling Electric are units appropriate for the purpose of
collective bargaining within the meaning of Section 9(b) of
the Act.
E. The Utility Workers Joint Council
All of the Respondent labor organizations involved in
this proceeding are members, and represented by delegates,
of the Utility Workers Joint Council on the American Elec-
tric Power Properties.' According to the Respondents, the
point council exists for the purpose of promoting unionism
and to provide information and education for its delegates
to transmit back to the local membership. At times material
to this proceeding, William Comer, national representative
of the Respondent Utility Workers Union of America, was
president of the joint council. Robert E. Baker, president of
The joint council includes other members such as locals in Indiana and
Michigan who are not respondents in this proceeding, but who do represent
bargaining units on American Electric Power properties
Respondent Local 138, was vice president of the joint coun-
cil. Comer was the principal spokesman for the Respon-
dents in the 1971 negotiations with Ohio Power , Central
Operating , and Wheeling Electric, and Baker was a princi-
pal participant in the bargaining negotiations with Ohio
Power . The record reveals that the joint council held several
meetings for its delegates prior to the onset of negotiations,
which Baker testified were for the purpose of discussing
various suggestions voiced by the representatives of the lo-
cals for improving provisions in the collective bargaining
agreements , such as pensions , insurance , and working con-
ditions. Baker denied that it was the decision of the joint
council to withhold ratification on offers made for the sepa-
rate bargaining units until similar offers had been received
for all of the units for which the constituent members of the
joint council were certified or recognized . Comer, now re-
tired , did not testify in this proceeding . It may be, as Baker
testified , that the tactic of withholding ratification was not
arrived at as a result of a decision made by the joint council.
I find , nevertheless, that during the 1971 negotiations the
joint council served as an instrumentality of the Respon-
dents in the formulation of the Respondents ' contract de-
mands and the execution of the bargaining tactics which are
here alleged as violations of Section 8(b)(3) of the Act.
F. The Ohio Power Negotiations
As related above, the collective-bargaining agreements
applicable to the employees of Ohio Power at its plants at
Philo, Beech Bottom, Tidd, Kammer, and Cardinal expired
on May 31, 1971,5 and the bargaining negotiations relevant
to this proceeding began with the units at these locations.
With respect to the powerplants, the Respondents and Ohio
Power held five bargaining sessions, each consuming 2 or
more days, and extending over the period from April 4
through June 18, 1971. Leslie P. Scales, personnel director,
was the principal spokesman for Ohio Power at these bar-
gaining sessions , and he was assisted by management repre-
sentatives from the several powerplants involved. G. B.
Hale, a representative of American Electric Power Service
Corporation, was also present at the bargaining sessions,
and participated to some extent in the negotiations. Comer
was the principal spokesman for the Union, and was assist-
ed by Baker and Gene A. Potter, a national staff representa-
tive for the Utility Workers.
At the outset of the first bargaining session on April 6,
Comer handed Scales a copy of the contract demands for
Locals 138, 159, 361, 468, and 478. The demands included
numerous proposals or economic benefits and other terms
and conditions of employment, and included the following
demand:
42(2) All contracts in U.W.U.A. Joint Council,
American Electric Power group to be identical, with
common expiration date. Contracts to include Pension
agreement L.T.D.I. Agreement, Hospitalization and
life insurance agreements plus wage rates.
The first bargaining session of April 6-7 was devoted
largely to review and discussion of the Respondents' de-
mands. At the outset of negotiations Scales observed that
5 All dates recited hereinafter are in 1971 , unless specified to the contrary.
UTILITY WORKERS LOCAL I l l
the Respondents were represented in part by individuals
who were not employees at any of the five plants involved.
Scales mentioned the matter to Comer, and Comer replied
that he had a right to have anyone he wanted on his commit-
tee .6 Scales voiced no objection , but did make clear that he
was bargaining only for the five plants in question. There
was no in-depth discussion of Respondents ' proposal 42(2),
but Scales did repeat his statement that he was responsible
only for the five plants, had no authority to bargain for
Wheeling Electric or Central Operating, and was not at that
time bargaining for the Ohio Power divisions.
The second bargaining session for Ohio Power's five
plants was held on April 19-20. At the beginning of the
meeting Comer asked if Scales was willing to meet and
bargain jointly with Respondent Locals 111 and 116, which
represent separate units for the Tiffin-Findley-Lima and
Canton-Coshocton divisions. Scales refused, stating that the
contracts were separate and distinct and management felt
they should be negotiated separately. Scales replied, "We
are not settling any of our contracts unless we have an
agreement on the other groups. We wanted to carry on a
pleasant atmosphere, but you don't. This is going to be a
rough summer."
At a later stage of the same exchange Scales asked Comer
if the import of his statement quoted above was that the
Respondents had to have an agreement on the divisions,
plants, Wheeling, and Sporn, before they would be willing
to settle . Comer replied , "Yes, that is right ," to which Scales
answered that he was not in a position to make any agree-
ment for Sporn and Wheeling.
During the meeting of April 19-20, there was also a dis-
cussion between the parties concerning the Respondent's
demands for a common termination date . Comer, in dis-
cussing contracts for Sporn and Wheeling, stated that the
Respondents wanted to settle all of the plants by June 1. To
impress his point Scales added:
We would be better off if all of the Utility Workers
would be on the same date . We just mark time from one
month. Think if the Company causes problems on this.
I don't see it. We get screwed one month later. We
could go over to Tanners Creek and bring them in.7
As a part of further discussion on the Respondent's de-
mands, Hale, the representative of American Electric Power
Service Corporation, asked Comer, "Say you reach agree-
ment by 6-1. Are you going to sign it." Comer replied:
Yes, but contingent on the others . Some of these are
Sporn demands and ours . There are also Divisions in-
cluded. The economic offer to this group will be the
same for all of us. These other groups are not signing
unless its going to be the same for all of us . You are not
6 The record reflects that at most of the bargaining sessions relevant to this
proceeding the Respondents were represented , in part , by officials from
locals not involved in those particular negotiations . as well as by delegates
from the joint council . Management officials voiced no objection to the
presence of the "strangers," and there is no contention that the Respondents'
insistence on their presence is an issue in this case . General Electric Company,
173 NLRB 253.
7 Tanners Creek Generating Station is an operation of Indiana & Michigan
Electnc Company, where employees are represented by Local 418 of the
Utility Workers. The contract at this location was scheduled to expire on
November 30, 1971.
233
screwing Sporn on someone else.
At a later juncture in the discussion Hale asked Comer if
his understanding was correct that Comer did not intend to
settle unless all of the locals involved settled . Comer replied,
"No, only on economics. We want to handle the other
things differently ." Hale then interposed the comment that
Scales had agreed to make an offer and Comer stated, "If
the offer is good we 'll vote on it . In 1968 the Company
agreed on some things, but yet at Sporn the Company
backed off and that was the job evaluation . There is one
local around here where the coal handlers were not raised-
why not?"
The fourth bargaining session 8 for the Ohio Power plants
was held on May 20-21. Management had made an offer,
and Hale asked Comer what the Respondents planned to do
about it. Comer replied, "We will probably be meeting with
the Divisions and the Sporn Plant sometimes next week. We
want the same offer for Sporn and Divisions , and we're not
kidding. We will wait until the same is offered."
In response Hale asked, "You mean we can not have a
signed contract by June 1st?" Comer answered that the
Union had always waited in the past to see that the offer was
the same for the divisions, and added , "you will not have a
signed contract until we have the same offer to all. We have
had a problem before ." After some further exchange Scales
commented that there was no use in setting another meeting
for the plants because management had an offer out, and
agreed to set up a meeting for the divisions.
The fifth and final meeting limited to the bargaining units
at Ohio Power's plants was held on June 17-18 , after Ohio
Power and the Respondents had met for bargaining in four
separate and one joint session for the Tiffin -Findley-Lima
and Canton-Coshocton divisions.
Prior to this last bargaining session for the plants on June
17-18, the Respondent 's had submitted the offer made by
Ohio Power to a ratification vote of their combined mem-
bership , and on June 10, Ohio Power was notified by Comer
that the offer had been rejected by a vote of 869 to 159. At
the June 17-18 meeting, which was called by Federal Medi-
ation and Conciliation Service , the parties met separately
with the mediator and at a later joint meeting Comer pre-
sented a list of demands which he characterized as being
very important to the Respondents, and which had to be
met if there was to be a settlement . Among these demands
was Comer 's statement that the Respondents wanted the
plant contracts moved up to July 1, and he demanded that
same effective date for the Wheeling Electric contract.
Comer conceded that Scales had no authority with respect
to Wheeling , which Scales acknowledged and suggested that
Wheeling Electric be kept out of the discussion. Relating to
Comer's comments on issues necessary for settlement,
Scales asked if Ohio Power was going to receive demands
on "equally burning issues" from the divisions . Comer re-
plied that this was probable , and explained that certain
economic items such as money and hospitalization would be
uniform , but there were other issues pertaining to the divi-
sions and line groups which would be different . Hale asked
if the Respondents had turned down the offer made by Ohio
6 There was a third bargaining session for these units on May 12- 14, but
the record contains no evidence of what transpired or resulted from the 3-day
meeting.
234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Power for the plants on May 20-21 on a joint basis and
Comer confirmed that this was so.
One of the prime issues in the 1971 negotiations between
the parties was a provision for interplant maintenance,
sometimes referred to in the record as traveling mainte-
nance . A discussion on this issue was had at the meeting of
June 17-18, with particular emphasis on interplant mainte-
nance between the six powerplants owned and operated by
Ohio Power. Comer stated that there was a similar request
for interplant maintenance involving the Sporn plant, that
the offer on this issue made by Sporn was obnoxious, and
there would be no vote on the offer on interplant mainte-
nance so long as it was not cleared up with Sporn.
During the course of the June 17-18 bargaining session,
Scales made an offer to the Respondents, which he charac-
terized as Ohio Power's last-best offer. In response, Comer
stated that management had better give the same offer to
the other people, that is divisions Sporn and Wheeling, or
Ohio Power would not get a contract. It appears from the
record that the offer was submitted for ratification to the
combined memberships of all the locals who are parties
respondent in this proceeding. Prior to the offer, however,
bargaining was in progress for divisions Sporn and Wheel-
ing, and the record is not clear whether the rejections by the
combined membership was limited to the offer for the Ohio
Power plants, or whether the membership also balloted on
offers made for other bargaining units.
The contracts for Respondent Locals Ill and 116, the
Tiffin-Findley-Lima and Canton-Coshocton divisions, ex-
pired on June 30, 1971. Bargaining began on May 6 for
Tiffin-Findley-Lima, and continued the following day with
a separate session for the Canton-Coshocton division. Addi-
tional bargaining sessions for the separate divisions were
conducted on May 27 and 28, but the following two ses-
sions , June 7 and 22, were joint sessions , and the final ses-
sion on July 16 included both of the divisions, as well as the
six bargaining units at Ohio Power's generating plants.
According to the testimony of Personnel Director Scales,
he met with Comer, Potter, and the representatives of the
Canton-Coshocton bargaining unit on May 7,9 and the Re-
spondents ' representatives served Ohio Power with their
contract demands. The demands, with consideration for
differences in functions and conditions of employment be-
tween division and plant employees , were essentially similar
to those made by the Respondents for Ohio Power's plants,
and included the demand that all contracts for the UWUA
Joint Council, American Electric Power Group, be identi-
cal, with a common expiration date. During the course of
the May 7 meeting the Respondents' representatives in-
formed Scales that the contract demands for the Tiffin-
Findley-Lima division would be the same as those for Can-
ton-Coshocton.
On May 27, the parties met to bargain for the Tiffin-
Findley-Lima division and a discussion ensued over the
Respondents ' demand for a common expiration date . Scales
asked Potter what the joint council was, and Potter replied
that it was comprised of Ohio Power's 6 plants, its divisions,
the Sporn plant, and Wheeling Electric. Scales stated that
9 The record contains no evidence of what transpired at the May 6 bargain-
ing session for the Tiffin-Findley-Lima division.
he had no authority to negotiate for either Wheeling or
Sporn, and was present only to negotiate for the Tiffin-
Findley-Lima division. Comer replied, "We want a com-
mon expiration date. You know we'll just wait until the
Divisions ' time comes before we settle the Plants and they'll
end up getting the same offer . You know this is what we did
in the 1968 strike."
At this juncture Scales asked Comer if he wasn 't skirting
pretty close around the edges of an unfair labor practice.
Comer replied, "Hale about fell off his chair when I told
him this at the last meeting , but you know this is a fact."
Scales again accused Comer of bad -faith bargaining, and
Comer responded that it was management that was drag-
ging its feet, and that Ohio Power had not even made an
offer.
The parties met on the following day, May 28, for the
Canton-Coshocton unit. At the outset of the meeting Scales
stated that Ohio Power was prepared , contingent upon set-
tling the contracts , to make the same economic offer for
Canton-Coshocton as for the Tiffin-Findley-Lima division
and the plants . There had been a prior tentative agreement
to meet for bargaining for Tiffin-Findley-Lima on June 4,
but Scales suggested that , in the light of the Respondents'
demands for simultaneous offers and settlement , agreement
be reached for a meeting on June 17 and 18, allowing 1 day
for each division . Scales also asked for an extension of the
contract, which had previously been extended, and Comer
replied , "This extension that you want , we won 't buy it. We
need to settle this, and its something they will accept."
Scales interjected that management thought all the Respon-
dents wanted was a commitment, to which Comer replied,
"They are not voting until we get a firm offer on the table."
Scales , referring to statements made by Comer in earlier
negotiations , said "You said you were hanging firm on
Wheeling and Sporn . . . their contract expires on July 1st "
Comer immediately denied that this was what the Respon-
dents were doing, and accused Scales of trying to hang the
negotiations up on the inclement weather clause. In re-
sponse Scales stated that it was the Respondents who had
interjected the inclement weather clause as a new issue,
when management was trying to settle the negotiations.
Scales also reminded Comer that he had asked for the same
offer for the divisions as Ohio Power had made for the
plants, and had also stated that Wheeling and Sporn wanted
the same offer . Scales stated that he couldn 't make any offer
for Wheeling and Sporn, and that it was up to Comer to
arrange a meeting with these companies . Scales then asked,
"Why can't the plants vote on the offer?" Comer replied:
They do whatever they want. It's a mistake to set up
a meeting on the 17th and 18th . If the plants vote now,
it would be nip and tuck. They are not committing to
anything with the Divisions hanging.
After some side discussions between the respective com-
mittees, Scales told Comer that what he was proposing was
in violation of the National Labor Relations Act. Comer
replied that the members would vote , but Scales had not
given the Respondents all the language on the plants, and,
contrary to Scales' accusation , it was management , not the
unions , who were violating the Act. Scales repeated that he
was not authorized to make any offer for Wheeling and
Sporn, and Comer countered:
UTILITY WORKERS LOCAL I l l
All you have to do is get the same offer on the table
and work out the other things . This 17th and 18th
meeting is silly. There are a number of things yet we've
got to discuss . Then let's get on with it.
Scales responded that Comer had requested the same
offer for the divisions as Ohio Power had made for the
plants , and added, "Now, leaving Sporn and Wheeling out
of it, and just sticking with Ohio Power, we are trying to
resolve these requests of yours." Comer answered, "I don't
believe I said that if we had the same economic package we
would be off and running."
At this juncture Hale interjected with a question posed to
Comer, "Are you saying that before you will vote on my
offer, all the offers on the UWUA Council must be on the
table?" Comer denied that this had been his statement, and
accused Hale of trying to get him in trouble . Comer added,
however, "We want a settlement , and there are certain items
or things we have to have before we 'll agree." Hale com-
mented that he failed to understand Comer's tactics, that
sometimes he wanted to hurry and sometimes he wanted to
drag his feet . Hale added that management understood that
the Respondents would allow the power plants to vote on
the offer if Ohio Power made the same offer for the divi-
sions , but Comer was now saying the plants would not vote.
Comer answered:
You get the offer on the table to the Divisions , that's
all you have to worry about-so now you know what
we want. If the Company wants a contract , you have
to give us something on these requests . We have some
companies which have more money on the table than
what you have offered . We don 't want a strike. No one
does, and Munger doesn't either.
Later during the session , Hale referred to the indication
stated by Comer that the plants might turn the offer down.
Comer replied that the plants had not received all of the
items they wanted when the Respondents agreed they
would vote . Hale asked when the vote would take place and
Comer replied the vote would take place when the offer was
on the table , and that if Ohio Power made an offer for the
divisions by June 4, there would be a vote by June 11. Hale
inquired , "Excluding Wheeling and Sporn, are you saying
that , if we have an offer on the table by the 4th, you will vote
before the 11th of June?" Comer answered, "It would be a
good idea if you do this. You have some influence on these
people ." Shortly thereafter , however, in the context of a
discussion between Hale and Comer concerning a meeting
scheduled for Wheeling for June 3 , Comer stated:
If Wheeling and Sporn got the offer in time, then
maybe they' ll all vote the offer down. We propose that
we get a mutual date so that we can discuss this offer
at a meeting . You could have the offers out so that we
can all vote on it together . We've done this in the past.
Some discussion followed about the past practices of
pooled voting on ratification , and Comer insisted that this
had been the practice even before 1968. In answer , however,
to Hale's inquiry, Comer acknowledged his belief that
Wheeling had not been included in this practice.
Later in the May 28 bargaining session there was a discus-
sion of a joint meeting for the two divisions , and Scales
apparently agreed . Scales also agreed that he would make
an additional offer for the plants by June 7, if the Respon-
235
dents would conduct a ratification vote by June 11. Comer
agreed , stating, "That's right . Unless there are some prob-
lems at Sporn and Wheeling, you will be having the offer
turned down . We're all voting together."
Hale replied to Comer's comment by stating that Comer
was again saying there was a difference . Comer denied the
accusation , but Hale insisted that Comer was forcing them
to go along with his tactics , and that Ohio Power objected
to what was going on. Keller, the president of Respondent
Local 116, answered by stating, "Well, we 're just waiting for
30 days on this anyways , so what makes the difference?"
Comer repeated the inquiry as to whether, if Ohio Power
made an offer by June 7, a ratification vote would be con-
ducted in the Ohio Power membership by June 11 . Someone
else from management asked if Ohio Power's offer would be
recommended by the Respondents to the membership, ex-
cluding Wheeling and Sporn . Potter replied that the ques-
tion had been asked before , and that the Respondents
would not make any recommendation for or against ap-
proval . Hawkins , the division manager for Ohio Power's
Canton division , asked , "Are we being governed by Sporn
and Wheeling?" Keller of Respondent Local 116 replied,
"We are not going to say either way . You know we can
influence them."
As Scales had agreed , the parties met for a joint bargain-
ing session for the Tiffin-Findley -Lima and Canton-Cosh-
octon divisions on June 7 . The record is extremely sketchy
as to what transpired at the meeting , except that Ohio Power
was again reminded that the contract offer would have to
be the same for "everyone ," or it would go down the drain
and the offer would be rejected.
The second joint meeting for the divisions was held on
June 22, and the meeting was called by Federal Mediation
and Conciliation Service . According to the testimony of
Scales , it was either at this meeting, or at the prior meeting
with Tiffin-Findley-Lima division on May 27 , that he asked
Keller of Respondent Local 116 about how the ratification
vote was to be conducted . Scales asked , if Ohio Power made
an economic offer to the divisions identical to that made to
the plants , whether the offer to the divisions would be sub-
ject to a separate ratification vote . Keller replied that the
offers would be voted on separately , but the ballots would
be pooled for counting . There is no other evidence in the
record concerning the June 22 joint bargaining session.
The final bargaining session for the Ohio Power opera-
tions was held on July 16, and included the bargaining
representatives for both divisions , as well as for Ohio
Power's generating plants . The meeting was called by Fed-
eral Mediation and Conciliation Service , and separate med-
iators were present for the plants and the divisions. The
mediators met first with the Respondents ' representatives,
including representatives for the Sporn and Wheeling lo-
cals, and then met with Ohio Power . In a subsequent meet-
ing limited to the mediator , Potter , Comer , Scales , and Hale,
Ohio Power made a new offer of an additional 5 cents per
hour applicable to the plants and both divisions, to be effec-
tive January 1, 1972. In response, Comer stated that the
offer sounded good, but the same offer had better be given
to Wheeling and Sporn , or the offer would "go down the
drain." Comer also asked Hale if he was going to set up
meetings with Wheeling and Sporn , and apparently Hale
236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
agreed to comply with Comer's request. A few days later
Comer informed Scales by telephone that the offer made by
Ohio Power had been accepted by a vote of 700 plus to 200
plus.10
G. The Central Operating Negotiations
While Ohio Power Company was negotiating for its
plants and divisions, the Respondent's were also negotiating
with Central Operating and Wheeling Electric. The Central
Operating contract for its Sporn plant expired on June 30,
and negotiations were undertaken nearly 60 days before the
expiration date. The parties met in bargaining sessions on
five different occasions extending over the period from May
5 through July 19. A final meeting was held on July 22 to
memorialize the agreement reached and ratified by the Re-
spondents' membership. John F. Larew, personnel director
for Appalachian Power Company, was the principal spokes-
man for management in the Sporn negotiations and, as with
Ohio Power, Comer was the principal spokesman for the
Respondents.
At the first bargaining session on May 5, the Respondents
served Central Operating with their contract demands. The
Respondents' proposals, entitled "Contract Demands 1971
Locals 138, 159, 468, 478, 426," contained essentially the
same provisions contained in the demands served on Ohio
Power, and included the same demand with respect to iden-
tical contracts and a common expiration date for all U.W.
U.A. Joint Council, A.E.P. bargaining agreements.
At the outset of the May 5 meeting , Larew stated that he
was present to negotiate only for the Sporn plant, and asked
the Respondent's representatives why other local unions
were named in the contract demands. Comer agreed to
scratch out reference to any locals except Respondent Local
426, the certified bargaining agent at the Sporn plant. Larew
also inquired about the reference to the joint council in the
Respondents' demands for identical contracts, and Comer
agreed to strike the reference. Larew also questioned the
inclusion in the Respondents' demands of provisions relat-
ing to job evaluation, dues deduction, an accident investi-
gating committee, and a maintenance -A classification,
none of which could be an issue at the Sporn plant. Comer
agreed to strike all of these proposals.
The Respondents and the Sporn officials met for a second
bargaining session on June 1. The parties reviewed the Re-
spondents' demands item by item, and toward the conclu-
sion of the meeting Mr. Searles, the president of
Respondent Local 426, asked the Company for an offer to
be presented at the next meeting . Searles explained that the
Respondents wanted the Ohio Power offer, including the
traveling maintenance provision, so that they could be as-
sured of a maximum wage offer. Comer repeated that the
10 As in so many other respects, the record evidence is insufficient to make
any meaningful determination as to precisely how the several ratification
votes were conducted. Some evidence indicates that the employees in all units
voted in a block, while other evidence reflects that the units voted separately,
and the ballots were pooled for counting. On or about July 10, the Respon-
dents conducted a strike vote, and the result was reported to Ohio Power as
7-3 in favor of strike authonzation, indicating that each unit voted sepa-
rately, but the result was determined on a composite of units, as opposed to
actual votes of the members
Respondents wanted the Ohio Power offer, and the Compa-
ny agreed that they would try to have an offer ready by the
next meeting.
Central Operating and the Respondents met next on June
8 and, as previously agreed, the Company presented its
offer. After some discussion Comer announced that the
Respondents would vote on the proposal. The company
representatives requested Searles to inform them on how the
Sporn employees voted, but before Searles could reply,
Comer stated that Searles wouldn't know because all of the
membership was going to vote at the same time . Subse-
quently a representative of Central Operating was informed
that the membership had rejected the offer by a vote of 869
to 159. Searles , who reported the result, was asked how the
Sporn local voted, and he replied that he didn't know, and
wouldn't tell if he did know.
The fourth bargaining session for the Sporn plant was
conducted on June 23. Just prior to the beginning of the
meeting the manager of the Sporn plant handed Larew a
notice which had been posted on the plant bulletin board.
The notice stated:
-ATTENTION ALL MEMBERS OF LOCAL 426••
VOTING ON THE LATEST PROPOSALS MADE BY
THE COMPANY TO LOCAL 426 WILL TAKE PLACE
FRIDAY, JUNE 25, 1971
VOTING WILL BE AT THE COMPANY FIREHOUSE FROM
700AM UNTIL43OPM
IT IS THE UNANIMOUS RECOMMENDATION OF THE
COUNCIL DELEGATES THAT THE PROPOSALS BEING
VOTED ON BE TURNED DOWN
After the meeting was underway, Larew drew attention to
the notice and stated that apparently there was no use in
meeting, adding "You have turned it down without getting
an offer. Everybody has got a closed mind, and you are
letting the Council, whoever that is, tell you what to do for
this local." Comer admitted, "The notice might have been
a little premature." Searles, who admitted to posting the
notice as a joint council delegate, added, "Well, that doesn't
mean we wouldn't take the offer if it was a hell of a big
offer." Larew asked if the Respondents wanted the offer
and Searles replied, "Well, that is what we are here for." On
or about June 25, Searles called Central Operating and ad-
vised that the Company's offer had been rejected by vote of
747 to 221.
The fifth and final bargaining session between the Re-
spondents and Central Operating was held on July 19, after
Comer had informed Ohio Power that the latter Company's
offer looked good, but would "go down the drain" unless
the same offer was made to Sporn and Wheeling. At the July
19 meeting Central Operating came prepared to make a
further offer. Before the offer was made, however, Larew
read a prepared statement in which he protested the Re-
spondents' tactics in tying Central Operating negotiations in
with Ohio Power. Larew talked about the joint ratification
votes, the joint council, and informed the Respondents that
Central Operating did not propose to tie their settlement in
UTILITY WORKERS LOCAL 111
with settlements by other unions with which Local 426
might be affiliated. Larew added that the Company was
open minded on a settlement, but protested what was going
on. Larew then gave the Company's offer.
In response to Larew's statement Comer stated that it was
none of the Company's "goddamn business" how the Re-
spondents voted, and they would pool their votes if they
wanted to. Comer continued by stating that how the Unions
conducted their affairs was none of the Company's busi-
ness, and the Company's offer was a miserable offer. Comer
said that the Respondents were going to have to strike to get
a settlement, and that Central Operating had better get the
traveling maintenance demand straightened out to the satis-
faction of the Sporn local and the Ohio locals. Oomer re-
peated, "You are forcing us to strike to get a settlement,"
and accused Larew of personally causing the strike. With
reference to the strike Comer threatened that if a strike
occurred it would be "a hell of a long one," and would take
a lot more to settle than in 1968. Comer also repeated, with
reference to the traveling maintenance demand; that he
wanted the plants spelled out where Sporn employees might
be sent, and informed the Company that if the traveling
maintenance issue was not straightened out, not only to the
satisfaction of the Sporn local, but to the satisfaction of the
locals in Ohio, the Central Operating offer was no good.
Notwithstanding that it operates one plant, Central Oper-
ating agreed to a traveling maintenance provision; specify-
ing the Ohio Power plants to which its employees could
travel. On July 21, Central Operating was advised that the
Respondents' membership had approved its offer of July 19,
by a vote of 724 to 403.
H. The Wheeling Electric Negotiations
The prior contract for Wheeling Electric, where the em-
ployees are represented by Respondent Local 264s expired
on July 31, 1971. As reviewed above, on April 7, well in
advance of the 60-day period specified in the expiring con-
tract, Respondent Local 264 served notice of its intent to
reopen the contract for further negotiations. Prior to the
expiration date of the old agreement, the parties met for
bargaining negotiations on four occasions , extending over
the period from June 3 through July 20.
At the beginning of the June 3 meeting, the Respondents
served management with a copy of their contract demands
which, like the demands made on Ohio Power and Central
Operating, contained a provision requiring that all contracts
in the Utility Workers Union of America, Joint Council
A.E.P. group be identical, with a common expiration date.
The first bargaining session with Wheeling Electric was de-
voted mainly to a review of the Respondents' demands.
After a limited number of the demands had been reviewed,
Comer stated that the Respondents would like to have an
offer on the table everywhere by Tuesday, June 8. By way
of explanation for this request, Comer stated that Local 264
expected the same economic and contractual package of-
fered to the Ohio Power locals. Later in the bargaining
session Potter repeated the same demand. After some fur-
ther discussion, Comer asked if June 9 would be a satisfac-
tory date for an offer from the Company, and Richard L.
Brookes , personnel manager and principal spokesman for
237
Wheeling Electric , agreed to schedule a meeting for that
day. Before the conclusion of the June 3 meeting there was
also a discussion of the Respondents 'demand for a common
expiration date , but the record contains none of the details.
The second bargaining session was held on June 9, as
previously agreed . At the beginning of the meeting Brookes
announced that the Company was prepared to make an
offer, but first wanted to discuss some other issues, such as
the classification of a meter foreman . The Respondents
wanted this classification reduced back and a change in
scheduling, to which management objected . Comer stated
that Brookes would get full credit for upsetting the apple
cart and throwing a monkey wrench in the negotiations. The
Respondents also informed the Company that the demand
with respect to scheduling the meter men was a demand of
Local 264, and not of the Joint Council.
Before the conclusion of the June 9 meeting, Wheeling
made a contract offer and Brookes asked the president of
Local 264 if he would report the outcome of the ratification
vote which the Company anticipated would be conducted
on the following Friday. Comer said that this would be
impossible because the ballots would not be counted until
Saturday night . On Saturday evening, however, the Presi-
dent of Local 264 reported to Brookes that the Company's
offer had been rejected by a vote of about 800 to 200.
A further discussion of the ratification vote was had at the
beginning of the next bargaining session on June 24.
Brookes asked the president of Local 264 if he could supply
the Wheeling Electric vote. The Local President replied that
it had been about 84 percent against acceptance of the
Company's proposal, and Comer interjected the comment,
"We are not telling your people how to run your business,
and you are not telling us. We are all voting together on
these proposals."
Other than the above, the record contains very little evi-
dence as to what, if anything, transpired at the June 24
bargaining session . Potter reiterated the Respondent's de-
mands for a common expiration date for all contracts, and
specified that the new contract should be for a 34-month
term.
On July 16, Brookes received a telephone call through
Hale from Comer , who asked for a meeting to be arranged
for July 19 or 20, to fit with Comer's schedule . Brookes
complied with Comer's request and the parties met for the
fourth and final bargaining session on July 20. At the begin-
ning of the July 20 meeting, Comer asked Brookes to get an
offer on the table, so that the Locals could vote on the
following Wednesday and the ballots could be counted at
Cambridge, Ohio, on the evening of the same day. The
Company made its offer, and the offer was subsequently
accepted by the Respondents. The offer made by Wheeling
Electric and accepted by the Respondents consisted of an
additional wage offer of 5 cents per hour effective January
1, 1972, a 2-year rather than a 3-year contract, and a provi-
sion for the supply of hand tools based on an equivalent
provision in the Ohio Power contracts.
On cross-examination Brookes was questioned by coun-
sel for the Respondent as to whether Brookes confined him-
self in negotiations to matters having to do only with
Wheeling Electric. In response Brookes testified that this
was not so, and that based on the Respondents' demands
238 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Comer's remarks made during the course of the negoti-
ations , Wheeling Electric fully understood that it would be
required to accept those items dealt with in the Ohio Power
locals, before bargaining could take place on local demands.
Counsel for the Respondent also questioned Brookes as to
whether, as spokesman for Wheeling Electric, he was op-
posed to accepting those issues previously consummated in
the Ohio Power negotiations . In response Brookes testified
that the Respondent's demands were not actively opposed,
because Wheeling Electric had been apprised in advance of
what had transpired in the Ohio Power negotiations. As
Brookes testified on direct examination, on the basis of this
prior knowledge he fully understood what the Respondents
were demanding when their representatives stated during
the course of the Wheeling Electric negotiations, that there
had to be an offer "everywhere."
I. The Respondents ' Defenses
In support of the plea that they have not violated the Act,
the Respondents elicited testimony from three witnesses.
Robert Baker and Gene Potter, both of whom were also
called as witnesses by the General Counsel,) t testified gener-
ally to the 1971 negotiations. Baker and Potter also testified
to past negotiations between the Respondents and Ohio
Electric, Central Operating, and Wheeling Electric, as well
as to their knowledge concerning the ownership and control
by American Electric Power of the charging Employers. As
witnesses for the Respondent and the General Counsel Bak-
er and Potter evinced less than an adequate recollection of
events and conversations pertaining to the bargaining nego-
tiations. To the limited extent the testimony of Baker and
Potter varies on relevant issues from the testimony of the
witnesses Scales, Larew, and Brookes, I credit the latter
individuals.
The Respondents also called as their witness William R.
Munger, executive vice president, and formerly regional
director of region 3 of the Utility Workers Union of Ameri-
ca. Munger did not participate directly in the 1971 bargain-
ing negotiations with the charging Employers, but he did
have some correspondence with Donald Cook, president of
American Electric Power and its several subsidiaries in-
volved in this proceeding. Munger testified that he was ap-
prised by his subordinates of the impasse reached in the
negotiations, and corresponded with Cook pertaining to a
request for strike authorization and the inadequacies of the
offers made to the Respondents on wages and other eco-
nomic benefits. For the most part, however, Munger's testi-
mony was directed to past negotiations between the
Respondents and the charging Employers, with particular
emphasis on the settlement of the 1968 contract dispute,
"I I find no merit in the Respondents ' contention that they were prejudiced
by the denial of their objection to the General Counsel 's interrogation of
Baker and Potter as "his" witnesses on direct examination. The trials of
unfair labor practice cases are civil proceedings , and Sec 10(b) of the Act
requires that "any such proceeding shall, so far as practicable , be conducted
in accordance with the rules of evidence applicable in the district courts of
the United States under the rules of civil procedure for the district courts of
the United States ." Rule 43 (b) of the Rules of Civil Procedure For The
United States District Courts provides for the examination of adverse parties,
and their officer, directors , or managing agents
which was attended by an 80 -day strike . The thrust of
Munger's testimony was to support the Respondents' con-
tention that joint bargaining in the several units of employ-
ees of Ohio Power , Central Operating, and Wheeling
Electric is an established historical practice , and that their
tactics in the 1971 negotiations constituted a mere continua-
tion of the practice.
The duty imposed on employers and labor organizations
by the provisions of the National Labor Relations Act to
bargain collectively is predicated on the cardinal principle
that the existing unit , whether established by certification or
voluntary recognition , fixes the periphery of the bargaining
obligation . An employer and a union may voluntarily agree
to merge separate bargaining units for the purposes of con-
tract negotiations , but the enlargement of bargaining units
is not a mandatory sub ject for collective bargaining under
the terms of the Act . 12 Neither an employer nor a union is
free to insist, as a condition of reaching an agreement in one
unit , that the negotiations also include other units , or that
the terms negotiated in the first unit be extended to other
units.13
The Respondents do not contest the validity and efficacy
of the legal principles reviewed above , but they assert that
the evidence of their acts and conduct during the 1971
negotiations with Ohio Power , Central Operating, and
Wheeling Electric fails to sustain the allegation that they
have violated Section 8 (b)(3) of the Act . In support of this
assertion the Respondents have advanced a variety of con-
tentions and arguments.
It is the Respondents ' contention that the tactics they
utilized during the 1971 contract negotiations were permis-
sible because the charging employers are subsidiaries of
American Electric Power Company , and the latter entity
has held itself out as a single employer . In support of this
contention the Respondents rely on the evidence that Ohio
Power, Central Operating , Wheeling Electric , Beech Bot-
tom Power Company , and Appalachian Power Company
are all owned , directly or indirectly , and controlled by
American Electric Power, and that Donald Cook is the
president of both the parent company and its subsidiaries.
As a corollary to this single -employer contention , the Re-
spondent also argues that the record evidence supports the
finding that in all negotiations prior to 1971, the charging
Employers , through the auspices of American Electric Pow-
er, bargained as a single entity. In particular , the Respon-
dents' rely on the settlement of the contract dispute and the
strike in 1968 , when Munger and an official of American
Electric Power arranged a settlement applicable to all the
plants and divisions of the Employers who are parties to this
proceeding . The Respondents also rely on the evidence that
Hale, of the American Electric Power Service Corporation,
attended all or most of the 1971 bargaining meetings, and
participated in the negotiations . As a further corollary of
their single-employer contention , the Respondents refer to
ii Cf. Allied Chemical Workers v Pittsburgh Plate Glass Co, 404 U.S. 157,
164; N L R B v Wooster Div of Borg-Warner Corp, 356 U S 342.
it Standard Oil Co v N L R B, 332 F 2d 40, 45 (C.A 6, 1963); Douds v
International Longshoresmen 's Association, 241 F 2d 278 (C A 2, 1957), N L.
R B v South Atlantic de Gulf Coast Longshoresmen 's Association , 443 F 2d 218
(C.A. 5, 1971 ) See also United Mine Workers v Pennington , 381 U S 657,
666-667.
UTILITY WORKERS LOCAL 111
the record evidence reflecting that employees in all the bar-
gaining units have historically enjoyed some common bene-
fits , such as pensions and insurance coverage ; that there is
a distinct similarity in the work functions performed by
employees in like classification in all of the units ; and that
there is some interchange of employees between the several
employers , as exemplified by the traveling maintenance
provisions in the contracts.
I find the Respondents ' contention on the single-employ-
er entity , with its corollary arguments on the history of
negotiations , and the community of interest enjoyed by the
employees in the several units , as lacking in merit. The
whole thrust of this contention is that a single unit com-
prised of all the employees of Ohio Power, in its several
plants and divisions , plus the employees of Central Operat-
ing and Wheeling Electric could constitute an appropriate
bargaining unit . The singular fact is , as the Respondents
concede , that the several units involved here were separately
certified or recognized , and are , accordingly, the appropri-
ate separate units for collective bargaining . The Respon-
dents could , with the approval of the employers , merge the
several units for the bargaining process , or they might, by
recourse to other procedures , consolidate the units with
Board approval . They may not , however , force the merger
of the separate units by insisting , as a condition of reaching
an agreement , that the employers bargain jointly , or extend
the terms negotiated for the individual units to the other
units.
Where the bargaining units are separately certified or
recognized , the Respondents are afforded no defense to
their unlawful attempts to merge the units by the evidence
of common ownership and control . " Nor are the Respon-
dents provided a defense by the evidence of the centraliza-
tion of certain employee benefit plans , or the evidence of a
community of interest among the employees in the several
units . 15 Similarly, the Respondents ' acts and conduct can
not be defended on the evidence that past contract disputes
have been settled on a uniform basis for all of the units, or
the evidence that officials of the parent company have par-
ticipated in the bargaining and settlement agreements. The
Board does not find a merger in the absence of unmistaka-
ble evidence that the parties mutually agreed to extinguish
the separateness of the previously recognized or certified
units . 16 Centralized bargaining for separate units, and the
similarity of certain contractual benefits , is insufficient evi-
dence to warrant a finding that the parties have mutually
agreed to merge established separate units.17
As a further line of defense the Respondents contend that
their acts, conduct, demands , and tactics during the 1971
negotiations are not violations of the Act . More explicitly,
the Respondents argue that on the basis of Board and court
precedent it was not illegal for them to demand and bargain
for identical contracts , with a common expiration date, ap-
plicable to all the units . The Respondents also argue, again
14 AFL-CIO Joint Negotiating Committee (Phelps Dodge Corp ), 184 N LRB
976
13 Shell Oil Co, 194 NLRB 988
6 Remington Office Machines, 158 NLRB 994.
7 Remington Office Machines, supra, Wyandotte Chemicals Corporation,
116 NLRB 972 , 974-975.
239
on the basis of precedent , that the matter of ratification of
contract offers and the conduct of strike votes are the singu-
lar concerns of the bargaining representative , not the con-
cern of the employees or the Board , and can not be found
as violations of the Act . It is established that uniformity of
labor standards is a legitimate aim of labor organizations,
and "a union may adopt a uniform wage policy and seek
vigorously to implement it.18 It is not a violation of the Act
for a union to rely on a consummated contract as the pat-
tern for its demands for other contracts , nor is it a violation
for a union to vigorously seek common termination dates
for contracts covering separate units where it enjoys the
bargaining rights . It is also conceded , as the Respondents
argue , that joint voting among the employers in separate
units , or the pooling of ratification votes, are not, per se,
violations of the Act.19 But the gravamen of the conduct
complained of here is not that the Respondents sought by
legitimate means to obtain common contracts with common
expiration dates , or that they legitimately used their own
internal procedures to authorize a strike or reject offers
made by the employers through submission to ratification
by the employees . What is complained of is that the Respon-
dents sought to force the contract terms negotiated for one
unit upon the other units, by delaying and impeding negoti-
ations and withholding final settlement until their unlawful
object of unit merger had been accomplished . This conduct
is not excused by the evidence that the Respondents used
some otherwise lawful activities to accomplish the object.
"Activities in isolation may be wholly innocent , lawful and
`protected' by the Act , but that ought not to bar the Board
from finding , if the record justifies it, that the isolated parts
are bound together as the parts of a single plan. . . . The
plan may make the parts unlawful . " 20 Stated otherwise, a
policy such as uniformity , innocent in and of itself, can in
context become a vital part of an illegal overall pattern of
conduct?'
It is the Respondents ' further contention that it was the
intransigence of management, not the demands of the
unions for common contracts and expiration dates, that
delayed the bargaining and led to an impasse . In support of
this contention the Respondents admit that they had
reached impasse in bargaining with the several Employers
in July, but they argue that the impasse was caused by wage
demands, and broken only when the Employers added 5
cents per hour to their prior offers. There is very little evi-
dence in the record to support a finding that the wages or
other economic benefits were responsible for the impasse. If
wages and economic benefits were a prime consideration in
keeping the parties from reaching an agreement, the Re-
spondents studiously avoided adducing any evidence to this
effect. The record does reflect that the Employers made a
final offer of an additional 5 cents , and that the offer was
subsequently approved by the Respondents . This is not evi-
dence, however, that economic issues caused the impasse, or
that additional offers of money broke the stalemate. When
'a United Mine Workers v. Pennington, supra.
19 United Steelworkers of America, AFL-CIO (Lynchburg Foundry Compa-
ny), 192 NLRB 773
20 N.L R. B v Insurance Agent 's International Union, 361 U.S. 477, 506.
21 N L R B v. General Electric Company, 418 F.2d 736, 760 (C.A. 2, 1969),
cert. denied 397 U.S. 965.
240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ohio Power made its final offer on July 16, for all its plants
and divisions , Comer characterized the offer as sounding
good , but he also warned Ohio Power that the same offer
had better be given to the Sporn plant and Wheeling Elec-
tric, or the offer would go down the drain . As another
example , in the Central Operating negotiations the Respon-
dents , through the delegates to the joint council , recom-
mended that the employees in the Sporn local reject a
further offer from the Company before the offer had been
made . When Central Operating made a final offer on July
19, it was only accepted by the unions on the condition that
the Company agree to a traveling maintenance provision
acceptable to the Ohio locals , as well as the Sporn local.
In its brief the Respondents have placed great reliance on
the decision of the Third Circuit Court of Appeals in the
Phelps Dodge case .22 In my view , the facts relied on by the
court in Phelps Dodge are inapposite to those here , at least
in some substantial part . The court, contrary to the Board,
found no record evidence to support a finding that the
unions never abandoned their objective of companywide
contracts . In support of this finding the court relied on the
evidence that the unions conducted separate negotiations at
each of the company 's units , without discussing the terms
of employment at other units . These are not the facts of this
case . From the outset of negotiations until final agreements
were reached , the Respondents here demanded and insisted
that identical offers had to be made for all of the units, and
threatened that no offer to any individual unit would be
accepted or submitted to ratification until concurrent offers
had been made for all other units.
Whatever the similarities or dissimilarities between the
facts of Phelps Dodge and these cases, I am bound by Board
law, until that law is reversed by the Supreme Court, or the
Board adopts a contrary view.
As a parting arrow for their defenses , the Respondents
argue that , whatever the merits of these cases , contracts with
the charging Employers have now been consummated and
the dispute is moot . I disagree, and reject the argument. The
fact that the charging Employers in these cases have capitu-
lated to the Respondents' bad-faith bargaining tactics and
have knuckled under , at least in major part , to the Respon-
dents ' unlawful designs to merge the separate bargaining
units, is no grounds to withhold either a finding or a remedy.
In large measure the issues presented in these cases involve
the public interest ; and the necessity to protect established
bargaining units against unilateral attack . As the Second
Circuit Court reasoned in a related case : 23
The process of change not permitted by the Act is one
that denies the Board this ultimate control of the bar-
gaining unit and disrupts the bargaining process itself.
This is precisely what occurs when , after the Board has
decided what the appropriate unit is, one party over the
objection of the other demands a change in that unit.
Such a demand interferes with the required bargaining
"with respect to rates of pay, wages , hours and condi-
tions of employment ." in a manner excluded by the
Act.
32 AFL-CIO Joint Negotiating Committee (Phelps Dodge Corp) v N L R B,
459 F 2d 374 (C A 3, 1972)
23 Douds v International Longshoremen 's Association, supra
In summary , I find and conclude that the Respondents
violated Section 8(b)(3) of the Act by insisting , as a condi-
tion of reaching agreement in the separate units , that the
negotiations also include other units , and by withholding
agreements for the separate units until the charging Em-
ployers agreed to submit identical offers for all the units for
which the Respondents are certified or recognized . The pri-
mary object of the Respondents throughout the course of
bargaining with Ohio Power , Central Operating, and
Wheeling Electric was to compel the Employers to engage
in companywide and multicompany bargaining . To accom-
plish this objective the Respondents consistently threatened
to reject all offers for the individual units until common
offers had been received for all units , withheld offers from
ratification , threatened to strike , 24 and manipulated their
internal procedures for strike authorization and contract
ratification to accomplish their ends . Upon the whole re-
cord I find that the conduct of the Respondents in these
respects , and for the stated objective , was not unlike that
condemned by the Board , as affirmed by the Sixth Circuit
Court of Appeals in the Standard Oil case.25 In that case the
unions , acting through the auspices of a joint council, with-
held approval of consummated agreements reached for
three separate bargaining units until the employer reached
agreement on a fourth unit . Here , unlike Standard Oil, the
agreements had not been consummated for some units
while negotiations were still in progress for other units. I
find, however , that the factual difference in the two situa-
tions are relatively immaterial . The impediment to bargain-
ing and the delay in the negotiating process is obtained no
less by withholding consideration on all offers in order to
obtain identical contracts , than by refusing execution on
consummated agreements for the same object . If anything,
the acts and conduct here are a greater impediment to the
bargaining process than those condemned in Standard Oil,
because they result in no bargaining at all.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICE UPON COMMERCE
The activities of the Respondents set forth in section III,
above , occurring in connection with the operation of Ohio
Power , Central Operating, and Wheeling Electric described
in section I, above , have a close , intimate , and substantial
relation to trade , traffic , and commerce among the several
States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V THE REMEDY
Having found that the Respondents have engaged in un-
fair labor practices in violation of Section 8(b)(3) of the
National Labor Relations Act, as amended , I shall recom-
mend that the Respondents , and each of them , be ordered
to cease and desist therefrom and take certain affirmative
actions designed to effectuate the policies and purposes of
the Act.
24 A strike of limited duration did occur at Ohio Power Kammer plant and
picketing at its Mitchell plant, but the record does not reflect the object of
either the strike or the picketing
25 Standard Oil Company v N I. R B, supra
UTILITY WORKERS LOCAL 111 241
CONCLUSIONS OF LAW
1. Ohio Power Company, Central Operating Company,
Wheeling Electric Company, and each of them, are employ-
ers engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Utility Workers Union of America, AFL-CIO, and its
Locals Nos. 111, 116, 138, 159, 264, 361, 426, 468, 478, and
492 are labor organizations within the meaning of Section
2(5) of the Act.
3. The respective collective-bargaining units of Ohio
Power Company, Central Operating Company, and Wheel-
ing Electric Company, for which the Respondents have
been separately certified or recognized, are units appropri-
ate for collective bargaining within the meaning of Section
8(b) of the Act.
4. At all times material herein, the Respondents have
severally represented a majority of the employees in the
separate respective appropriate bargaining units described
above, and have been the separate majority representatives
of the employees in the aforesaid units for the purposes of
collective bargaining within the meaning of Section 9(a) of
the Act.
5. By insisting, over the objections of the employers, and
as a condition of reaching agreements in bargaining for the
separate units, that the negotiations also include all other
units represented by the Respondents and that the terms
negotiated for the separate units be extended to all such
other units, thereby compelling Ohio Power Company, Cen-
tral Operating Company, and Wheeling Electric Company
to bargain in companywide or multicompany units , the Re-
spondents have violated Section 8(b)(3) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record in this proceeding, and pursuant to
Section 10(c) of the Act, I hereby issue the following recom-
mended: 26
ORDER
Respondents Utility Workers Union of America, AFL-
CIO, and its Locals Nos. 111, 116, 138, 159, 264, 361, 426,
468, 478, and 492, and each of them, their officers, agents,
and representatives, shall:
1. Cease and desist from:
(a) Insisting , over the objections of Ohio Power or Cen-
tral Operating Company or Wheeling Elyctnc Company, as
a condition of reaching agreement in the bargaining units
for which they are separately certified or recognized, that
the bargaining negotiations also include other units repre-
sented by local unions which are members of the Utility
Workers Union of America Joint Council, American Elec-
tric Power Group, or insisting that the terms negotiated for
the separate units be extended to all such other units, there-
by compelling Ohio Power Company, Central Operating
Company, Wheeling Electric Company, or any of them, to
bargain in companywide or multicompany units in contra-
vention of the separate appropriate collective-bargaining
units previously certified or recognized.
(b) Withholding agreements, refusing to submit contract
offers for ratification, threatening to strike, or utilizing
strike authorization and contract ratification procedures to
force and compel Ohio Power Company, Central Operating
Company, Wheeling Electric Company, or any of them, to
bargain in companywide or multicompany units in contra-
vention of the separate appropriate collective-bargaining
units previously certified or recognized.
(c) Refusing in any like or related manner to bargain in
good faith with Ohio Power Company, Central Operating
Company, Wheeling Electric Company, or any of said em-
ployers.
2. Take the following affirmative action designed to ef-
fectuate the policies and purposes of the Act:
(a) Post at their respective offices and meeting halls, and
all other places where notices to members are customarily
posted, copies of the notice attached hereto and marked
"Appendix." 27 Copies of said notice, on forms provided by
the Regional Director for Region 8, shall, as to each Re-
spondent, after being signed by its,duly authorized officer
or representative, be posted immediately upon receipt there-
of and maintained for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
their respective members are customarily posted. Reason-
able steps shall be taken by the Respondents to insure that
said notices are not altered, defaced or covered by other
material.
(b) Furnish the Regional Director for Region 8 sufficient
copies of said notice, signed by the appropriate Respon-
dents, for posting by Ohio Power Company, Central Oper-
ating Company, and Wheeling Electric Company, if the
employers are willing, said notices to be posted where no-
tices to their employees are customarily posted.
(c) Notify the Regional Director for Region 8, in writing,
within 20 days of the date of this Order, what steps each
Respondent has taken to comply herewith.
26 In the event no exceptions are filed as provided in Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec . 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
27 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To MEMBERS
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT, over the objections of Ohio Power Com-
pany, Central Operating Company, Wheeling Electric
Company, or any of said employers, insist , as a condi-
tion of reaching agreement in the separate collective
units for which we are certified or recognized, that the
negotiations also include other units represented by
other Local Unions, which are members of the Utility
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Workers of America Joint Council , American Electric
Power Group, and WE WILL NOT insist that the terms
negotiated for the separate units be extended to all
other units thereby compelling Ohio Power Company,
Central Operating Company, Wheeling Electric Com-
pany, or any of said employers , to bargain in company-
wide or multicompany units in contravention of
separate appropriate collective bargaining units previ-
ously certified or recognized.
WE WILL NOT withhold agreements , refuse to submit
contract offers to ratification , threaten to strike , or uti-
lize our strike authorization and contract ratification
procedures to force and compel Ohio Power Company,
Central Operating Company, Wheeling Electric Com-
pany, or any of said employers , to bargain in company-
wide or multicompany units in contravention of the
separate bargaining units previously established by cer-
tification or recognition.
WE WILL NOT in any like or related manner refuse to
bargain in good faith with Ohio Power Company, Cen-
tral Operating Company , Wheeling Electric Company,
or any of said employers.
UTILITY WORKERS UNION OF AMERICA,
AFL-CIO
(Labor Organization)
Dated By
(Representative) (Title)
[Separate signature lines following thereafter for Locals
111, 116, 138, 159, 264, 361, 426, 468, 478, and 492.]
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, 1695
Federal Office Building, 1240 E . 9th Street, Cleveland, Ohio
44199 , Telephone 216-522-3715.