Baltimore Gas and Electric Co.

National Labor Relations Board - Board DecisionsAug 24, 1962

138 N.L.R.B. 270 (N.L.R.B. 1962)

270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and technical employees,5 secretarial, clerical, mailing and shipping employees, and all supervisors 6 as defined in the Act. [Text of Direction of Election omitted from publication.] 5 The parties stipulated to exclude as professional or technical the following categories: attorney, research director and his assistant, time-study specialists, employees in publicity and public relations including those in publication of the monthly periodical, the educa- tional director and his assistant , field auditors , administrators of the pension fund, the administrative assistant to the president, and the legislative representative 9 The parties agreed that the following are supervisors: the two general officers of the Employer (president and secretary-treasurer), members of the executive committee (all vice presidents and administrative vice presidents), all regional directors and industry directors Also excluded as supervisors are the two supervisory administrative personnel otherwise referred to as supervisory assistants and administrative assistants to a regional director, who, in their primary duty of supervising and directing organizational activities on behalf of the regional director , responsibly direct the work of International repre- sentatives involved within the meaning of the Act Baltimore Gas and Electric Company i and Utility Workers Union of America , AFL-CIO, Petitioner . Case No. 5-RC-3724. August 24, 1962 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Louis S. Wallerstein, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Leedom, Fanning, and Brown]. Upon the entire record in this case, the Board finds: 2 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organization involved claims to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9(c) (1) and Section 2(6) and (7) of the Act. 4. The Employer is a Maryland corporation engaged as a public utility in supplying electric, gas, and steam services in and around Baltimore, Maryland. All but six of the Company's employees work within a 25-mile radius of its headquarters in Baltimore. The Em- ployer has had no collective-bargaining history with any labor organization. ' The name of the Employer appears as amended at the hearing 2 The Employer has requested oral argument This request is hereby denied because the record and the briefs adequately present the issues and the positions of the parties 138 NLRB No. 33. BALTIMORE GAS AND ELECTRIC COMPANY 271 The Petitioner seeks to represent a unit which it describes as con- sisting of physical employees, including plant clerical employees, technical employees, and meter readers, but excluding office clerical employees. It appears, however, that in fact the Petitioner is seeking a systemwide unit of all employees, including meter readers, but ex- cluding office clerical, managerial, and professional employees and supervisors. The Employer takes the position that all of its nonsupervisory employees constitute a highly integrated operating group, working under uniform labor relations policies in a common effort to provide efficient, prompt, and reliable services to the public. It contends that, therefore, an overall unit only is appropriate for purposes of collective bargaining. Alternatively, the Employer concedes that a distinction might be drawn, for purposes of representation, between clericals involved in the Company's operating departments on the one hand, and clericals who perform only general administrative services on the other. The parties are in agreement as to the inclusion of 3,523 physical employees, 502 technical employees, and 489 plant clerical employees. They also agree as to the exclusion of 20 plant protection and 1,436 professional managerial, and confidential employees from any unit found appropriate by the Board. They disagree as to placement of 1,374 clerical employees and meter readers. The Petitioner would exclude all of the clericals in dispute as office clericals, but would include meter readers in the unit as physical employees. The Em- ployer contends that all the disputed employees perform functions directly related to operations and should therefore be included in the unit, but asserts that if office clericals are excluded meter readers should also be excluded in accord with past Board practice. 1. Clericals The record discloses that some of the disputed clerical employees work at operational centers in the following departments : customer relations, rating, rate research; customers accounts (including billing, customers' accounting, credit and collection, four district offices) ; in- dustrial fuel; industrial power; residential sales promotion; appli- ance sales ; purchasing; telephone; payroll; and the intersystem power utilization bureau. The clericals in industrial fuel, industrial power, and the intersystem power utilization bureau are physically separated from the Employer's administrative offices, working under the same supervision as and in close contact with physical employees and plant clericals in the operating departments. As their clerical work is in- timately related to, and is performed in support of, operation func- tions, we find that they have a community of interest with other plant 272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD clerical employees who the parties have agreed should be included, and we shall include them in the unit.' Also in accordance with established Board rules , we shall exclude, from the unit those other disputed clericals who perform general administrative clerical duties and who work apart from, and under separate supervision from, the physical and plant clerical employees .4, These are clericals who work in the following departments : customer relations ; rating, rate research ; department of customers ' accounts (including billing, customers ' accounting , credit and collection, and the four district offices ) ; residential sales promotion; appliance sales; purchasing ; telephone ; and payroll. The Employer and the Petitioner agree that the 59 commercial, servicemen are physical employees . The parties further agree to in- clude a principal senior-clerk , L. K. Skrivan, and two other clerks, E. L. Harden and M . Shayt , who work with, and in support of, the commercial servicemen . The Petitioner would exclude the remain- ing three route clerks , one senior clerk, nine clerks, one typist, one junior clerk , and one office boy in this department as office clerical employees . With the exception of the office boy, all of the disputed clerical employees attached to the commercial servicemen work in the same office , under the same supervision , and punch the same time- clock as do the three employees whom the parties agreed to include in the unit . Although the latter spend 11/2 to 2 hours daily working with the commercial servicemen , the other clerks substitute for them, on occasion and they frequently work in the same area and have con- tact with the servicemen . The clericals whom the Petitioner would include spend the major part of their day in the same room as the- disputed clericals doing the same work . Accordingly, we shall in- clude all of the above -mentioned clericals in the unit. The office boy does not work in the same room with these other clericals . Rather, he acts as a messenger , transporting keys of cus- tomers' premises and work orders back and forth between the Em- ployer 's headquarters and the commercial servicemen 's department. We, therefore , find that the office boy's interests are not allied with,- the other clericals in this department , as his contacts with the com- mercial servicemen are only incidental and minor , and shall exclude him from the unit.' The parties agreed to treat certain clerks in the meter reading de- partment in the same manner as the meter readers , but disagreed as, to the placement of other clericals in the same department . As here- inafter discussed , the meter readers shall be excluded from the unit 8 See South Jersey Gas Company, 102 NLRB 194 , 195; Waldorf Instrument Company, Division of F C. Huyck & Sons, 122 NLRB 803, 809-810 ; Raybestos Manhattan, Inc,. 115 NLRB 1036, 1037 ' See South Jersey Gas Company, supra. 5 See Barnhardt Manufacturing Company, 103 NLRB 261, 262 BALTIMORE GAS AND ELECTRIC COMPANY 273 as office clericals . Accordingly, we shall exclude all of the clericals, who work in support of meter readers as office clericals. 2. Meter readers There are 145 meter readers who work under the supervision of a meter reading supervisor in the department of customers' accounts. They follow assigned routes and visit customers' premises, make read- ings and calculations which they return to their department for billing purposes. As the Petitioner has advanced no persuasive reason why the Board should revise its policy with respect to meter readers, we shall exclude these meter readers from the unit as office clericals.6 3. Alleged supervisors The Petitioner would exclude certain employees from the unit on the ground they are supervisors. These employees earn a higher rate of pay than other employees in their departments and many have supervisory titles. The Employer contends that the titles are mis- nomers, that these men have previously been in supervisory jobs but no longer perform the same duties, and that they retain their titles and rates of pay because it is the Employer's policy not to change them when any senior employee can no longer perform the duties of his former job. Those classifications in dispute are discussed below. a. Inspectors Inspectors in the gas service department check the work of gas- fitters for safety and compliance with company standards and regu- lations. They are subject to the same supervision as the gasfitters whose work they inspect. In most instances they do not know whose work they are inspecting and rarely communicate directly with other employees. Main and service inspectors in the gas construction department inspect the worksites of contractors who are working on sewers and water lines. Their function is to locate underground gas pipes to, prevent any injury to the Employer's property by contractors. They sometimes require help from an assistant in handling the heavy elec- tronic equipment used to detect underground metallic pipes. In such instances their relationship is that of a more experienced worker to a less experienced employee, and the inspector's direction of his helper is routine in nature. There are four service inspectors in the industrial fuel department who inspect, adjust, and prepare large commercial or industrial gas e Battle Creek Gas Company, 132 NLRB 1528; The Houston Corporation, 124 NLRB 810. 274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD equipment for operation. They are primarily mechanics rather than inspectors. The employees classified as inspector stations in the power trans- mission stations department regularly check the substations' trans- formers for oil leaks, and inspect the transformers and switches for signs of damage. It is clear from the record that all the above inspectors work either with the Employer's crews or with contractor crews in the field, under supervision, and have no supervisory authority themselves. It thus appears that these individuals have interests in common with the rank- and-file employees,' and we shall include them in the unit. b. Foremen (1) Electric distribution department W. J. McCrea and F. J. Meehan are classified as foreman inspectors. They work with contractors who clear the Employer's transmission line rights-of-way of any potentially hazardous trees. They spend 95 percent of their time in the field and do not have any employees re- porting to them. C. H. Bunting and L. Ullrich are called foreman-underground. These men presently work with contractors' crews to prevent damage to the Employer's underground electric cables. Two men are designated as foreman-overhead. F. C. Davis, Jr., inspects the Employer's crews for compliance with safety regulations and reports infractions to the foreman on the job, but gives no orders or instructions to employees. There is evidence that this position is rotated among foremen and that Davis may return to his previous job as foreman. However, his return is speculative and the record fails to establish that he has any present supervisory authority. Under such circumstances, the Board looks to the employee's present duties for the purpose of determining his unit placements K. K. Miller works in a powerline construction crew under the crew's supervisor. W. Al. Koehler and W. T. Poston bear the title foreman-tree trim- mers. They are presently working in tree-trimming crews, under supervision. (2) Gas manufacturing department There are three employees in the category, foreman-gas generator,' who act as plant load dispatchers in deciding, on the basis of weather 7 Louisiana Gas Service Co., 126 NLRB 147, 150 ; Pacific Gas and Electric Company, 87 NLRB 257, 266. 8 See Waldorf Instrument Company, Division of F. C. Huyck & Sons , 122 NLRB 803, 811. 9 A fourth employee in this group is accompanying a supervisor to learn the problems of supervision when he is not utilized as a plant load dispatcher . As the record does not establish any present supervisory authority in this employee , we shall include him in the unit . Igleheart Brothers Division, General Foods Corporation, 96 NLRB 1005, 1007, footnote S. BALTIMORE GAS AND ELECTRIC COMPANY 275 forecasts and consultation with a supervisor, how much gas should flow through the plant. They arso relay instructions to the generator house to operate certain machinery, operate gas pumps, and keep hourly records of natural gas received and fuels consumed in the man- ufacturing process. The Board has previously held that persons per- forming such functions are rank-and-file employees.10 W. M. Eckert, R. F. Bosley, H. P. Stephans, and E. E. Herring are classified as, foreman-station operators and work in the gas control group. They monitor the flow of gas and can dispatch gas to different locations in the distribution system as it is needed. No employees report to them and they do not have or exercise any authority over any other employees. They perform the same functions as discussed above under foreman-gas generator, except that these employees are concerned with the gas flow outside of the plant rather than through the plant. The Employer and the Petitioner agree that seven foreman- generator house are supervisors but the Employer contends that seven other individuals in this classification are not supervisors." The record reveals that the gas manufacturing plant operates only about 20 days each year due to a change in the Employer's method of opera- tion. The seven men presently spend the majority of their time repair- ing and adjusting the more complicated machines and, in addition, operate them during the 20-day period. They also work in mainte- nance shops and are considered to be senior gasmakers. Two individuals, Al. Blum and H. Freezo, are designated foreman- tar stills. They maintain approximately 75 pumps used in the by- products division. Although they are assigned a helper on occasion, they merely give routine direction and have no authority to hire or fire. (3) Gas construction department A. Haupt is classified as foreman-drips. He spends more than half the time in the regular work of his section, i.e., removing condensate from drip pots. The rest of the time he works under the supervision of the general foreman-drips in reviewing the amount of condensate recovered, and deciding, in consultation with his supervisor, how fre- quently the condensate should be removed. As it is clear that none of the above individuals who bear the title of foreman possess or exercise any supervisory authority, we find that they are rank-and-file employees and shall include them in the unit. 10 Cf. Idaho Power Company, 126 NLRB 547 , 552; Pacific Gas and Electric Company, 69 NLRB 258, 261. "The seven men in dispute are : C. McGuire , G. Wicklein, R. Bowser, L Cox, M . Kinnear, M. Kimmarle , and A. Kroeger. 662353-63-vol. 138-19 276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD c. Assistant foremen A. Waudby, classified as assistant foreman-troubleman lineman in the electric distribution department, studies new customer installa- tions , and instructs various physical employees in the proper safety procedures to be used in case of emergency at the new installations. The record shows that he lacks authority to change the employees' status and that he does not possess any indicia of supervisory author- ity. We shall therefore include him in the unit." There are seven disputed employees 11 in the electric distribution department holding the title assistant general foreman-tree trimmers. Each is assigned to a district for the purpose of inspecting the work of contractor tree-trimming crews along road side lines. They check to see how many men and how much equipment the contractor uses in performing these operations in addition to their primary job of pro- tecting company property from damage by these crews. L. B. LaFollette and N. R. Miller are designated assistant foreman- skilled trades and work in the gas manufacturing department. They are experienced journeymen who are being utilized as maintenance men. One works in a crew as a bricklayer, and the other maintains buildings and replaces sidings, doors, and sash. They have no author- ity to hire and fire and no employees report to them. As it is clear that none of the above assistant foremen exercise supervisory functions, we find that they are physical employees and shall include them in the unit. J. J. Wehrheim and E. F. Varner are assistant night foreman and assistant forewoman-office cleaners, respectively. They work in the building service and real estate department and are responsible for the office cleaning operations at the Lexington Building and at the Madison-Monument-Front Streets locations, respectively. They issue cleaning supplies and make work assignments to the office cleaners who report to them after the regular office hours when only one night foreman and no building superintendents are on duty. They earn 10 to 15 percent more than the office cleaners and have authority to reassign work if necessitated by the absence of one of the cleaning crew members. Each inspects the jobs of from 32 to 38 cleaning em- ployees and is responsible for getting these jobs done properly. De- spite their lack of authority to hire and fire, we are persuaded by the size of the crews, the fact that these crews work during hours when no building superintendent is on duty, and the high ratio of employees to only one night foreman which would otherwise result, that the assistant night foreman and assistant forewoman-office cleaners re- sponsibly direct the work of the crews within the meaning of the 12 See Heintz Manufacturing Company, 100 NLRB 1521, 1524. is They are : V. H. Carder , R. L. Wood, R. N. Kidd, N. C . Pounds, Jr ., H 0 Schwartz, J B. Timmons , and H. M. Wagner, Jr. BALTIMORE GAS AND ELECTRIC COMPANY 277 Act." We find therefore that they are supervisors and we shall ex- clude them from the unit. J. J. Kozak ' and I. J. Vaughn are the assistant foreman-toolroom and assistant foreman-warehouse in the operating stores department. They share offices with their foreman, dividing their time between keeping inventory records and assisting in the physical work in their departments. The assistant in the toolroom decides whether certain tools should be scrapped or repaired and is in charge of the depart- ment's 14 employees in the absence of the foreman. The assistant in the warehouse spends two-thirds of the time with stockmen, unloading and storing materials and assembling orders, and is in charge of about 25 employees in the foreman's absence. Neither assistant foreman has any authority to hire or fire. However, as the record does not dis- close the nature of their duties during the absence of the foremen or the frequency or regularity of such absences, we are unable to deter- mine whether they regularly have or exercise any supervisory powers'' and shall permit them to vote subject to challenge. 4. Miscellaneous a. Load dispatchers In the power transmission stations department there are 12 load dispatchers who constantly monitor the electrical performance for the Employer's entire system. On the first shift, they work under instructions from the chief load dispatcher and under the immediate supervision of a senior load dispatcher. The senior load dispatcher on the second shift instructs the dispatchers in their duties on that shift, and also leaves written instructions for the dispatchers on the third shift. The chief and senior load dispatchers forecast and schedule electric loads. We find that the chief and senior load dispatchers responsibly direct the other load dispatchers and we shall exclude. them as supervisors. We find, however, that the remaining load dis- patchers are not supervisors and shall include them in the unit.16 b. Assistant to operating engineer Mr. Harris, the only disputed employee in this classification, works in the power production stations department. He spends the majority of the time in the field transporting special tools and materials to, places where they are needed. He also inspects transportation equip- ment to determine whether maintenance'^is required. He does not 14 Potoinac Electric Power Company, 111 NLRB 553, 559 15 Ct. VIP Radio, Inc, 128 NLRB 113, 115; Phillips Oil Company, 91 NLRB 534, 536-537 10 See Idaho Power Company, 126 NLRB 547, 552; The Connecticut Light and Power Company, 121 NLRB 768. 278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD have any employees reporting to him and he has no authority over any employees. We find that he is a physical employee and shall in- clude him in the unit with three other employees in this classification whom the parties have agreed to include. c. Gas manufacturing department Two technical assistants, senior, Berryman and Keys, act as plant dispatchers. Their duties are identical to those hereinabove discussed, under the classification of foreman-gas generator, and whom we have included in the unit as physical employees. Accordingly, we shall include these employees in the unit. There are also seven stationary engineers who hold first-rate engi- neer's licenses and who remain on duty around-the-clock on a shift basis throughout the year. They operate and lubricate 100 pieces of equipment and work under a shift supervisor at all times. As none of these men possess or exercise any supervisory powers, we shall in- clude them in the unit. We find that the following employees of the Employer constitute a unit appropriate for collective bargaining within the meaning of Section 9(b) of the Act.27 All physical employees of the Employer, including plant clerical employees (including those in the industrial fuel, industrial power, intersystem power utilization bureau, and commercial servicemen de- partments), technical employees;,and employees classified as foreman inspectors, foreman-underground, foreman-overhead, foreman-tree trimmers, assistant foreman-troubleman lineman, and assistant gen- eral foreman-tree trimmers in the electric distribution department; foreman-gas generator, foreman-station operators, foreman-generator house, foreman-tar stills, assistant foreman-skilled trades, stationary engineers, and technical assistants, senior, in the gas manufacturing department; inspector main and service in the gas construction de- partment; inspectors in the gas service department; service inspectors in the industrial fuel department; load dispatchers and inspector sta- tions in the power transmission stations department; and the assistant operating engineer in the power production stations department; 16 but excluding office clerical employees (including the office boy in the commercial servicemen department, and all meter readers and cleri- 17 The unit found appropriate is larger than that originally sought by the Petitioner, and neither the exact size of the unit nor the precise interest of the Petitioner in the unit is clear from the record Accordingly , the Regional Director is instructed not to proceed -with the election herein until he shall have first determined that the Petitioner has an adequate showing of interest among the employeees in the appropriate unit Foremost ..Dairies, Inc., 118 NLRB 1424, 1428 . We shall also permit the Petitioner to withdraw ,its petition without prejudice upon notice to the Regional Director within 10 days from ithe date of issuance of this direction. 18 As set forth above , the assistant foreman-toolroom and assistant foreman-warehouse in the operating stores department may vote under challenge. LOCAL 825, INT'L UNION OF OPERATING ENGINEERS 279 cals in the meter reading department), guards, professional employ- ees, and supervisors (including the assistant night foreman and the assistant forewoman-office cleaners in the building service and real estate department) as defined in the Act. [Text of Direction of Election omitted from publication.] Local 825, International Union of Operating Engineers, AFL- CIO, and its agents and representatives , Peter Weber, business manager, William Duffy, business agent and John Pierson, business agent and United Engineers & Constructors, Inc. Local 825, International Union of Operating Engineers, AFL- CIO, and its agents and representatives, Peter Weber, business manager and William Duffy, business agent and Utility Serv- ice Corp. Local 825, International Union of Operating Engineers, AFL- CIO, and its agent and representative , Peter Weber, business manager and W. A. Chester, Inc. Local 825, International Union of Operating Engineers, AFL- CIO, and its agents and representatives, Peter Weber , business manager, William Duffy, business agent and John Pierson, business agent and Public Service Electric & Gas Company. Cases Nos. 22-CC-139, 22-CC-140, 22-CC-141, and 22-CC-142. August 27, 1962 DECISION AND ORDER On May 11, 1962, Trial Examiner John F. Funke issued his Inter- mediate Report in the above-entitled proceeding, finding that the Re- spondents, Local 825, International Union of Operating Engineers, AFL-CIO, its business manager, Peter Weber, and its business agents, William Duffy and John Pierson, had engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. He also found that the Respondents had not engaged in other unfair labor practices alleged in the complaint. Thereafter, only the General Counsel filed exceptions to the Intermediate Report and a supporting brief, limited to matters affecting the recommended remedy and order. Respondents thereupon filed an answering brief contend- ing that the Trial Examiner's recommended order should be adopted without material change. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers in connection with 138 NLRB No. 26.