Kentucky Utilities Co.

National Labor Relations Board - Board Decisions

Dec 10, 1943

53 N.L.R.B. 1273 (N.L.R.B. 1943)

In the Matter of KENTUCKY UTILITIES COMPANY and LOCAL 224,
UNITED CONSTRUCTION WORKERS, AFFILIATED WITH U . M. W. A.
Case No. 9-R-1215.-Decided Decembe' 10, 1943
Messrs. William H. Townsend, Gayle A. Mahoney, and E. W.
Brown, of Lexington, Ky., and Mr. Logan Patterson, of Pineville,
Ky., for the Company.
Mr. Harry Livingston, of Harlan , Ky., for the Union.
Miss Melvern R. Krelow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon amended petition duly filed by Local 224, United Construc-
tion Workers, affiliated with U. M. W. A., herein called the Union,
alleging that a question affecting commerce had arisen concerning
the representation of employees of Kentucky Utilities Company, Lex-
ington, Kentucky, herein called the Company, the National Labor
Relations Board provided for an appropriate hearing upon due notice
before William I. Shooer, Trial Examiner. Said hearing was held
at Pineville, Kentucky, on November 10, 1943. The Company and
the Union appeared, participated, and were afforded full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings made
at the hearing are free from prejudicial error and are hereby affirmed.
At the hearing the Company filed a motion to dismiss the petition
on the ground that the unit sought herein by the Union is inappro-
priate. The Trial Examiner reserved ruling. For reasons herein-
after set forth, the motion is hereby denied. After the hearing was
concluded, the Company filed a motion to correct the transcript in
certain minor particulars. The Union objected on the ground that
the motion was untimely filed. We find the objection to be without
merit. The motion is hereby granted. All parties were afforded
opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
53 N. L . R. B., No. 232.
1273
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Kentucky Utilities Company, a Kentucky corporation, is engaged
in supplying electric, gas, water, ice, and bus service in the State of
Kentucky. Old Dominion Power Company, Dixie Power & Light
Company, and South Fulton Light & Power Company are subsidi-
aries of the Company. The Company's power lines extend into the
State of Tennessee ; Old Dominion Power Company's lines extend
into the State of Virginia ; Dixie Light and Power Company services
the eastern portion of the State of Tennessee, and South Fulton Light
and Power Company services the western portion of the State of
Tennessee. During 1942, the total sales of electric energy was 588,-
540,000 kilowatt hours, of which 73,415,000 kilowatt hours were de-
livered to points outside the State of Kentucky.
H. THE ORGANIZATION INVOLVED
Local 224, United Construction Workers, is a labor organization
affiliated with the United Mine Workers of America, admitting to
membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On August 21, 1943, the Union notified the Company that it repre-
sented a majority of the Company's employees in the unit it claimed to
be appropriate and requested a conference for the purpose of nego-
tiating a contract. The - Company refused to recognize' the Union
until certified by the Board.
A statement of a Field Examiner of the Board introduced in evi-
dence at the hearing, indicates that the Union represents a substantial
number of employees in the unit it claims to be appropriate.'
We find that a question affecting commerce has arisen concerning the
representation of employees of the Company, within the meaning of
Section 9 (c) and Section 2 (6) and (7) of the National Labor Rela-
tions Act.
IV. THE APPROPRIATE 'UNIT
The Union contends that all production and maintenance employees
in the Mountain Division of the Company,, including all working
i The Field Examiner reported that the Union presented 94 cards, 93 of which bear ap-
parently genuine signatures . Of the 94 cards submitted , 92 bear the names of persons whose
names appear on the Company's pay roll of October 21, 1943, which contained the names
of 166 persons in the unit hereinafter found to be appropriate . The 92 cards were dated
as follows : 88 between July and October 1943; 4 undated.
"Employees of Old Dominion Power Company which, as heretofore stated, is a subsidiary
of the Company, and employees of Old Dominion Ice Corporation , which is owned by Old
Dominion Power Company, are considered part of the Mountain Division , and are under the
jurisdiction of the Division manager.
KENTUCKY UTILITIES COMPANY 1275
foremen, but excluding superintendents, office and clerical employees,
military guards, and any person having the authority' to hire and
discharge, constitute an appropriate unit.3 The Company generally
takes no position with respect to the specific composition of the unit,
but maintains that only a system-wide unit is appropriate.
In 1938, the Board found appropriate a unit consisting of all em-
ployees in the gas, water, electric, and ice departments, of the Middle
West Corporation, Kentucky Utilities Company, Kentucky Power &
Light Company, and Old Dominion Power Company, with specified
exclusions, and directed an election therein.4 This unit was the one
sought by the Union, which, as here, was the only labor organization
involved. The Union lost the election. The Union's contention herein
is that the Mountain Division is an appropriate collective bargaining
unit because it is substantially independent of the other divisions and
because the Union, which is the only organization involved, has dis-
closed evidence of substantial membership only in the Mountain
Division.
The Company's main office is located in Lexington,. Kentucky, where
its general policies are determined and the executive control to the
Company is centered. For managerial and operating purposes, the
Company's system is separated into 5 geographical divisions with the
number of employees in the various divisions ranging from 152 to 270.
Each division has ar division manager as its administrative head.
Within each division are districts, each district having an administra-
tive head known as a district or local manager. The various opera-
tions within the division are in charge of certain supervisory officials.
The division managers , before hiring or discharging employees within
the divisions, must secure authorization from the main office in Lexing-
ton. In emergencies, the division managers may hire people to work
in their divisions on a temporary basis without first obtaining such
authorization. 'All employees are engaged in similar duties through-
out the system. The wages and hours of work' of all employees
throughout the system are similar. While there are occasional trans-
fers of employees from one division to another, the duties, responsi-
bilities, and functions of employees within each division are principally
confined to that division.
In our Decision issued January 6, 1943,5 affecting the Central Divi-
sion of the Company, the facts of which are similar to those contained
herein, we stated, "that although a system-wide unit, as urged by the
Company, would not be inappropriate, the record shows that the
' The Union desires the exclusion of persons who are employed by various coal companies
and who engage in emergency work only for the Company . They are carried on a temporary
pay roll of the Company. We conclude that these employees are temporary employees and
accordingly are not eligible to vote in the election hereinafter directed.
* See Matter of The Middle West Corporation et at., 10 N. L R. B 618.
6 Matter of Kentucky Utilities Company, 46 N. L . R. B. 818.
1276 DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
employees in the Central Division are an integrated and identifiable
group and can effectively function as a unit for the purposes of collec-
tive bargaining, pending more complete organization in the other
divisions." No convincing argument has been presented in the instant
proceeding which would impel us to_ depart from such finding. We
find, accordingly, that a unit limited to employees in the Mountain
Division is appropriate. Our finding in this respect, however, does
not preclude a later determination that a larger unit is appropriate
when effective organization has extended to employees in other parts
of the Company's system e
The Union contends that all working foremen should be included in
the unit. The following classifications appear to fall within that
category:
Electrical foreman, Pineville District: This employee is in charge
of the maintenance of electrical equipment. He has from two to three
helpers with whom he works. He does not have the authority to hire,
discharge, promote, or discipline such helpers. We find that the
electrical foreman is not a supervisory employee; we shall include him
within the unit.
Service foremen: There are seven service foremen in the division,
who are senior servicemen in the districts where they are employed.
They perform service work, and direct the work of from one to four
servicemen. Since it does not appear that they have authority to
effect changes in the status of the servicemen under their direction, we
shall include them within the unit.
Superintendent of ice plant-Middlesboro District: The ice plant
employs five employees; the superintendent works to the same extent
as do the other four employees. However, he is in charge of the plant
and, so far as the record shows, his authority to effect changes in the
status of the employees under his direction is no less than that exercised
by other superintendents in the division who concededly are super-
visory employees. We shall exclude him from the unit.
Line Foremen-London and Norton Districts: These employees
have charge of crews of three and four employees, respectively, and
perform duties which are substantially the same as those of the crew
members. The record indicates that the only difference between these
line foremen and other employees who have the same classification
and who are conceded to be supervisory employees, is that because of
the small size of their crews they work with the linemen under their
supervision. We find that the two line foremen in question are super-
visory employees, and we shall exclude them from the unit.
9 Matter of Southern California Gas Company, 31 N. L.M. B. 461 ; Matter of Oklahoma Gas
eG Electric Company, 42 N. L. R. B. 750. Cf. Matter of Pacific Gas and Electric Company,
44 N. L. R. B. 665.
KENTUCKY UTILITIES COMPANY 1277
At the hearing the Union moved to amend its petition to exclude
the six guards employed by the Company. Since it appears that they
are members of the auxiliary military police, we shall in accordance
with our usual policy,' exclude them from the unit.
We find that all employees of the Company, including employees
of Old Dominion Power Company and Old Dominion Ice Corpora-
tion, in the Mountain Division, the electrical foreman-Pineville Dis-
trict, and the service foremen, but excluding all office and clerical
employees, militarized guards, the superintendent of the ice plant-
Middlesboro District, line foremen-London and Norton Districts,
and all other supervisory employees with authority to hire, promote,
discharge, discipline, or otherwise effect changes in the status of
employees, or effectively recommend such action, constitute an ap-
propriate unit for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of our Direction of Elec-
tion, subject to the limitations and additions set forth therein.
DIRECTION OF ELECTION
By virtue of and pursuant- to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Kentucky Utilities
Company, Lexington, Kentucky, at its Mountain Division, an election
by secret ballot shall be conducted as early as possible, but not later
than thirty (30) days from the date of this Direction, under the direc-
tion and supervision of the Regional Director for the Ninth Region,
acting in this matter as agent for the National Labor Relations
Board,,and subject to Article III, Sections 10 and 11, of said Rules
and Regulations among the employees in the unit found appropriate
in Section IV, above, who were employed during the pay-roll period
immediately preceding the daf+e of this Direction, including employees
who did not work during said pay-roll period because they were ill
or on vacation or temporarily laid off, and including employees in the
4 See Matter of Dravo Corporation, 52 N. L. R. B. 322.
559015-44-vol. 53--82
i
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
armed forces of the United States who present themselves in person
at the polls, but excluding those employees who have since quit or
been discharged for cause and have not been rehired or reinstated
prior to the date of the election, to determine whether or not they
desire to be represented by Local 224, United Construction Workers,
affiliated with U. M. W. A., for the purposes of collective bargaining. .
MR. GERARD D. REILLY took no part in the consideration of the
above Decision and Direction of Election.