Consumers Power Co.

National Labor Relations Board - Board Decisions

May 5, 1944

56 N.L.R.B. 313 (N.L.R.B. 1944)

I
In the Matter of CONSUMERS POWER COMPANY and INTERNATION AL
BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L., LOCAL UNION B-876
Case No. 7-R-1599.-Decided May 5, 1944
31r., Harold A. Crane field, for the Board. I
Mr. Wm. R. Roberts, of Jackson, Mich., for the Company.
Mr. M. Thomas Ward, of Grand Rapids, Mich., for the AFL.
Maurice Sugar and Ernest Goodman,'by Mr. Ernest Goodman; of
Detroit, Mich., for the CIO.,
Mr. Seymour J. Spelman, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by International Brotherhood of Electri-
cal Workers, A. F. L., Local Union B-876, herein called the AFL,
alleging that a question affecting commerce had arisen concerning the
representation of employees of Consumers Power Company, Jackson,
Michigan, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Charles W. Schneider, Trial Examiner. Said hearing was held at
Detroit, Michigan, on March 7, 1941. The Company, the AFL, and,'
Utility Workers Organizing Committee, CIO, herein called the CIO,
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 reserved ruling
on the motion of the CIO to dismiss the petition on the ground that
(1) the prima facie showing of representation made by the AFL is in-
sufficient, and (2) a contract between the CIO and the Company con--
stitutes a bar to this proceeding. For reasons set forth below, the mo-
tion is hereby -denied. The Trial Examiner's rulings made at the
hearing are free from prejudicial error and are hereby affirmed. All
parties were afforded an opportunity to file briefs with the Board.
56 N. L . R. B., No. 64.
313
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
L THE BUSINESS OF THE COMPANY
The Company stipulated that the findings of the Board in Matter. of
-Consumers Power Company, 9 N. L. R. B. 701, affirmed, 113 F. (2d).
38 (C. C. A. 6), respecting the operations of the Company, be, and they
hereby are, incorporated by reference in the present record. It was fur-
ther stipulated that, except for a substantial diminution in the pro-
duction of gas, the Company is now conducting its business substan-
tially as described in the aforesaid decision. 4
Accordingly, we find that the Company is engaged in commerce
within the meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers, Local Union
B-876, affiliated with the American Federation of, Labor, is a labor
organization admitting to membership employees of the Company.
Utility Workers Organizing Committee , affiliated with the Congress
of Industrial Organizations , is a labor organization admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On September 29, 1943, the AFL notified the Company that it repre-
sented a majority of the employees in the alleged appropriate unit, and
requested recognition as their exclusive representative. The Company
refused the request on the ground that it was under contract with the
CIO and was under a continuing obligation to deal with the CIO as the
representative of the aforesaid employees.
, On December 5, 1942, the Company and the CIO executed a contract,
providing for a term expiring November 1, •1943,, with, automatic re-
newal from year to year thereafter in the absence of a written notice
served by either party upon the other stating a desire to amend or ter-
minate, the agreement, at least 30 days prior to any expiration, date.
This contract also provided that employees who were then or there-
after became members of the CIO, should be required to maintain such
membership; and further provided*fhat employees thereafter-hired
should become union members within 30 days after hiring. On Sep-
tember 14,1943, the CIO notified the Company that it desired to discuss
amendments to the contract. Thereafter, the parties met in bar-
gaining conferences, and on October 28, 1943, they 'signed a new con-
tract, effective November 1, 1943, terminable November 1, 1944, and-
i
k
CONSUMERS, POWER COMPANY - 315
containing substantially the same automatic renewal and union mem-
bership requirements as the 1942 contract.
The CIO contends that this new agreement constitutes a bar to a
present determination of representatives. The contention is with-
out merit, for the AFL asserted its claim prior to the automatic re-
newal date of the 1942 agreement, and prior to the effective date of the
1943 agreement.
A statement of a: Field Examiner of the Board, introduced in evi-
dence. at the hearing, shows that the AFL submitted 641 authorization
cards, of which 602 bore names of employees on the Company's pay
roll of October 1, 1943, which contained the names of 2,019 employees
in the alleged appropriate, unit. Of these 602 cards, 307 were sub
mitted and bore-dates prior to November 1, 1943, the effective date of
the CIO's contract; and 295 were submitted-after November 1. The
CIO contends that the 295 cards submitted after November 1, 1943
should not be considered, since they were not submitted within a rea-
sonable time after the filing of the petition; and that therefore the
AFL has not made-a sufficient prima facie showing'of representation.
However, even if it be assumed that the 295 cards were submitted too
late-for consideration, we find that the 307 cards submitted prior to
November 1, constitute a sufficient showing, in view of the fact that the
Company and the CIO are and have been parties to modified closed-
shop contracts, as described above.
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 National Labor
Relations Act. -1
1
IV. THE APPROPRIATE UNIT
The parties stipulated that the following unit is appropriate : all
the employees of the Company except general and assistant general
foremen, plant supervisors, and other supervisory employees (except
as expressly included below'), office employees, office building janitors
and watchmen, plant watchmen, collectors, connected load inspectors,
electrical, mechanical, and civil engineers, efficiency men, and junior
engineers, draftsmen, surveyors, chemists, architects, temporary em-
ployees hired for specific jobs and for not more than 6 months, part-
time local servicemen, and local servicemen who do not perform
mechanical work in the regular course of employment, and storekeep-
ers with supervisory power who do not ordinarily do mechanical
work; but including outside crew foremen, watchmen other than' those
excluded above, load dispatchers, meter readers and bill distributors,
plant, janitors, and storekeepers other than those excluded above.'
See Matter of The Champion Mach,ne and Forging Lompany, 53 N. L R. B. 934.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
This unit is- the same as that provided for, in the 1942 and. 1943 agree-
ments. Except as discussed below, we are of the opinion, and find,
that the stipulated unit is appropriate for the purposes of collective
bargaining. -
The parties agreed to include outside crew foremen in the unit..
The record shows that the Company employs approximately 60 of
these foremen and that they are in charge of crews comprising,4 to
10 men. They are responsible for the work performed by the men
in their crew and their 'recommendations with respect to the dis-
ciplining of these men are given weight. In two previous decisions,
the Board found these employees of the Company to be supervisors
and excluded, them from the appropriate unit 2' The record shows
that the duties of the outside crew'foremen have not changed in any
manner since our decisions in the aforesaid cases, and We shall there-
fore exclude these employees from the unit.
We find that all the employees of the Company, except general and
assistant general foremen, plant supervisors, and other supervisory
employees, office employees, office building janitors and watchmen,
plant watchmen, collectors, connected load inspectors, electrical, me-
chanical, and civil engineers, efficiency men, and junior engineers,
draftsmen, surveyors, chemists, architects, temporary employees hired
for specific jobs and for not more than 6 months, part-time local serv-
icemen, and local servicemen who do not perform mechanical work
in the regular course of employment, and storekeepers with super-
visory power who do not ordinarily do mechanical work, and outside
crew foremen, ,but including watchmen other than those excluded
above, load" dispatchers, meter readers, and bill distributors, plant
janitors, and storekeepers other than those'excluded above, and ex-
cluding all or any other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
2 of Consumer 's Power Company, 10 N L R. B. 780 ( November 1938) and 25
N L. R B 280 (July 1940). The fact; that in 1942, upon a Stipulation for Certification upon
Consent Election, the Board certified the CIO in the stipulated unit which included outside
crew foremen , does not preclude our finding herein that these employees should be excluded
from the unit , since we made no finding with respect to appropriate unit in the aforesaid
certification.
CONSUMERS POWER COMPANY '317
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations. and - additions set fotth in the
Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act , and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Consumers Power
Company, Jackson, Michigan , an election by secret ballot shall be,
conducted as early as possible , but 'not later than thirty ( 30) days
from the date of this Direction , under the direction and supervision
of the Regional Director for the Seventh Region, acting in this matter
as agent for the National Labor Relations Board and subject to Article,
III, sections 10 and 11, of said Rules and Regulations among the
employees in the unit found appropriate in Section IV, above, who
were employed during the pay-roll period immediately preceding-
the date of this Direction, including employees who did not work
during said pay-roll period because they were ill or on vacation or
temporarily laid off and including employees in the armed forces of
the United States who present themselves in person at the polls, but.
excluding 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
International Brotherhood of Electrical Workers, A. F., L., Local .
Union B-876, or by Utility Workers Organizing Committee , CIO, for
the purposes of collective bargaining , or by neither.