Central Maine Power Co.

National Labor Relations Board - Board Decisions

Feb 15, 1965

151 N.L.R.B. 42 (N.L.R.B. 1965)

42 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUDING FINDINGS
It is clear from all the evidence in this case that Charles H. Poindexter was dis-
charged for neglecting his work as an employee of the Respondent-not for the
purpose of discouraging membership in the Union. The Respondent partners and
all of their supervisors profess loyalty to the trade union movement and seeks to
promote the practices and procedures of collective bargaining. Officials of the Union
attest to the fact that Respondent has never exhibited any hostility to the union organ-
ization or its membership.
It is clear that as shop steward, Charles H. Poindexter was merely an assistant to
the business manager of Local 666, and was not authorized to exercise any super-
vision whatever over the employees of the Respondent during working hours. Only
by consent of the employer may an employee perform the duties of shop steward
on company time, if it interferes with duties to be performed for such employer.
The Respondent herein had a legal right to restrict the activities being performed on
behalf of the Union during working hours by Shop Steward Charles H. Poindexter,
unless such restrictions be imposed to discourage membership in a labor organization.
The Respondent clearly had no such motive Neither can it be said that Poindexter
as an individual employee was engaged in activities protected by Section 7 of the Act.'
Furthermore, the existing collective-bargaining agreement provided a procedure
for the initial processing of grievances and disputes before a joint conference com-
mittee, and thereafter a final determination by referral to the council on industrial
relations for the Electrical Construction Industry for the United States and Canada,
whose decision would be final and binding upon all the parties. After the joint con-
ference committee herein failed to reach an agreement, the matter could well have
been referred to the council on industrial relations for a final decision, but the Union
came to the conclusion that there was no merit in the contentions of Poindexter, and
advised him to drop the issue. Nevertheless, Poindexter disregarded such advice and
filed a charge on August 8, 1963, alleging unfair labor practices against the Respond-
ent. The real issue in the case appears to be the determination of what rights and
privileges should be accorded to a shop steward to attend to union business during
working hours at the expense of an employer. It seems clear that such an issue must
be determined through the processes of collective bargaining, and not by the filing of
unfair labor practice charges before the National Labor Relations Board. The existing
collective-bargaining agreement provides procedures and machinery for the deter-
mination of such disputes and should be followed 2
RECOMMENDED ORDER
Upon the basis of the foregoing findings and conclusions, and upon the entire
record in the case, I recommend that the complaint be dismissed in its entirety.
I See Pathe Laboratories, Inc., 141 NLRB 1290.
2 See Spielberg Manufacturing Company, 112 NLRB 1080; and Denver-Chicago Trucking
Company, Inc., 132 NLRB 1416.
Central Maine Power Company and International Brotherhood
of Electrical Workers, AFL-CIO, Petitioner. Case No. 1-1RC-
806.. February 15, 1965
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Hearing Officer John R. Cole-
man. The Hearing Officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed. Thereafter, Employer and
Petitioner filed briefs.
151 NLRB No. 4.
CENTRAL MAINE POWER COMPANY 43
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the National Labor Relations Board has delegated its
powers in connection with this case to a three-member panel [Members
Fanning, Brown, and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of the
Act.
2. The labor organization involved claims to represent employees of
the Employer.
3. No question affecting commerce exists concerning the representa-
tion of certain employees of the Employer within the meaning of Sec.
tion 9(c) (1) and Section 2(6) and (7) of the Act, for the following
reasons:
The Petitioner seeks a self-determination election among all load
dispatchers located at the Employer's operations in Augusta, Maine,
excluding all other employees. The Petitioner presently represents the
production and maintenance employees of the Employer's central di-
vision.' The load dispatchers have been excluded from this unit and
Petitioner would now add them. The Employer contends that the
load dispatchers are supervisory or managerial.
The Employer is incorporated in the State of Maine, with its prin-
cipal office located in Augusta, Maine. It is engaged in generating,
transmitting, and distributing electricity to residential, commercial,
industrial, institutional, and governmental customers throughout the
'9,000-square-mile area in central and southern Maine. Its transmis-
sion lines are interconnected with the lines of its neighboring utility
companies in the New England area for the purpose of interchanging
energy and capacity.
The load dispatchers sought work at the executive offices, where
there are no generating or transmission facilities or production and
maintenance employees. Divisional headquarters of the central di-
vision are in a different building at another location in Augusta.
There are two load dispatchers on duty at all times. One takes care
of the load transmission on the whole system, while the other maintains
a log and comparable records, and the two interchange duties during
their tour of duty. They give orders to operators of generating stations
on increasing or decreasing the flow of power and on starting or shut-
ting down the operation of a station. They have authority to connect
or disconnect certain portions of the transmission circuits and the re-
sponsibility to make such changes as in their judgment are necessary
for repairs or maintenance and in emergencies. Requests for outages,
,disconnecting for the purposes of repairs, etc., are made to load dis-
patcher and they decide, when, where, and how to disconnect.
1 The Employer has four divisions, each covered by a separate contract with a different
local of the Petitioner. Load dispatchers working in other divisions are not sought herein.
44 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The load dispatchers are responsible for maintaining the proper flow
of water through 11 small streams and 3 principal rivers which are the
primary sources of power,' and of knowing when to cut in or out cer-
tain stations to effectuate economical use of the water storage, and to
balance the Employer's need with those of other interests; i.e., logging
companies driving logs and municipalities seeking to prevent high
pollution of streams because of reduced flow. On these latter prob-
lems, load dispatchers work closely with river engineers for the best
coordinated use of river flows and operation of the company storages.
However, on the Saco River the dispatchers have practically complete
control over the river flow, storage of water and its use or release, and
direct other employees to open and close the gates accordingly. There
are no company or State regulations that govern or relate to the duties
of load dispatchers, nor are there any company standard operating
procedures or handbooks to guide dispatchers in making their decisions
and judgments. Poor judgment by the dispatchers in the use and con-
trol of the water flow and storage results in a loss of this lower cost
power source and a resort to more expensive steam plant. Likewise the
failure to anticipate the needs of its customers and incorrectly choosing
between activating its facilities or tying into the lines of another utility
company could result in a loss to the Employer, for the proper choice
of one or the other can result in an economic advantage to the
Employer.
The load dispatchers pledge the Company's credit when they pur-
chase power from other utilities. Such purchases occur only after
the said dispatchers have made an independent judgment, based on
all the factors, as to whether it is more to the interest of the Employer
to do this than it would be to utilize one of its idle units. They also
sell the Employer's power to other utility companies and therein deter-
mine whether such sale will adversely affect its service to its con-
sumers or be too costly to the Employer because of the increased
capacity coming into operation.
The dispatchers also determine whether employees are to be held
over their shift and they send employees to certain locations in antici-
pation of load demands or trouble. This exercise of judgment affects
the cost of the Employer's operations.
Load dispatchers receive individual copies of the minutes of the
Monday noon management meetings, which are distributed to super-
visory and junior management employees and are furnished the com-
2 Approximately 53 percent of the power is generated at the Employer ' s 33 hydroelectric
plants, 41 percent at its 5 steam plants , and 6 percent is purchased from other utility com-
panies in that area . There are 3 or 4 storage ponds and lakes held back by dams and con-
taining several billion feet of stored water on each of the major rivers and an additional
31 or 12 dams at the hydro station.
CENTRAL MAINE POWER COMPANY 45
pany manual and the changes therein. This manual contains the
study of the Employer's labor policy, the finances of the Employer,
the organizational charts of the whole system, and information as
to finance, accountancy, operation planning, and engineering, and
these dispatchers are required to be familiar with its contents. In
addition, it appears that load dispatchers are invited to attend the
annual supervisors' meetings and that some do so.
The load dispatchers have a base salary of $8,950 annually and with
extras receive in excess of $9,000 per year. Like management-
supervisory personnel, and unlike production and maintenance em-
ployees, they are paid semimonthly, receive straight time for overtime,
and are exempt from the wage-and-hour law. The second level of
supervision, which includes district managers and division line super-
intendents, receives from $8,000 to $9,500 per year. The highest paid
production and maintenance employee receives approximately $7,500
per year and the first level of supervision is paid an annual salary of
from $7,500 to $8,700.
In the Employer's table of organization, load dispatchers are at the
third level below the president and on the same level as district man-
agers and division line superintendents. Several district managers,
who are admittedly second step supervisors, have become dispatchers,
and dispatchers have moved into more responsible positions with the
Company. Thus, one became manager, production operations, which
is at the executive level directly under the president; another became
the director of personnel, and still another became the chief load dis-
patcher. These latter positions are but two steps under the president.
In prior cases, the Board has included within production and main-
tenance units load dispatchers who perform some of the same functions
as do the load dispatchers here involved.' However, the record in-
dicates that the load dispatchers herein have authority and respon-
sibilities which exceed those normally associated with this position.
The Board has defined managerial employees as those who formu-
late, determine, and effectuate the Employer's policies. The deter-
mination of an employee's managerial status depends upon the extent
of his discretion, and the absence of established policy and regulations
to aid in the exercise of such discretion is a factor entitled to consid-
erable weight' It is clear that the load dispatchers here exercise this
type of discretion. They are not circumscribed by established lim-
itations or proscriptions as to the action to be taken in the various
problems with which they must deal. These factors, together with
their rate of compensation, position in the Company's hierarchy and
3 See, e g, The Connecticut Light and Power Company, 121 NLRB 768; Carolina Power
& Light Company, 80 NLRB 1321, and cases cited therein.
' See Eastern Camera and Photo Corp ., 140 NLRB 569, 571.
46 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conditions of employment persuade us that these load dispatchers have
managerial status.-' Accordingly, we find that the load dispatchers.
may not be added to the existing unit, and we shall dismiss the petitions
[The Board dismissed the petition.]
5 See Anac -rican Litho fold Corporation , 107 NLRB 1061, 1063.
Tawas Tube Products , Inc. and Harold Lohr, Petitioner and
United Steelworkers of America , AFL-CIO. Case No. 7-RD-
573. February 15, 1965
DECISION AND CERTIFICATION OF REPRESENTATIVE
Pursuant to a stipulation for certification upon consent election, an
election by secret ballot was conducted on August 27, 1964, under the
direction and supervision of the Acting Regional Director for Region I
among the employees in the unit herein found appropriate. The
parties were thereafter furnished a tally of ballots showing that all
30 eligible voters cast valid ballots, of which 17 were for and 13
against the incumbent Union. The Employer then filed a timely
objection to conduct affecting the results of the election. After con-
ducting an investigation, the Acting Regional Director on October 7,
1964, issued a report on objection to election and recommendation in
which he found merit in the objection and recommended that the elec-
tion be set aside. The Union thereafter filed exceptions to the report
and a supporting brief.
Upon the basis of the entire record in this case, the Board finds the
following :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved has been the recognized exclusive
bargaining representative of the employees of the Employer in the
unit in which the election was conducted.
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 following employees of the Employer constitute a unit
appropriate for purposes of collective bargaining within the meaning
of Section 9 (b) of the Act :
All production and maintenance employees at the Employer's place
of business located at 906 Ninth Avenue, Tawas City, Michigan, in-
cluding inspectors, but excluding office clerical employees, guards, and
supervisors as defined in the Act.
151 NLRB No. 9.