United Mine Workers of America

National Labor Relations Board - Board Decisions

Nov 19, 1952

101 N.L.R.B. 425 (N.L.R.B. 1952)

UNITED MINE WORKERS OF AMERICA 425
ployees from all plants which the amalgamated represented. The
fact that the Petitioner now chooses, in the face of the broad disaffilia-
tion, to limit its representation claim to all but one of these plants,
does not lessen the effect of the disaffiliation. Accordingly, we find
that the Intervenor's contracts with the Employers do not bar the
instant petitions and that a question affecting commerce exists con-
cerning. the representation of employees of the Employer within the
meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act'
4. The following employees of the Employers constitute units appro-
priate for the purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All production and maintenance employees of the Bryant Finishing
Co., Inc., Coventry, Rhode Island, excluding executives, office and
clerical 'employees, guards, professional employees, and all super-
visors as defined in the amended Act.
All production and maintenance employees of the Pawtuxet Valley
Dyeing Co., Inc., West.Warwick, Rhode Island, excluding executives,
office and clerical employees, guards, professional employees, and all
supervisors as defined in the amended Act.
All. production and maintenance employees of the Thies Dyeing'
Mills, Inc., West Warwick, Rhode Island, including receiving and
shipping clerks but excluding general office help, foremen, heads of
departments, guards, and all supervisors as defined in the amended
Act.
All production and maintenance employees of the George E.
Mousley Company, Inc., and Millburn Mills, Inc., West Warwick,
Rhode Island, excluding executives, supervisors, office clerical em-
ployees, professional employees, and all supervisors as defined in the
amended Act.
[Text of Direction of Elections omitted from publication in this
volume.]
UNITED MINE WORKERS OF AMERICA, LOCAL UNION 12050, DISTRICT 50
and EQUITABLE GAS COMPANY. Case No. 6-CD-15. November 19,
19,152
Decision and Determination of Dispute
STATEMENT OF THE CASE
This proceeding arises under Section 10 (k) of the Act, as amended
by the Labor Management Relations Act, 1947, which provides that
4 See Wade Manufacturing Company, 100 NLRB 1135 , and cases cited therein. Cf.
J. J. Tourek Manufacturing Co., 90 NLRB 5; Barker and Williamson , Inc., 97 NLRB 562;
Telex, Inc., 90 NLRB 202; Trio Industries, Inc., 97 NLRB 1146.
101 NLRB No. 99.
426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"whenever it is charged that any person has engaged in an unfair labor
practice within the meaning of paragraph 4 (d) of section 8 (b), the
Board is empowered and directed to hear and determine the dispute
out of which such unfair labor practice shall have arisen. . . :'
On June 5, 1952, Equitable Gas Company, herein called Equitable,
filed with the Regional Director for the Sixth Region a charge against
Local 12050, District 50, United Mine Workers of America, herein
called District 50, alleging that it had engaged in and was engaging
in certain activities proscribed by Section 8 (b) (4) (D) of the
amended Act. It was alleged, in substance, that District 50 had in-
ducod and encouraged Equitable's employees to engage in a strike or
con serted refusal to work in the course of their employment with an
object of forcing or requiring Equitable to assign particular work to
employees who are members of or represented by District 50 rather
than to employees who are members of Local Union 149, International
Brotherhood of Electrical Workers, AFL, herein called the IBEW.
Pursuant to Sections 102.71 and 102.72 of the Board's Rules and
Regulations, the Regional Director investigated the charge and pro-
vided for an appropriate hearing upon due notice to all the parties.
Thereafter, a hearing was held before Joseph C. Thackery, hearing
officer, on July 2 and 3, 1952. The IBEW was permitted to intervene
and to participate fully in the hearing. All parties appeared at the
hearing and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to adduce evidence bearing on the
issues. The rulings of the hearing officer 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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Equitable Gas Company, a Pennsylvania corporation, is engaged at
Pittsburgh, Pennsylvania, in the production, transmission, purchase,
storage, distribution, and sale of fuel gas. It has interconnecting pipe-
lines with Texas Eastern Transmission Corporation, Tennessee Gas
Transmission Company, and the United Fuel Gas Company. These
latter companies are engaged in the transmission of fuel gas from the
southwestern United States.
During 1951 Equitable produced 37,084,634 thousand cubic feet and
purchased 25,028,786 thousand cubic feet of gas from the above-named
transmission companies and purchased 10,133,668 thousand cubic feet
of gas from other sources. In the same period Equitable sold 2,906,889
thousand cubic feet of gas in West Virginia valued at $968,303 and sold
UNITED MINE WORKERS OF AMERICA 427
54,597,042 thousand cubic feet of gas in Pennsylvania valued at
$24,817,360.
Equitable stipulated that it is engaged in interstate commerce, and
the Board's jurisdiction over its operations is not contested by any of
the parties.
We find that Equitable is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
United Mine Workers of America, Local Union 12050, District 50,
and Local Union 149, International Brotherhood of Electrical Work-
ers, AFL, are labor organizations within the meaning of the Act.
M. THE DISPUTE
A. Facts
In 1948, the Securities and Exchange Commission ordered the break-
ing up of the Philadelphia company, a holding company whose num-
erous subsidiaries included the Equitable Gas Company and Duquesne
Light Company in the Pittsburgh area. By December 1950 Equitable
had been extruded from the Philadelphia system, and only one action
remained to be accomplished before full compliance as to Equitable
with the SEC order. The unified purchasing, warehousing, and sup-
ply functions hitherto performed at its Manchester warehouse in
Pittsburgh by Duquesne for itself and other Philadelphia subsidiaries,
including Equitable, were to be fragmented by transfer of these func-
tions to the subsidiaries for performance by themselves. Equitable
had arranged to transfer certain stocks from Manchester to its own
premises, and to place on its own payroll nine employees who had
worked for Duquesne but whose functions while there were mainly
handling Equitable's supplies. In connection with these transfers,
Equitable created a new department within the framework of its
corporate structure called the purchasing department, and included
within it the general stores division. The nine employees slated for
transfer from Duquesne were assigned to this division. A new facility,
called the South Side location, was constructed by Equitable, and space
therein was allocated for general stores warehousing and supply
functions.
In October 1951 Equitable began the movement of general stores
supplies and personnel to the new South Side location. According
to the testimony of Equitable's officials, District 50 hereupon objected
to the employment of IBEW members at this location and demanded
the assignment of the disputed general stores jobs 1 at South Side to
' There is no dispute as to three of the nine jobs involved in the transfers.
428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its members who were employed in Equitable 's distribution depart-
ment? District 50's witnesses did not specifically deny this testimony
but testified that the demand was for the assignment of the disputed
work to employees in the distribution department as required by
Equitable 's contract with District 50. To enforce its demand District
50 on October 22, 1951, caused a work stoppage by its members which
ended upon agreement by Equitable to recall the transferees to the
Manchester warehouse . Between October 1951 and June 1952, Equi-
table tried unsuccessfully to settle the controversy with the competing
unions . On June 4, 1952 , Equitable again attempted to transfer gen-
eral stores supplies and personnel from the Manchester warehouse to
the South Side location . On June 5, District 50 blocked this move by
a strike of its members and by picketing. On June 6 the work stop-
page ended on Equitable 's assurance that the transfer would be post-
poned until a ruling by the Board had determined the rights of the
parties.
.
B. Bargaining history
Local 12050 , District 50, UMW, was certified in 1937 by the Pennsyl-
vania Labor Relations Board as bargaining representative for a unit
limited to Equitable 's distribution department employees , and has
ever since had contractual relations with Equitable for these employ-
ees. Its current contract for 3 years , effective from December 16, 1950,
was signed in January 1951 . During negotiations in December 1950,
preceding agreement as to the terms of this contract , District 50 pro-
posed that all new jobs to be added to the Equitable payroll as a result
of the SEC order be covered by the contract . District 50's officers
testified that this proposal was a specific claim by their Union for
bargaining rights for the disputed jobs. Equitable rejected the pro-
posal, and the disputed jobs were not specifically covered by the con-
tract. However , for the first time in any contract between the parties,
the following clause , hereinafter called the negotiation clause, ap-
peared in the new contract :
Classifications not shown in this Agreement will be a matter of
negotiation between the Company and the Union covering hourly
and monthly employees.
Philadelphia and its subsidiaries , including Equitable and Du-
quesne, have had contractual relations on a joint basis with various
IBEW locals . Following Board certifications in 1948 and 1949, in
stipulated cases, the several companies in the Philadelphia system
entered into a 2-year contract effective from October 1 , 1949, with
IBEW Local Unions 140 and 149 as the joint representatives of the
S The distribution department is one of 10 departments shown on the Equitable organi-
zational chart. It appears to be a main operating department of the company.
UNITED MINE WORKERS OF AMERICA 429
employees of the "General Departments" of the companies.3 These
departments performed certain management, administrative, and
other nonoperating services for all the Philadelphia subsidiaries on
an intercompany basis. Included among these departments was the
system's purchasing department.
Pursuant to Board certifications in 1948, in stipulated cases,4 Du-
quesne executed separate 2-year contracts effective October 1, 1951,
one with IBEW Local Unions 140, and 148, and the other
with IBEW Local Unions 140 and 149. The first of these contracts
covered Duquesne's production, maintenance, transmission, and dis-
tribution employees including the nonclerical classifications of the
general stores department. The second contract covered all of Du-
quesne's office, clerical, and technical employees including the clerical
classifications of the general stores department. The general stores
department performed the above-related supply services at the Man-
chester warehouse for several of the subsidiaries, including Equitable,
and was regarded within'the Philadelphia system as a quasi-general
department.
When, following the SEC order, the general and quasi-general
departments ceased to operate on an intercompany basis and Equita-
ble was required to perform the functions of these departments for
itself, Equitable and Local Union 149 agreed to representation by the
latter of the employees on the Equitable payroll who had formerly
been covered by the contract for general departments employees and
of the transferred general stores employees formerly covered by Du-
quesne's contracts with the several IBEW locals. By an agreement
dated November 19, 1951, the parties agreed to cover these employees
for 1 year from October 1, 1951, under the pertinent terms of the
general departments contract with certain modifications. Thus, at
present the disputed employees are expressly covered by an agreement
which extends to Equitable's employees in its purchasing, accounting,
automotive equipment, economic and management research , general
sales, land, personnel, planning and development, secretary's and
treasury departments. In effect these employees comprise a unit com-
parable to the former unit of general departments employees of the
Philadelphia subsidiaries, the essential difference being that the unit
now represented by Local Union 149 consists only of Equitable's
employees.
3 The IBEW was certified in Case No. 6-RC -64 for a unit of "all employees of the
,General Departments " of the Philadelphia company and its subsidiaries . In Case No.
6-RC-305 Local Union 149 , IBEW, was certified for a unit of "collectors traffic receipts,
assistant collectors traffic receipts , and chauffeur guard relief men in the Treasury Depart-
ment" of the companies . The Board 's certification in the latter case permitted the inclu-
sion of these employees in a single unit with the general department employees. The
October 1, 1949, general departments contract accordingly covered all employees included
In these certifications.
4 Cases Nos. 6-RC-88 and 6-RC-89.
430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Contentions of the parties
Equitable contends that it has the right freely to assign the work
in question to employees of its own choosing, and denies any surrender
of such right to District 50 by contract or otherwise.
The IBEW is in accord with Equitable's position.
District 50 maintains that its contract with Equitable requires the
assignment of the disputed work to employees in the distribution
department. This contention is predicated on a construction of the
"negotiation" clause in the contract which District 50 argues obligated
Equitable to "negotiate" with it for the disputed jobs. District 50
argues further that through negotiation it could have shown that
these jobs appropriately belong in the distribution department, and
that the jobs should have been posted so that employees of that de-
partment could have bid for them; ° that by unilaterally including
these jobs in the general stores division of the purchasing department
and by assigning them to members of the IBEW, Equitable violated
its contract.
D. Applicability of the statute
It is clear from the record that the "dispute" in this proceeding
involves efforts by District 50 to force or require Equitable to assign
certain work of its general stores division in the purchasing depart-
ment to employees who are either members of District 50 or are
members of the distribution department bargaining unit covered
by District 50's contract, although the work was assigned by the
Employer to employees who are represented by the IBEW and cov-
ered by its contract. Accordingly, we find that this is a dispute within
the meaning of Sections 8 (b) (4) (D) and 10 (k), and therefore
properly before us for determination.,,
E. Merits of the dispute
The parties disagree as to the meaning of the negotiation clause
in the contract. Equitable and the IBEW assert that as the contract
accords representative status to District 50 for distribution department
employees only, the negotiation clause manifestly requires the parties
5 District 50's field representative testified that "The thing we were objecting to was
these men [ the disputed employees] coming in at the very top classification ." He testified
further that District 50 desired that the jobs be posted "within the framework of [its]
contract." As the contract provides for the filling of new jobs created in the distribution
department with qualified employees in that department before new employees are hired,
it seems apparent that the demand for posting was a method of forcing the selection of
distribution department members for these jobs.
•Local 26, International Fur and Leather Workers Union ( Winslow Bros . & Smith
Co.) 90 NLRB 1379 ; Amalgamated Meat Cutters & Butcher Workmen of North America,
Local 556, AFL (Safeway Stores, Incorporated ), 100 NLRB 357 . None of the parties in
this proceeding contests the applicability of the statute , and stipulated at the hearing
to be bound by the Board 's determination.
UNITED MIIkE WORKERS OT 'AMERICA 431
to negotiate solely for new classifications created within that depart-
ment. Equitable's officials testified that the clause was included in
the contract for this specific purpose. Because the disputed jobs
were established in the purchasing department , which is separate
and distinct from the distribution department, they maintain that
Equitable was not obligated, by the contract to negotiate with District
50 concerning these jobs.
District 50, on the other hand, asserts that the clause was intended
to apply to all new classifications to be added to the Equitable pay-
roll as a result of the transfer of employees from Philadelphia sub-
sidiaries pursuant to the SEC order. To support this position, Dis-
trict 50's officials testified that during negotiations before the contract
was concluded they had proposed to Equitable that their Union be
granted bargaining rights for the new jobs, and that the negotiation
clause was incorporated in the contract upon Equitable's agreement
to negotiate with District 50 for all these jobs. To bolster this
meaning of the clause, these witnesses testified that although District
50's previous bargaining contracts with Equitable had not contained
such a clause, the parties had nevertheless in the past negotiated
for new classifications added to the distribution department. They
reasoned therefrom that it is not likely that the clause was meant
to provide for a practice which in the past had been followed as a
matter of course without a contract provision, but that the clause
was included in contemplation of a new contingency, namely the
transfer of jobs from the Philadelphia system. However, District
50's recording secretary, its principal witness at the hearing, testified
in effect that in December 1950, during the period of contract negotia-
tions, Equitable had refused to accede to District 50's proposal for
inclusion in the contract of all the jobs to be transferred, and that
Equitable's position was that only jobs assigned to the distribution
department were to be covered by the contract. This account of
Equitable's stand on this matter, with no evidence in the record that
Equitable had altered its position before the contract was concluded,
strengthens the testimony of Equitable's officials that the negotiation
clause was intended to apply only to jobs within the distribution
department, and renders doubtful District 50's broad version of the
clause.
In any event, it does not follow from District 50's interpretation
of the negotation clause that Equitable had contractually abdicated its
managerial prerogative of organizing its corporate structure and
assigning company operations to departments of its own choosing.
We are satisfied that neither this clause nor any other part of District
50's contract deprived Equitable of its managerial right to decide
whether the disputed jobs should be incorporated in the purchasing
department of the company or in any other department. We find no
432 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
merit in District 50's contention that Equitable was committed by
the negotiation clause to include the general stores work in question
in the distribution department, and to assign the work to employees in
that department. Such right as District 50 may have to require the
assignment of the disputed work to members of the distribution depart-
ment must flow from other provisions of the contract.
Implicit in District 50's contentions is the argument that the dis-
puted jobs appropriately belong in the unit of distribution department
employees for which it is colatractuall)7 the bargaining representa-
tive? As the IBEW also claims contract rights for these employees,
we view the dispute here presented as essentially a disagreement
between two unions as to which of the existing bargaining units
appropriately includes the disputed supply jobs.
The record does not disclose the precise functions of the distribution
department, except that it is referred to as an operating department.
Further information as to the nature of its functions may be derived
from District 50's contract and the testimony which reveal that the
hourly job classifications of this department include equipment
mechanic, ditching machine operator, welder, fitter, utility man, ap-
pliance man, meter specialist , repairman , and adjuster, main and serv-
ice man, and laborers. The record shows also that there are in this
department, welding and other repair shops, and that pipes and other
materials are trucked to street locations where employees of this
department do work of a construction type. It thus appears that the
distribution department performs the physical operations incident
to the installation and maintenance of supply lines through which
Equitable distributes fuel gas to its customers.
The distribution department is broken down into several divisions
which function in their respective geographic areas, and also includes
a machine, gas meter, and appliance shops which perform services
for all the divisions of the department. Each division has a supply
room which issues materials and equipment for divisional opera-
tions. Some materials are shipped directly from supply sources to
job locations within the divisions without passing through general
stores. Otherwise all stocks for the division supply rooms are
requisitioned from the Manchester warehouse, and are usually ordered
to fill anticipated needs only for a few weeks. If stocks remain for
more than several weeks in the division supply rooms they ale returned
to general stores at the Manchester warehouse. Each of these supply
rooms has one or more clerks who store and disburse materials and
keep stock records. These employees are classified as district clerks
A and B, and storekeeper A.
* On June 3 , 1952, after a meeting of its executive committee, District 50 informed
Equitable that if it moved any of the general stores employees into the South Side build-
ing "we were going out because we believed that we were the bargaining agents for those
jobs coming over there."
UNITED MINE WORKERS OF AMERICA 433
The distribution department is headed by a general superintendent
who in turn is under the company's assistant vice president in charge,
of operations. Each division in the department, as well as the meter
shop, is directly under a division superintendent.
The purchasing department, as set forth above, was established in
October 1951 to perform purchasing, warehousing, and supply func-
tions for Equitable which before then had been performed for it by
Duquesne at the Manchester warehouse. This department includes,
in addition to the general stores division, the printing and stationery
division. These divisions furnish supplies to all Equitable depart-
ments. The printing and stationery division issues office clerical
supplies, and the general stores division stocks and issues approxi-
mately 6,500 different items furnished mainly to the distribution de-
partment. Approximately 85 percent of the total quantity of these
supplies goes to the various distribution department divisions. These
divisions requisition all but approximately 5 percent of the separate
items stocked by general stores.
The work performed by six of the nine employees who currently
comprise the total general stores work force is in dispute. These
six have the following classifications and duties : A general clerk and
an intermediate clerk maintain inventory records and post records of
receipt and disbursement of supplies; two warehousemen and a stock-
man A physically handle supplies in connection with their receipt,
storage, disbursement, and shipment; a stockman C performs assigned
laboring tasks. All general stores employees are directly under the
general storekeeper. The purchasing agent heads the purchasing
department and he in turn is responsible to the company's vice
president and general manager.
The general stores employees still work at the Manchester ware-
house although, as already stated, Equitable has a new facility which
was ready to house them in October 1951. This facility consists
of two adjoining buildings, one new and the other old, and a sur-
rounding yard area. Approximately 70 percent of the first floor
space and 7 percent of the second floor space in the new building
has been allocated for general stores. Approximately 5 percent of
the space in the old building has also been reserved for general stores
as well as 75 percent of the yard area which is to be used for storage.
The remaining space is already being used by the employees of divi-
sion A of the distribution department and by the meter and machine
shops of that department. While at present the space within the
buildings allocated for general stores employees is not partitioned from
areas where distribution department employees work, Equitable
intends to erect partitions when the general stores employees will
be able to work there.
434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In support of its contention that the disputed general stores jobs
appropriately belong in the distribution department unit, District
50 appears to rely on the close functional relation between general
stores and the distribution department resulting from the fact that
most general stores services are performed for the distribution depart-
ment. It stresses the similarity of duties of the disputed general
stores employees and employees in the distribution department divi-
sion storerooms, and the close physical relation which will exist be-
tween general stores and distribution department employees when
general stores is finally moved to the South Side facility .8 To mini-
mize any apparent differences in the company-wide scope of general
stores' activities and the more limited scope of the distribution de-
partment's functions, District 50 points to the fact that division A
of the distribution department has a shop which fabricates pipe nip-
ples used not only by the various divisions of the department, but
which are stored at Manchester presumably for company-wide use;
also that there is a machine shop in this division which does work for
"large industrial installations," presumably outside its departmental
limits.
Opposed to these factors are the following circumstances favoring
the view that the general stores employees do not appropriately be-
long in the distribution department unit. That unit is and always
has been strictly a departmental unit from which Equitable's other
employees are excluded even though they perform functions and have
duties substantially like those of employees who are in the unit.
Thus, there are division storerooms in other departments, like the
division storerooms in the distribution department, manned by em-
ployees who are not in the unit.9 As indicated, the general stores
employees are in a separate department and are supervised by indi-
viduals who are unrelated to the distribution department. Although
there is some similarity between functions and duties of these em-
ployees and those of the distribution department storeroom employ-
ees, there are distinct differences. Thus, general stores services all
of Equitable's departments and handles a far greater quantity of stock
than any of the division storerooms which keep limited supplies on
hand and service only a segment of a single department.
We conclude from the foregoing circumstances that there is insuffi-
cient basis for finding that the general stores employees necessarily
belong in the same unit with distribution department employees. On
the other hand, we are satisfied that the general stores employees are
appropriately grouped in the unit currently represented by the IBEW
with other Equitable employees who like them perform administra-
e There are 125 distribution department employees who work at South Side.
s There are seven division storerooms in the transportation and production depart-
ment, and one division storeroom in the compressing station department.
ETHYL CORPORATION 435
tive, management, or nonoperating functions on a company-wide
basis.
Determination of Dispute
On the basis of the foregoing findings of fact and upon the entire
record in this case, the Board makes the following determination of
dispute, pursuant to Section 10 (k) of the amended Act:
1. The jobs classified as general clerk, intermediate clerk, ware-
houseman, stockman A, and stockman C whose duties are related to
the performance of supply functions in the general stores division of
the purchasing department of Equitable Gas Company, Pittsburgh,
Pennsylvania, are included in the unit of employees in departments
performing administrative, management, and nonoperating functions
presently represented by Local 149, International Brotherhood of
Electrical Workers, AFL, and not in the distribution department unit
now represented by Local 12050, District 50, United Mine Workers
of America.
2. Within ten (10) days from the date of this Decision and Deter-
mination of Dispute, Equitable Gas Company, Local 12050, District
50, United Mine Workers of America, and Local 149, International
Brotherhood of Electrical Workers, AFL, each may notify the Re-
gional Director for the Sixth Region, in writing, of the steps it has
taken to comply with the terms of this Decision and Determination of
Dispute.
MEMBERS HOUSTON and STYLES took no part in the consideration
of the above Decision and Determination of Dispute.
ETHYL CORPORATION and UNITED ASSOCIATION OF JOURNEYMEN AND
APPRENTICES OF THE PLUMBING AND PIPE FITTING INDUSTRY OF THE
UNITED STATES AND CANADA, LOCAL UNION No. 211, AFL, PETI-
TIONER
ETHYL CORPORATION and INTERNATIONAL BROTHERHOOD OF ELECTRICAL
WORKERS, LOCAL UNION No. 716, AFL, PETITIONER
ETHYL CORPORATION and OIL WORKERS INTERNATIONAL UNION, CIO,
PETITIONER
ETHYL CORPORATION and SHEET METAL WORKERS INTERNATIONAL AS-
SOCIATION, LOCAL UNION No. 54, AFL, PETITIONER. Cases Nos. 39-
RC-482, 39-RC-1.83, 39-)?C-485, 39-RC-501, 39-RC-507, and
39-RC-517. November 20,1952
Decision and Direction of Elections
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, a consolidated hearing was held before
101 NLRB No. 94.
242305-53-29