Nebraska Power Co.

National Labor Relations Board - Board Decisions

Sep 23, 1940

27 N.L.R.B. 411 (N.L.R.B. 1940)

In the Matter of NEBRASKA POWER COMPANY and LOCAL UNION B-763,
INTERNATIONAL BROTHERHOOD or ELECTRICAL WORKERS, AFFILIATED
WITH THE AMERICAN FEDERATION OF LABOR
Case No. B-1916.-Decided September °L3,1940,
Jurisdiction : electric utility industry.
Practice and Procedure : petition dismissed where •no appropriate unit within
scope of petition and cross petition.
Kennedy, Holland, Delacy cQ Svoboda, by Mr. Yale'C. Holland
and Mr. Ralph E. Svoboda, of Omaha, Nebr., for the Company.
Mr. Robert K. Garrity, of Omaha, Nebr., for the I. B. E. W.
Mr. Raymond E. McGrath, of Omaha, Nebr., for the'Association.
Mr. Louis Colcin,'of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF( THE CASE
On February 1, 1939, International Brotherhood of Electrical'
Workers, Local Union B-763, herein called the I. B. E. W., filed with
the Regional Director for the Seventeenth Region (Kansas 'City,
Missouri) a'petition, and on June 12, 1939, and February 23, 1940,
respectively, amended petitions, alleging that a question affecting
commerce had arisen concerning the representation of employees of
Nebraska Power Company, Omaha, Nebraska, herein called the
Company, and requesting an investigation and certification of repre-
sentatives pursuant to Section 9 (c) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act. On May 23, 1940, the Na-
tional Labor Relations Board, herein called the Board, acting pur-
suant to Section 9 (c) of the Act and Article III, Section 3, of
National Labor Relations Board Rules and Regulations-Series 2,
as amended, ordered an investigation and authorized the Regional
Director to conduct it and to provide for an appropriate hearing
upon due notice.
On June-3 and 5, 1940, respectively, the Regional Director issued
a notice of hearing and an order of, postponement of hearing, copies -
27N.L.R.B.,No.88.
411
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of which were duly served upon the Company, the I. B. E. W., and
Independent Employees' Association of the Nebraska Power Com-
pany, herein called the Association , a labor organization claiming
to represent employees directly affected by the investigation. Pur-
suant to notice, a hearing was held on June 17, 18, 19, 20, and 21,
1940, at Omaha, Nebraska, before Daniel J. Leary, the Trial Exam-
iner duly designated by the Board. The Company and the Associa-
tion were represented by counsel , the I . B. E. W. by its representative;
all participated in the hearing . Full opportunity to 'be heard, to
examine and cross -examine witnesses , and to introduce evidence bear-
ing on the issues was afforded all parties . At the commencement
of the hearing the Trial Examiner granted a motion to intervene
filed by the Association. During the course of the hearing the Trial
Examiner granted several motions by the I . B. E. W. to amend its
petition . The Company filed an answer and amended answer to the
petition , as amended , and the Association filed a cross -petition and
answer during the hearing. During the course of the hearing the
Trial Examiner made several rulings on other motions and on ob-
jections to the admission of evidence . The Board has reviewed all
the rulings of the Trial Examiner and finds that no prejudicial errors
were committed . The rulings are hereby affirmed. After the close
of the hearing the 'I. B. E. W., the Association, and the Company
filed briefs which the Board has considered.
Pursuant to notice duly served upon all the parties, a hearing
was held for the purpose of oral argument before the Board on Sep-
tember 6, 1940, at Washington, D. C. The Company, the I. B. E. W.,
and the Association were ,represented by counsel and participated in
the argument.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Nebraska Power Company , a corporation organized pursuant to
the laws of the State of Maine and duly licensed to do business in the
States of Nebraska and Iowa, maintains its principal office in the
city of Omaha, Nebraska . It engages as a public utility corporation
in the generation of electric energy in the State of Nebraska and in
the distribution of such electric energy in the States of Nebraska
and Iowa. A majority of the Company 's outstanding common stock
is owned by the American Power and Light Company, a utility hold-
ing company , within the meaning of the Federal Public Utility Hold-
ing Company Act of 1935 , 49 Stat. 803 . ' Its preferred stock is held
by the public.
NEBRASKA POWER COMPANY 413
The Company is the sole public utility operating in- an area en-
compassing 53 communities, including the city of Omaha, and cover-
ing 2,000 square miles inhabited by 290,000 people within the State
of Nebraska, and encompassing 15 communities, including the city
of Council Bluffs, and covering an area of 500 square miles inhabited
by 60,000 people within the State of Iowa. To serve its customers
in the State of Iowa, the Company owns and operates an electric
distribution line commencing at its generating plant in the State
of Nebraska, crossing the Missouri River into Iowa, and there con-
necting with facilities owned and operated by the Company for
serving communities and individual customers within the State of
Iowa. During the year 1939, the Company's total output of electric
energy was 413,400,000 kilowatt hours.
Included among the Company's customers are the following rail-
roads: Union Pacific; Chicago, Burlington and Quincy' Chicago,
Rock Island and Pacific; Illinois Central; Chicago and Northwest-
ern ; and Chicago, St. Paul, Minneapolis, and Omaha. In 1937 the
energy supplied to these railroads within Nebraska'totaled 1,450,000
kilowatt hours, within Iowa, 450,000 kilowatt hours. The Omaha
and Council-Bluffs Street Railway, operating in and between the
cities of Omalia, Nebraska, and Council Bluffs, Iowa, is dependent
upon the Company for its supply of electric energy. Also numbered
among the Company's customers are numerous other organizations
engaged in interstate commerce, including Western Union Telegraph
Company; Postal Telegraph and Cable Company; Northwestern Bell
Telephone Company; Omaha Municipal Airport, a terminal for
interstate airlines; The Omaha World Herald, a daily newspaper
with an interstate circulation; The Omaha Grain Exchange, which
renders grain exchange quotations available throughout the country;
and several packinghouses and grain elevators. The Company also
supplies electric energy to the Federal Government for the operations
of its post offices in the area served by the Company. Each of the
customers named above uses' the electric energy supplied by the
Company for lighting and powering facilities operated in Nebraska
and Iowa in connection with their interstate activities.
As an adjunct to its business of distributing electric energy, the
Company engages in the sale of electric appliances at retail. Such
merchandise sales totaled $265,000 in 1939; $215,000 in Nebraska and
$50,000 in Iowa.
In 1939 the Company purchased equipment and supplies devoted
to the generation and distribution of electrical energy, valued at
approximately $1,620,000. Purchases made outside of the State of
Nebraska accounted for $720,000 of this amount. Ninety per cent
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of all supplies and equipment purchased by the Company originated
outside of the State of Nebraska, whether the purchase was made
outside of the State or through dealers located within the State.
The Company was required to pay, in addition to the amount listed
above" for purchase of supplies and equipment , $610,000 in freight
charges for the transportation of its coal supply.
Further evidence of the interstate nature of the Company 's opera-
tions is to be found in its handling of revenues . All,such revenues,
from whatever source derived , are eventually accumulated in ac-
counts maintained by the Company in Omaha, Nebraska.
IT. THE ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers, Local Union
B-763, is a labor organization chartered by International Brother-
hood of Electrical Workers, affiliated with the American Federation
of Labor. It admits to membership all employees of the Company,
excluding administrative , clerical , and supervisory employees.
.Independent Employees ' Association of the Nebraska Power Com-
pany is an unaffiliated labor organization admitting to its member-
ship all employees of the Company, excluding officers and officials.
III. THE APPROPRIATE UNIT
The I . B. E. W. urges that a l l employees of the Company in the
storeroom department , Omaha meter department , operating office
department , transportation department , Omaha line department,
Council Bluffs line department , out State line department, Omaha
underground department , substation department all divisions, Coun-
cil Bluffs substation department, Omaha service department , Council
Bluffs service department , North Nebraska Rural Division, South
Nebraska Rural Division , and Omaha Rural Division , excluding all
supervisors , clerical , stenographic, part-time, and casual employees,
timekeepers , parking-lot attendants , private chauffeurs, cafeteria em-
ployees, district managers , local managers , meter readers, home-
service advisors , salesmen , collectors , charwomen , and employees in
the production department , constitute a unit appropriate for the
purposes of collective bargaining . The Association , in its cross-
petition requests that all employees of the Company , including , cleri-
cal workers and salesmen , but excluding officers and executives, con-
stitute an appropriate unit. The Company urges the same unit as
the Association.
It does not appear from the record that the wages , hours of work,
or any of the other conditions of employment of the employees in
NEBRASKA POWER COMPANY 415
the unit urged by the I. B. E. W. vary in material degree from that
of the employees in the production department. A large degree of
interdependence and functional coherence exists between the produc-
tion 'and distribution departments and there is an interchange of
employees between these two departments. The I. B. E. W. sub-
niitted a proposed contract to the Company in 1937 asking for recog-
nition for all of the production and distribution employees. The
I. B. E. W. has continued its attempts to organize the production
employees and has as members employees in that department.
We find that the unit requested by the I. B. E. W., excluding as
ii, does production employees, is inappropriate for the purposes of
collective bargaining.
As pointed Out above, the Association contends that the clerical
employees and salesmen should be included in a unit with the pro-
duction and maintenance employees. The Association advanced in
support of its contention evidence that the clerical workers and sales-
men are paid on a monthly basis similar to that of the production
and maintenance employees and that they participate in the various
employee-benefit plans sponsored by the Company. However, these
contentions are not compelling. We see no reason for departing
from our usual practice of excluding office and clerical employees
and salesmen from a unit largely composed of production and main-
tenance employees. There are approximately 750 employees in the
unit urged by the Association, approximately 275 of whom are cleri-
cal employees or salesmen.
We find that the unit requested by the Association is inappropriate
for the purposes of collective bargaining.
IV. THE QUESTION CONCERNING REI:RESENTATION
Since the bargaining units sought to be established by the petition
and cross-petition are not appropriate as stated in Section III; above,
we find that no' question has been raised concerning the representa-
tion of employees of the Company in an appropriate bargaining
unit.
Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSION OF LAW
No question concerning representation of employees of Nebraska
Power Company, Omaha, Nebraska, in a unit which is appropriate
for the purposes of collective bargaining has arisen, within the mean-
ing of Section 9 (c) of the National Labor Relations Act.
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
- On the basis of the foregoing findings of, fact and conclusion of
law, the National Labor Relations Board orders that the petition
and cross-petition for investigation and certification filed by Inter-
national Brotherhood of. Electrical Workers, Local Union B-763,
and Independent Employees' Association of the Nebraska Power
Company, respectively, be, and they hereby are, dismissed.