Illinois Power Co.

National Labor Relations Board - Board DecisionsNov 23, 1965

155 N.L.R.B. 1097 (N.L.R.B. 1965)

ILLINOIS POWER COMPANY APPENDIX 1097 NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT terminate probationary employees, and refuse to recall or rein- state them, because they engage in concerted activities for the purpose of mutual aid or protection. WE WILL NOT in any other manner interfere with, restrain, or coerce proba- tionary or other employees in the exercise of any of the rights guaranteed to them by Section 7 of the Act. WE WILL offer to Ruby L. Shepherd and Clara F. Stayers immediate and full reinstatement to the positions they held at the time of discharge, or an equivalent position, without prejudice to rights and privileges, if any, previously enjoyed, and will make them whole for any loss of pay suffered by them because of our discrimination against them. All of our employees are free to become or remain, or refrain from becoming or remaining , members of any labor organization, and are also free to engage in con- certed activities, whether or not they are members of any labor organization, to the extent recognized, permitted, and protected by the proviso to Section 9(a) of the Act. NORGE DIVISION, BORG-WARNER CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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. Employees may communicate directly with the Board's Regional Office, 746 Federal Office Building, 167 North Main Street, Memphis, Tennessee, Telephone No. 534-3161, if they have any question concerning this notice or compliance with its provisions. Illinois Power Company and Local No. 51, International Brother- hood of Electrical Workers, AFL-CIO. Case No. 14-CA-3284. November 23,1965 DECISION AND ORDER On October 28, 1964, Trial Examiner Eugene E. Dixon issued his Decision in the above-entitled proceeding, finding that Respondent had not engaged in unfair labor practices as alleged in the complaint and recommending that the complaint be dismissed in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter, the General Counsel and the Charging Party filed exceptions to the Decision with supporting briefs, and Respondent filed an answering brief. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recoln- mendations of the Trial Examiner for the reasons noted hereafter. 155 NLRB No. 101. 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The sole issue presented here is whether Respondent's ne wly created positions of control room supervisor aresupervisory within the mean- r ing of Section 2(11) of the pct. We agree with the Trial Examiner that such positions, which involve approximately five individuals, are 'supervisory. and that Res ;ondent's re rsisal to bargain ., itli the Union on behalf of such individuals was therefore not violative of Section -8(a) (5) of the k et.. Respondent, Illinois Power Company. is engaged in the production and distribution of gas and electric power throughout the State of Illinois. At the time of the hearing herein Respondent's Wood River -plant was in the. final stages of aâ€¢ vast physical expansion program which involved the addition of a fifth electrical generating unit. lJ pon completion of the expansion program, the Wood River plant will produce approximately 41 percent of the electrical lower produced by the Respondent. Construction, which started in September 1961, .was expected to cost approximately $40 million and as to be co n- pleted about 6 months after the close of the hearing herein May 1964. In connection with the addition of the fifth generating unit, the Union suggested certain provisional changes. A meet tg was held and the parties discussed the I7nion-'s proposal that the position, of shift foreman be created. The Union said that this a ddit?onel fore- Ii=a_1 `'would be another arm to the plant supervisor." that "a foreman is needed to hielpâ€¢ the supervisor, and that the plant area alone calls for another man." Respondent explained that it was considering the ;establishment of the position of control room Supervisor and stated -that the personnel assigned to this position, would not be included in the bargaining unit. The Union objected to the contemplated exclUsion, basing its objections not. upon a iacn of supervisory authority. but 'upon the grounds that it would mean a reduction in its membership =and -would afford Respondent greater leverage in bargaining by per- mitting the use of supervisors to run the plant in the event of a striae. In the early part of January 1964, Respondent decided to proceed 'with its proposal to create the new position of control room supervisor and notified the Union of its decision to do so. Five of the most senior men at the W, o-od River plant were offered and accepted promotion to the new position. All five were called to a meeting on January 31, 1964, and were informed that as control room supervisors 'they would be in complete charge of the control room -which -would govern generating units 4 and 5, and that they would receive a monthly sa^ary ith a resulting substantial increase in pay. Their new duties and respo_n_- sibilities were outlined to them through the reading of the new job descriptions which provided, inter Cilia. that the control room super- visor was responsible for (a) the operation of the control room and its equipment; (b) the supervision of the personnel assigned to the control room; (c) the safe and efficient operation of all centrally ILLINOIS- POVrER COMPANY 10Â°9: controlled units; namely, generating units 4 and 5, (d) the providing` of relief and assistance to the. plant supervisor; and (e) the instruction- and training of the personnel assigned to him. A list of general supervisory duties was also read to them which they, as supervisors,. would be authorized to perform. Among the listed duties were the approving and reporting on the performance of assigned personnel;- conlllhending individual merit and performance; correcting laxity in performance; hearing grievances; administering and reconhme-nding- discipline; approving and recommending changes in the- status of assigned personnel ; and assigning work and follo .wing its completion to assure proper execution. They were also informed that they would- enjoy all the benefits that apply to supervisory personnel; that they would be on constant 21 hour call; that they would be expected to, make out performance rating sheets on assigned personnel; that they would be- required to attend all management meetings at the; Wood River plant; and that any recommendations they made regarding- promotion or demotion would be given `great wveight."" As previously noted, the control room supervisor has been given the supervision of the personnel assigned to the control room, which means: that he will be directly responsible for five employees; namely, air assistant control room operator, three unit attendants, and a utility-- man. The record further reflects that the control room supervisor will also have full responsibility and authority over a substantial portion of the entire plant, including generating units 1, 2, and 3,- whenever the plant supervisor is absent or otherwise unavailable. This substitute role becomes particularly important whene er other regular daytime supervisors are not on duty. such as on Saturdays,. Sundays, and holidays, and on normal second and third shifts. At such times. the plant supervisor,' and in his absence, the control room supervisor. will not only supervise the regular operating personnel i but also the coal and yorCt. plant SECilrlt.y, and maintenance perSOllllel.. The control roof- supervisors officially assumed their new roles on February 3, 1964. At the. time. of the hearir^g herein, in May 1961, they were undergoing training for their new positions, and, as noted previously, they were to assume the full scope of their supervisory eludes after generating unit a actually wenl, into operation toward the- latter part of 1964. There. is no question that the duties and responsibilities of the con- trol room supervisors, as discussed supra, establish the position as supervisory within the meaning of the Act. There is no basis on this record to question Respondent"s good faith in acting as it did. We - The plant supervisor directly supervises eight employees in addition to indirect super- vision over the five employees under the control room. As initially contended by the Union, the size of the plant area made it impracticable for the plant supervisor to direct and supervise his eight employees as well as give immediate supervision to the employees under the control room supervisor. 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD note particularly that the Respondent and the Union have a long- standing bargaining - relationship ; that the employees selected for the new positions were given substantial increases in pay ; that they were undergoing training for the newly cleated position at the time of hearing; and that , the Respondent's vast expansion program in operat- ing facilities necessitated a realignment in supervision which the Union itself recognized.2 Respondent , therefore, was under no obligation to bargain with the Union with respect to control room supervisors . Accordingly, we shall dismiss the complaint. [The Board adopted the. Trial Examiner 's Recommended Order dismissing the complaint. MEMBER BROWN , dissenting : My colleagues have found that the Respondent , in connection with the greater mechanization of the opera- tions at its W s'cod River plant, has converted the control room operators at that plant to super isos; that the incumbents of those jobs must, therefore , be excluded from the existing unit of production and main- tenance employees ; and that, accordingly , the Respondent did not violate Section 8(a) (5) and (1) of the Act in refusing to bargain with the Union concerning those persons . I cannot agree. The Respondent retitled tile- classification as "control room superU1 isor" and rewrote the job description to assign to this position duties and responsibilities which , if actually possessed or exercised, would clearly establish that the incumbents were supervisors within the mean- ing of the Act. However, the evidence indicates that they have not exercised- any such authority , and it does not appear that other control room employees were informed of the change in their supervision. Rather, all of the control room emp loyees have continued to function in substantia-111 the same fashion as.. when, concededly, they :were part of the bargaining unit. Indeed, the very existence of any such au t'h_ori V in the so-called supervisors is questiona ble. Thus, as set forth more full., in the Trial Examiner 's Decision, two employees within this category tes- tified that the;' were told that they had authority only to send horse anyone coming in "dead drunkk orcietacing company property. Buell ai2thorlty is scarcely sufficient to e tabl_ 1 supervisory s:tat-Ì‚ ls under Section 2 ( 11) of the Act. The Trial Examiner concluded that this testimony was incredible because it was inconsistent with thei stated purposeof Respondent. However, to reason that Respondent's 2 Of necessity the Board has determined the status of control room supervisors in ad- vance of actual operating experience in view., of the Union's immediate demand for bar- gaining for such individuals. If experience under the new operating conditions establishes that the control room supervisors do not in fact exercise supervisory authority, the Board will reconsider its present finding on a motion to clarify the unit. ILLINOIS POWER COMPANY 1101 purpose establ ishes the effectiveness of action taken to further such purposes is illogical . The Trial Examiner has not found that these employees could make effective. recoininendat .ioiis concerning other employees and there is no evidence to warrant such a conclusion. All that, is shown in this record is Respondent 's intention to create a supervisory status for the control room supervisors without- evidence that supervisory duties have ever been performed by the disputed individuals . It is immaterial that the Respondent ma contemplate the th e controlthe future exercise of Tae stab tern- rr,yr by r ir om supervisors . For determinations concerning unit placement , includ- ing supervisory status , are made upon existing facts , not on possible future coedit on s and as the Trial Examiner recognized, the mere assignment of a lob title is -insufficient to establish a change of author- ity. Since the record here shows that the control supervisors neither meaningfully possess nor presently exercise supervisory authority, I would find that they are. not supervisors but employees concerning whom Respondent was obligated to bargain. 8 See, e.g., Purity Food Stores, Inc., (Say-iIore Food.. Stores), 150 NLRB 1523: Cooke & Jones, Inc., 143 NLRB 1664, 1675-1676; Sherman White & Company, 120 NLRB 499, 501. TRIAL EXAMINER'S DECISION STATEMENT OF TIlE CASE This proceeding, brought under Section ii,(b) of the National Labor Relations Act, as amended (61 Stat. 136) herein called the Act, was heard before Trial Examiner Eugene E. Dixon at St. Louis, Missouri, on May 19 and 20, 1964. The complaint, dated March 26, 1964, and based upon charges filed and served on February 5, 1964, was issued by the Regional Director for Region 14 (St. Louis, Missouri) on behalf of the General Counsel of the National Labor Relations Board, herein called the General Counsel and the Board. It alleged that Respondent had engaged in and was engaging in unfair labor practices by failing and refusing to bargain with the Union by its having unilaterally established new wage rates, hours of e:raloymen_t, and other terms and conditions of employment of certain employees and by reclassifying them as supervisors all in violation of Section 8 (a) (5) and 1) of the Act. In its duly filed answer Respondent denied the commission of any u -nfair labor practices. Upon the entire record in the case, and from my observation of the nitnesses, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT At all tires material herein Respondent has been an Illinois corporation engaged in the sale and distribution of gas and electric power in the State of Illinois with its principal office located in Decatur, Illinois. At all times material herein Respondent has maintained and operated a number of electric power generating plans, including a generating plant located at Wood River. Illinois, hereinafter referred to as the Wood River ola nt. in the course and conduct of its business operations Respondent annually receives gross revenues in excess of $250,000, and annually purchases, transfers, and delivers coal and other goods and materialsto its Wood River plant and other facilities in t1 he State of Illinois valued in excess of $50,000 directly from States of the United States other than the State of Illinois. Respondent at all times Ty-aterial herein has been an employer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED Local No. 51, International Brotherhood of Electrical Workers. AFL-CIO, at all times material herein has been a labor organization within the meaning of Section 2(5) of the Act. 1102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD III.. THE UNFAIR LABOR PRACTICES Respondent is engaged in the production and distribution of gas and electric power throughout the State of Illinois . Its electrical production facilities consist of four- steam generating plants or power stations connected together into a single transmission system which in turn is interconnected at various points to the transmission systems of neighboring public utility companies thereby forming a cooperative power pool: The Company 's four major power stations are located at Havana , Hennepin,. Vermilion, and Wood River , Illinois. At the time of the hearing the Hennepin sta- tion with a generating capacity of 316 megawatts was the Company 's leading power producer. At that time, however , an addition was being built to the Wood River plant which would add 385 megawatts making that plant capacity 647 megawatts. which would be more than double the capacity of the Hennepin station and could. when completed supply approximately 41 percent of the baseload of the en tire Illinois power system . The total cost of this expansion program was estimated at $40,000,000.- The Havana plant, with five generating units and eight boilers , is the oldest and least modern of Respondent's four major stations, having what is known as a decen- tralized system of internal controls. - Under this system there are individual control panels disbursed throughout the plant to regulate and monitor each o f the boilers and turbines and separate controls for various auxiliary equipment such as water pumps. Each boiler and turbine panel and each group of auxiliary equipment at the Havana plant is manned by an operator and an assistant operator all of whom are under the direct supervision of the plant supervisor . In addition , the Havana plant also has a. separate switchboard room where load control signals are receive ` from the central dispatching station in Decatur . The switchboard room is manned by an operator and an assistant operator (also under the direct supervision of the plant supervisor) and contains load monitoring equipment plus electrical controls for the switchyard and various pieces of auxiliary equipment. By contrast, the Hennepin and Vermilion plants have newer and more modern type control systems . Each plant has two generating units operating from a central con- trol room. These control rooms contain all the internal controls for the entire plant including the turbine panels, boiler panels, switchvard panels. and the auxiliary equip- ment panels. The control rooms of- these two plants are manned by a control room operator and the assistant control room operator and a group of unit attendants. Respondent concedes that "since each of these plaints are relatively small in size, having only two generating units apiece , the plant supervisor maintains rather close supervision over the control room and its operating personnel so that, under normal conditions , he, rather than the control room operator directs the work of the operating personnel ." - However in the case of an emergency or in the absence of the plant supervisor the control roomoperators may have occasion to direct the worn of the auxiliary operators and unit attendants . Such an occasion for instance might arise where it became necessary for the control room operators to prevent a generating unit from tripping off the line on an unscredule basis or to prevent a sign ificant reduction in load, or to take steps to avoid damage to major equipment. Respondent contends and its evidence shows that its managerial s aft has long, regarded the job of control operator at Hennepin and Vermilion plants as a supervisory position . Nevertheless it concedes that it has long bargained -tvdth the Charging Party regarding the wages, hours, and worLing conditions of the control room operators: at these two plants but that it has done so strictly on a voluntary basis , "there having: been no Board-conducted election or certification requiring their inclusion in the bar- gaining unit." Prior to the expansion -Grogram at the Wood River plant the operation there has been on a decentralized basis much like that existing at Havana. There were four- generating units at the Wood River location. There was a turbine control board, a. boiler control board, a pump control board for units I and 2, and a similar setup of control panels for units 3 and 4. In addition there was a switchboard room contains- ing the load control equipment, the switchyard controls , plus the generator and elec- trical auxiliary controls. The operating complement assigned to these 4 units on each shift t was com ised of 13 employees-a boiler operator and an assistant boiler operator stationed at each. of the 2 boiler control boards , a turbine operator and an assistant turbine operator stationed at each of the 2 turbine control boards , a switchboard operator and an assistant switchboard operator stationed in the old switchroom, and 3 au xiliary equip- ment operators stationed on a basement level in the vicinity of the pump control board. All of these employees were under the direct supervision of the plant supervisor. 1 There are four 40-hour shifts , the plant of course being operated around the clock. ILLINOIS POWER COMPANY 1103 The expansion of the Wood River plant involves the construction of unit No. 5 which began in September 1961, and was scheduled for operation sometime in the fall of 1964. Since the new unit is about four times larger in size than the four existing units, a large addition had to be built increasing the floor space some 40,000 square feet and increasing the height of the boiler and turbine plants for unit No. 5 some 60 percent over that of the existing units. In addition to increasing the size of the physical plant the expansion program has involved changes in the control function at the Wood River plant. As indicated previously , units 1, 2, 3, and 4 were operated almost exclusively on a decentralized basis. At the time of the hearing units 4 and 5 (including the turbine boiler, generator , and auxiliary eq.uiprl_^ent controls ) were either being operated or were scheduled to be controlled from a central control room situated in a new section of the plant , one level above the old turbine room. In addition, all of the load control equipment and tile switchyard controls for the entire plant (which were formerly located in the old switchroom ) were moved to the new control room. Thus the only controls still remaining in the old section of the plant are the boiler, turbine, generator , and auxiliary equipment controls for units 1, 2, and 3. Moreover, all of these controls have been consolidated into a single panelboard located on the main level of the old turbine room between units 1 and 2. At the time of the hearing the control room was in operation so far as unit 4 was concerned , but had not yet begun to operate with respect to unit 5, which operation , as indicated , was expected to begin sometime in the fail. According to Respondent , "The physical expansion at Wood River has brought about various changes in the lines of supervision , job classifications and job functions." As for units 1, 2, and 3, however , there is still a boiler operator and an assistant boiler operator at the control panel, a turbine operator and two assistant turbine operators stationed at the turbine control board , and three auxiliary equipment operators sta- tioned in the basement below units 1, 2, and 3. All eight of these employees are still under the direct supervision of the plant supervisor . While at the time of the hearing one man still remained in the old switchboard room to operate the few switches that were still there , he is to be moved from that locationn, when the expansion program is completed and the classification of switchboard operator and assistant switchboard operator are to be completely eliminated . Another personnel change was the elimina- tion of boiler , turbine, and auxiliary operators for unit No . 4 together with their assistants . At the time of the hearing these functions were being performed in the control room , having been moved there along with the equipment to which they relate. In addition to these changes , Respondent created a new job classification with the title "control room supervisor ." As described by Respondent in its brief the creation of this job was most significant" and one of the ":major features or the realignment program at Wood River." That this was "most significant " and a ";major feature" of the realignment program is quite apparent when it is considered that the complaint in this case was issued as a result of this action by Respondent . In short, the com- plaint alleges that the creation of the job classification "control room supervisor" was accomplished by Respondert without consultation with or bargaining with the Union' which constituted a refusal to bargain within the meaning of Section g (a) (5) of the Act by Respondent , and that Respondent 's continued refusal to bargain regarding the "control room super -visors" as not being in the bargaining unit is a continuing illegal 2 The evidenceshows that at least since 1950 there has been a continuous bargaining relationship between Respondent and the Charging Party with the respective contracts reflecting a bargaining unit substantially as is described in the current collective-bargaining agreement. In this connection, the contract does not set forth a bargaining unit as such but simply indicates that the agreement shall have effect in certain area and apply to certain employees covered by appendices to the agreement. As analyzed by the General Counsel the unit described in the agreement (which I find to be appropriate) covers "all employees in the La Salle. Galesburg, Kewanee, Bloomington, Danville, Champaign, De- catur, and Jacksonville service areas of the Employer in the following department and classifications: line departments, forestry departments, meter departments, service de- partments, substation construction and maintenance departments, generating station departments, hydroelectric station departments, gas plant departments, gas distribution departments, garage departments, and including the maintenance men, finisher and general repairmen, finisher and general repairmen helpers, janitors, storehousemenâ€¢ unskilled help, utility and general repairmen. and utility and general repairmen helpers ; and in the Havana, Wood River. Hennepin, and Vermillion powerplants of the Employer in the fol- lowing departments and classifications: plant operating departments, mechanical depart- ments, electrical departments, control and- instrument departments, coal handling and yard departments, and janitors excluding supervisory, professional, sales, clerical, office, and plant guard employees." 1104 DECISIONS OF NATIONAL LABOR REL ATIONS BOARD refusal to bargain. Thus there were two questions raised by the pleadings-(1) whether or not the Respondent created the classification of control room supervisor witho=^t notification and consultation with the Union, and (2) whether, in fact, the duties of the new classification are such as to constitute the incumbents of the positions supervisors within the meaning of the Act as Respondent, contends or are devoid of such indicia as the General Counsel contends. The Alleged Failure to Consult In the latter part of 1963 Respondent decided that the control room operator posi- tion at the Wood River plant was properly a supervisory position. This was ia l=ine with Respondent 's feeling (notwithstanding the voluntary inclusion of the control room operators in the bargaining unit by Respondent) that the control room operator positions at the Hennepin and Vermilion p_ants should have been supervisor- jobs "in view of the responsibility and ... the on-the-spot decisions" that had to be made by them. This was particularly true at the Wood River plant "because of the addi- tional size of the plant" the expense and importance of the new unit to the Cori- pany's entire operation, the special need that the equipment be operated properly, and the fact flat "the plant supervisor would be unable to give on he-spot direction." 3 Accordingly, a detailed analysis of the duties and responsibilities of the contemplated position of control room supervisor was trade and a written job description prepared. This description provided, among other things, that the control room si pervisor was to be responsible for (a) the operation of the control room and all of the equipment therein; (b) the supervision of the work forces assigned to the control room; (c) the safe and efficient operation of all centrally controlled units (rresumably units 4 and 5); (d) the providing of relief and assistance to the plant supervisor; and e) the instruction and training of the personnel assigned to Min. Pursuant to this evaluation the new supervisory category was placed in a salary range of $540 to $865 a month (starting them i n at $810 a month) which would amount to a substantial increase over their remuneration as control room operators. On August 26, 1963, Melvin Wilson, business manager for the Union, wrote the Company suggesting certain contract changes in connection with the addition of unit 5 and requesting a meeting with the Company to discuss them. In this communication the Union suggested the promotion of "one operator to shift foreman" stating that: The addition of a shift foreman for each shift would help greatly to direct the bringing up and down of 1, 2 and 3 units after 5 is on. Switching and clearance orders would be expedited by the use of this man. Emergencies could be cleared up faster and possibly with less loss of time and load. The operators would be relieved of some duties that fall in this category. Pursuant to the Union' s request a meeting was held on September 10, 1963. At this meeting, Wilson stated that addition of a shift foreman "would be another arm to the plant supervisor" and pointed out that "a foreman is needed to help the super- visor and that the plant area alone calls for another man." Respondent 's manager of personnel , Talbot, informed the Union that the Company was considering the establish ent of a new job classification knovn as "control room supervisor" and that the man to be assigned to that position would be in complete charge of unit No. 5, but that he would not be included within the bargaining unit represented by Local 51. According to Talbot's undenied and credited testimony the Union objected to this man's being placed outside the bargaining unit. The Union based its objec- tions not upon any lack of supervisory authority in the contemplated position but upon the grounds that it would bring about a reduction in union membership and give the Company greater leverage in bargaining by permitting the use of super- visors to nun the plant in the event of a strike . Talbot pointed out that the Company's thinking was "based solely on the need and the kind of decision-making ( anad) dis- cretion that this man must be able to exercise on the spot." A further meeting was held or October 24 where among other things the creation of the new supervisory position was again d iscussed with the positions of the Com- pany and the Union remaining unchanged. Agreement was reached at this time.on 3 In this connection Provan , the wood River plant manager testified that "the plant supervisor would he hard -Dressed trying to supervise the operation of (the new unit at wood River ) when . he still has units 1 through 3 to supervise . He needs somebody in that control room to make decisions . make them right now." Provan further explained in his testimony that "it was felt that if we established in the central control room a control man who is in fact a supervisor , we have solved the problem of this terrific in- crease in the span of the control of the plant supervisor , because we have a large portion of the capacity under the supervision of the control room supervisor." ILLINOIS POWER CO_I PA_NY 1 05 several other matters of discussion which agreement was confirmed in a letter dated January 15, 1964, from Talbot to Wilson. Finally, in early January after the Com- pany had decided to go ahead with the creation of the new job classification, Talbot met with Wilson and told him of Respondent's final decision which he promised would be confirmed in writing. On January 31 Talbot wrote Wilson as follows: As previously indicated to you and your committee, we believe that it is not appropriate to include a new classification of control room operator [sic, super- visor] in the bargaining unit of Local 51 at the Wood River plant, and therefore, do not plan to bargain for this classification, but will include it in our super- visory schedule to be paid on a monthly rate. On February 5, the Union filed charges and the complaint was issued, alleging Respondent's refusal to bargain. Conclusions At the hearing the General Counsel indicated that he was dropping the allegation that Respondent had unilaterally reclassified the employees in question to the posi- tion of control room supervisor and that he was willing that that allegation of the complaint be dismissed. In his brief he confirms this position and concedes that the issue to be decided here appears to be: "Are the five control room supervisors, supervisors within the meaning of the Act, or are they employees of the Employer." In view of the foregoing and considering the evidence as a whole, I find that Respondent did not reclassify the five employees in question without notice to or consultation with the Union. Accordingly, I shall recommend dismissal of that allegation of the complaint. However, in this connection, I do not agree with the Respondent that the General Counsel's concession in this respect and my ruling thereon disposes of the entire case.4 Nor does the fact that no continuing refusal to bargain was compained about by the Union in the charges it filed have any effect in this respect, since the com- plaint makes such an allegation. Accordingly, in order to dispose of the case, it is necessary to inquire into and determine. The Supervisory Status of the New Position On January 31, the same day that the Respondent informed the Union of i ts inten- tion_ not to include the new classification of control room supervisor in the unit or to bargain regarding it, Respondent called into Decatur the five men it had selected for the new positions -5 to get their acquiescence and to acquaint them with their new supervisors they would be in complete. charge of the control room, including units 4 and 5, and that they would be paid on a salary basis rather than hourly-the change involving an overall compensation increase for them. They were also given the opportunity at this time to either accept or reject the proffered positions with the understanding that if they rejected them they would remain in the employ of the Company and in the bargaining unit. According to the testimony of L. N. Talbott, Respondent's manager of personnel (which was substantially corroborated by Respondent's manager of power supply, T. W. Schroeder, and Charles Provan, manager of the Wood River plant), he read to the five employees (a) the written job description of the new position and (b) an excerpt from the Company's job description manual listing the supervisory duties 4 Respondent equates the reclassification of these employees to a supervisory position with the removal of work of a bargaining unit by subcontracting and contends that its obligation in this matter was fully discharged when it discussed it with the Union order the doctrine of Town & Country Mfg. Co., Inc., at al., 136 NLRB 1022 , affd. 316 F. 2d 846 (C.A. 5). Respondent is mistaken in its contention here. Town & Country is clearly inap- posite . While subcontracting is a mandatory subject of collective bargaining, the elim- ination of employees from a bargaining unit in which they are entitled by law to be certainly is not . Accordingly , the only way Respondent could avoid the continuing obli- gation to bargain about the wages , hours , and working conditions of these employees (if they are properly in the unit ) would have been by the complete agreement of everyone involved . Such agreement Respondent did not secure. 5 According to Plant Manager Provan's testimony , they were selected "on the basis of their abilities , experience ( and) seniority ." Presumably, all had worked in various posi- tions in the plant operations as had the two (William -Macbeth and Frank Nagy) who testified . Macbeth had worked as assistant turbine operator , assistant boiler switchboard operator . turbine operator, boiler operator , and relief operator. Nagy's experience was much the same. - -1106 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD common to all members of its supervisory staff. In addition to the specific duties and responsibilities covered by the job description, the "common supervisory duties" which were read included among ether things the duty to (a) "appraise and report .on the performance of assigned personnel and commend individual merit and per- formance; correct any laxity in performance; hear grievances and administer or recommend discipline"; (b) "approve or recommend changes in the status of assigned employees, including hiring, transfer, promotion, salary adjustment, demotion etc."; and (c) "assign work and follow its completion to assure proper execution according to standards, requirements and schedules." In addition to the foregoing, the employees were also told that as members of the supervisory staff they would "enjoy ... the benefits that apply to supervisory people that don't apply to others . . . as an example, (the) sick leave plan for supervisory people .... .. They were also told that they would be on 24-hour call and that they would be required to attend all management meetings at the Wood River plant.6 Nagy, who was called as a witness by the General Counsel, was vague as to his recollection but did not contradict any of the foregoing. He testified that after the meeting in Decatur he was told by the Wood River Assistant Plant Manager Mac- Fadden that although he did not have authority to hire or fire he did have authority "to send home anyone coming in ... dead drunk ... or defacing company property." Macbeth, also called in by the General Counsel, testified as to similar information from MacFadden. He further testified that no one told him that he would have authority to hire, fire, promote, reward, or discipline employees, but was not asked nor did he testify about authority to recommend any of the foregoing courses of action. He also testified that there was nothing said at the Decatur meeting about his authority over other employees. To the extent that this testimony might be interpreted as including recommendations about employees I do not credit it. l agree with Respondent that such a result would seem to be inherently incredible in view of Respondent's purpose to designate these people as supervisors and to explain their supervisory status in this meeting. The evidence shows that regardless what position may be considered in the opera- -tion of the Wood River plant both before and after the addition of unit No. 5 and -the various physical changes resulting from that addition,T whether it be switchboard operator, turbine operator, boiler operator, unit attendant, control room operator, control room supervisor, or their assistants, the duties all essentially i=nvolve the reading and watching of various voltages, temperatures, pressures, amperages, oil levels, or other physical data connected with the operation of the equipment, and the translation of such readings into the actions necessary to assure the proper func- tioning of the equipment and the plant. This requires special knowledge and expe- rience and for the most part is accomplished by the manipulation of switches, valves, and other controls. The evidence also shows that prior to the addition of unit No. 5 no matter what the operating position was, the incumbent had occasion to issue orders to and direct -the assistant working with him. Nevertheless, it also appears that the more familiar an assistant became with his job, the less occasion there was for issuing directions to him since his duties, like those of his operator, tended to become a matter of tech- nical routine. On the other hand there was always the possibility of an emergency arising (such as the malfunction of equipment) which might necessitate that the operator give specific directions or orders to his assistant.8 According to Respondent's evidence, when unit 5 goes into operation the control -room supervisors will have complete charge of the control room and direct respon- sibility for the operation of units 4 and 5.9 Although under the general supervision 6 tip to the time of the hearing each had attended at least one such meeting. 7 In the addition of unit 5 and the physical changes being made in connection therewith, -newer and more expensive communication devices were being installed as Well as com- puters which will "scan the various pressures, temperatures (and) flows through the plant," make simultaneous calculations as to the normalcy of the operation and in some instances ring an alarm if a piece of equipment is functioning abnormally. While the old plant had an alarm system the new one Will be "a little bit more sophisticated" and do "a little bit more." sAs testified by Nagy, when he was boiler operator an example of this would be mill trouble on a boiler. Because he had to "operate at the board" he would ask the assistant to "go down and check it." B Respondent maintains that "the Trial Examiner must base his decision not merely upon what the job is like now or what it has been like since February 3, 1964, but rather, -upon what he anticipates the job will be like when it finally does reach fruition." ILLINOIS POWER COMP-,k Y 1107 of the plant supervisor, they will also have direct authority over the personnel (five in number ) assigned to those units and the control room. The control room super- visors spend approximately 90 to 95 percent of their time in the control room and are able to communicate instructions to the unit attendants through a public address system, code call signals , and two-way radio communications. In the absence of the plant supervisor, the control room supervisor will be respon- sible for the entire output of the Wood River plant. This includes the direction and supervision of all operating personnel in the plant including the boiler, turbine, and auxiliary operators assigned to units 1, 2, and 3. It also includes the direction and supervision of all personnel assigned to the coal and yard, maintenance, and security sections of the plant on the normal second and third shifts, plus Saturdays, Sundays, and holidavs.10 ! 'hire conceding that the control room supervisors do direct other employees, make decisions, and "are probably also in charge of the control room," the General Counsel maintains in effect that the decision making here does not involve the kind of independent judgment which under the Act is an indicia of supervisory authority and contends that the directions and orders given by the control room supervisors have no more significance than "the directions given helpers and co-workers by any skilled mechanic or craftsman." The General Counsel further contends that the direct' ons or orders given by the control room supervisors to other employees are no different than the "orders which, as b er operators they had given as assistant boiler operators and auxiliary operators, and are no different from the orders that they gave as turbine operators to their assistant turbine operators, and are not differ- ent as switchboard operators they gave to other employees." Respondent claims that there are times when the operators of each major piece of equipment have occasion in the exercise of their independent 'l-figment to respon- sibly direct their assistants . bile implying that these operators may very well have been considered supervisors under the Act had Respondent chosen to confer super- visory status upon them, Respondent points out that there is a "vast difference" between their status and that of the control room supervisors upon whom Respond- ent did bestow such status. Pointing out that the control room supervisors' job combines into one position all of me supervisory duties formerly performed by the individual operators, l espon_ went claims that the control room supervisors have authority to "responsibiv direct others"- in the performance of their work, have been given the power to "e_ ectively recommend" changes in the status of employees under their supervision and "power to impose minor disciplinary sanctions" on them when occasion arises, and are required to exercise "independent judgment" in the performance of their duties. In addition, Respondent contends that the control room supervisors will be responsible for the safe and efficient operation of the new unit 5 and unit 4 which will provide approximately 45 percent of all of the electric power generated by Respondent's entire system. Moreover, there will be times when the control room supervisors will be responsible for the operation of the entire Wood River plant. Thus, Respondent maintains , "to say as the General Counsel does, that responsibility of this magnitude carries no opportunity for the exercise of independent judgment is incredible on its very face." In support of its position Respondent relies chiefly on Ohio Power Company v. N.L.R.B., 176 F. 2d 385 (C.A. 6), cert. denied 338 U. S. 899. In that case the court reversed the Board which had found in a situation quite similar to the one here that control room operators were not supervisors. The Ohio Power Company, 80 NLRB 1334. Whether or not, in view of the court's decision and the Board' s subsequent reliance on it,11 the Board would not now adhere to its original position on the facts in the 10 This personnel normally is not under the supervision of the plant supervisor. How- ever, since their regular supervisors work only on the day or first shift and do not work on Saturdays , Sundays, and holidays, the men under their supervision who do work on those occasions are placed under the temporary supervision of the plant supervisor and, in his absence , the control room supervisor. "Local 28 , International Organization of Masters , Mates and Pilots, AFL-CIO. at at. (Ingram Barge Coni.pany), 136 NLRB 1175: Capital Transit Co4npany, 114 NLR 617; Upper Lakes Shipping Ltd., 138 NLRB 221, 230 ; Salmiirs Oil Company, 139 NLRB 25, 35-; Air Control Products, Inc., 139 NLRB 607, 619; The Gem City Mattress Manufacturing Co., 136 NLRB 1317 , 1323; Alanao Express, Inc. and Alamo Cartage Company, 119 NLRB 6; Mardr il, Inc., 119 NLRB 1174, 1181; Taylor-O'Brien Corporation, 112 NLRB 1 ; The Eavey Company, 115 NLRB 1779, 1781. 212-809-66-vol. 155-71 1108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Ohio Power case as contended by Respondent is unnecessary to decide since I am of the opinion that the authority conferred by Respondent on its control room super- visors here exceeds the authority that the control room operators had in Ohio Power and as such meets the supervisory requirements of the Act. The only question then is whether or not the authority conferred by Respondent here is genuine and has been added in good faith 12 and not for the purpose of avoid- ing its bargaining obligation under the Act. There is no basis that I can find in this record to question Respondent's good faith. Indeed, the Union itself recognized the need for additional supervision here and proposed to Respondent that an additional sup erâ€¢.-isor be added to its work force. Accordingly, I find that the control room super vi: ors in question are supervisors within the meaning of the Act and as such are not part of the bargaining unit. Thus, Respondent's refusal to bargain with the Union regarding their wages, hours, and working conditions does not violate the Act.13 In view of the foregoing, I shall recommend dismissal of the complaint. CONCLUSIONS CF LAB' 1 . The Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent has not engaged in unfair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that the complaint herein be dis- missed in its entirety. 12 It is well settled that an "employer cannot make a supervisor out of a rank and file employee simply by giving the title and theoretical power to perform one or more of the enumerated supervisory functions. The important thing is the possession and exercise of actual supervisory duties and authority and not the formal title." Y.L.R.B. v. Southern Bieachery & Print Works, Inc., 257 F. 2d 235, 239 (C.A. 4), cert. denied 359 U.S. 911. 13In reaching this conclusion, I am fully aware of the highly automatic nature of the work here. I have also discounted to some extent the increase in the size and capacity of the plant in the light of the increased automation coming with the addition of unit -No. 5 including the use of computers. Nevertheless, in view of the overall value of the installa- tion here and of the terrific responsibility vested in those who run it, I can well under- stand why Respondent would want detailed and closer supervision of its operations closely aligned with the interests of management. Howard Disposal Corp. and Local 379, International Brotherhood of Teamsters , Chauffeurs, Warehousemen and Helpers of Amer- ica. Case No. 1-CA=S-464. ovenzbe Â° 23, 1965 DECISION N D ORDER On March 9, 1965 Trial Examiner. John F. Funike issued his Deci- lion in the above-entitled proceeding, finding that the Respondent had not engaged in unfair labor Practices as alleged and recommending dismissal of the com_pla.int in its entirety, as set forth in the attached Trial Examiner's Decision. Thereafter. the General Counsel and the Charging Party filed exceptions to the. Decision and supporting briefs, and the Respondent filed a reply brief. 155 NLRB No. 96.