Potomac Electric Power Co.

National Labor Relations Board - Board DecisionsMar 30, 1946

66 N.L.R.B. 1432 (N.L.R.B. 1946)

In the Matter Of POTOMAC ELECTRIC POWER COMPANY and ELECTRIC UTILITY FOREMEN'S A88ocrATION Case No. 5-1?-1970.-Decided March 30, 1946 ' Messrs. Joseph F. Castiello and H. W. Kelly, of Washington, D. C., for the Company. Messrs. Martin F. O'Donoghue and Lawrence J. Mills, of Washing- ton, D. C., for the Union. Mr. Nathan Saks, of counsel to the Board. DECISION AND DIRECTION AND ELECTION STATEMENT OF THE CASE Upon an amended petition duly filed by Electric Utility Foremen's Association, herein called the Union, alleging that a question affect- ing commerce had arisen concerning the representation of employees of Potomac Electric Power Company, Washington, D. C., herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due'notice before Earle K. Shawe, Trial Examiner. The hearing was held at Washington, D. C., on October 3, 11, 12, 18, and 19, 1945. The Company and the Union appeared and participated. All parties were afforded full opportu- nity to be heard, to examine and cross-examine witnesses, and to in- troduce evidence bearing on the issues. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded opportunity to file briefs with the Board. At the hearing and in its brief, the Company moved to dismiss the petition on the grounds that : (1) the supervisors whom the Union seeks to include in the unit are not employees within the meaning of the Act; and (2) the proposed unit is inappropriate for collective bargaining purposes because it consists of supervisors. The Trial Examiner referred this motion to the Board. For reasons stated hereinafter, the motion is hereby denied. Upon the entire record in the case, the Board makes the following : 66 N. L. R. B., No. 178. 1432 POTOMAC ELECTRIC POWER COJIPANI 1433 FINDINGS OF FACT 1. THE BUSINESS OF THE CO31PANY Potomac Electric Power Company, a District of Columbia corpo- ration, is engaged in the production, sale, and distribution of electric power in the District of Columbia and the surrounding area of Maryland. The Company furnishes electric power to various rail- roads, manufacturing and commercial enterprises, and private dwell- ings, and its gross sales therefrom are approximately $23,000,000 annually. The Company admits for the purpose of this proceeding that it is engaged in commerce within the meaning of the National Labor Re- lations Act. II. THE ORGANIZATION INVOLVED Electric Utility Foremen's Association is an unaffiliated labor or- ganization admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of certain of its supervisory em- ployees because it doubted that the Union represented a majority of the employees in an appropriate unit, and the matter had to be resolved by the Board. The initial argument urged by the Company in support of its mo- tion to dismiss the petition is that the supervisors involved in this proceeding are not employees within the meaning of the Act. The status of foremen and comparable supervisors under the Act has been considered in a number of Board and court decisions. Both the Board 1 and the courts 2 have concurred in holding that foremen have a dual aspect under the definitions of "employer" and "employee" contained in the Act. When he acts in the interest of his employer, a foreman is an "employer," but when he acts in his own interest, as when he seeks to better the terms and conditions of his employment, he is an "employee." There is no inconsistency in recognizing such 1 Matter of Soss Manufacturing Company, et at., 56 N. L. R. B. 348; Matter of Packard Motor Car Company, 61 N. L. It. B. 4, and 64 N. L R. B 1212; Matter of L A. Young Spring & Wire Corporation, 65 N. L. R B. 298; Matter of The B. F. Ooodrtch Company, 65 N. L. R. B. 294 ; and Matter of The Midland Steel Products Company, Parish & Bingham Division, 65 N. L. R. B. 997. 9N. L. R. B. v. Armour and Co., 154 F. (2d) 570 (C C A. 10) ; Jones & Laughlin Steel Corporation V. N. L. R. B., 146 F. (2d) 833 (C. C. A. 5) ; and N. L R. B. T. Skinner & Kennedy Stationery Company, 113 F. (2d) 667 (C. C. A 8) 1434 DECISIONS OF NATIONAL LABOR RELATIONS 13OAILD duality of status. Accordingly, we find that for the purposes of this proceeding the supervisors here involved are employees within the meaning of Section 2 (3) of the Act. A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of em- ployees in the unit claimed by it to be appropriate a 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 ((i) and (7) of the Act. 1V. THE .1PPROPRLITL UNIT The Union seeks a unit of all assistant general foremen, foremen, assistant foremen , special assignment men,4 power dispatchers, chief operators , chief inspectors , assistant chief inspectors, watch engineers, assistant watch erg ineers , administrative clerks , storekeepers , and as- sistant stock supervisors employed by the Company in its generat- ing, substation , substation construction , distribution . )peter, inotor transportation , and purchasing and stores departments , excluding all employees in a supervisory capacity of general foreman or above in rank, all production , maintenance , clerical , and technical employees, and all employees in a non supervisory capa city. The Company takes the primary position that the supervisory employees here involved are "employers " rather than "employees" within the meaning of the Act. and that tl,e proposed unit is inappropriate because it consists of superv .-orr, As an alternative , in the event the Board should establish a supervisory unit, the Comp uiy contends that assistant general foremen , chief inspectors , assistant chief inspectors , admin- istrative clerks , 011(1 storekeepers should be excluded from ally unit, and two separate un i ts one consistin1 of foremen and assistant fore- men. and another composed of power dispatchers . watch engineers, assistant w1 atch engineers , and chief operators , should be established.5 In support of its primary position , the Company attempts to dis- tinguish this case from the Packard case s on the ground that be- cause it is a public utility rather than a mass production industry, the supervisors involved in this proceeding have duties . powers. and responsibilities ,_> reaher than those of the supervisors in that case, and are , therefore . not li ce "traffic cops ." The issues raised by this position, and the argument in support thereof , were considered in 'The Field Pxanuncr iepoited that the Union submitted 90 authorization cards dated May, 194P, :u.,: that these a,e appioxunately 90 employees in the alleged appropriate unit 'The iecoid i.odicates that the Company his no employees %%lth this classification. 5The Company's position anth respect to the al,sistant stock supervisors is not clear. a Hatter of Packard Motor Oaf Company, sapia POTOMAC ELECTRIC POWER COIIPA .AT 1433 the recent Young and Goodrich cases.? We held in those cases, as we do here, that foremen and other employees in comparable super- visory positions are "employees" within the meaning of Section 2 (3) of the Act; that, as "employees," they are entitled to be placed in some appropriate unit under Section 9 (c) ; that the type of industry in which they are employed is immaterial; and that the nature of their duties and responsibilities is relevant only insofar as it bears on the question of properly grouping them for collective bargaining purposes. Accordingly, there remains for consideration the sole is- sue as to whether the single unit proposed by the Union represents a proper grouping of the Company's supervisory employees, or whether, as alleged by the Company, there should be two separate units, with certain supervisors sought by the Union excluded from any unit. The unit sought by the Union consists of the lower levels of super- visory employees in those departments of the Company which handle the production, maintenance, and distribution of electricity and elec- trical equipment. The production, maintenance, and distribution operations are divided into four large departments, viz, substation construction, generating, elect rival system, and pi ciism and stores all of which are under the general supervision of the vice president and general manager. Each of these departments is headed by a gen- eral superintendent or person with equivalent status ha's ing broad authority over the operation of the department. and who reports directly to the vice president and general manager. Responsibility for the immediate supervision of the department lies in the next lower level, the department superintendent, who has an assistant department superintendent to aid him and substitute for him in his absence. The generating department. however, is subdivided into two smaller departments, each of which has a department super- intendent and an assistant department superintendent," and the elec- trical system is subdivided into four smaller departments with a similar arrangement, except that, because of its extensive opera- tions, the distribution department of the electrical system is further subdivided into five divisions, each of which has a general foreman who has duties and authority comparable to those of an assistant department superintendent. It is clear that all categories thus far described are policy-making supervisors with broad discretionary authority, including the authority to hire and discharge, and we shall, therefore, exclude them from the unit in accordance with the desires of both parties. The next and lowest levels of supervision are foremen and assistant foremen, and other categories on similar ° Matter of L. A Young Ap>ang & Ware Corporution, supra; Hatter of The B F Good- rioh C, onipaii ii , sup) q. One of these assistapt department superintendent positions is now vacant.. 1436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD levels with different designations , and it is this group which the Union seeks. The record indicates that the duties and authority of all the em- ployees in the unit proposed by the Union are substantially similar. Thus, none of these employees actually determines policy 9 or has the effective power to hire or discharge rank and file employees. Their authority with respect to such employees is limited to recommend- ing disciplinary action, and effecting temporary suspension pending a determination of the matter by higher authority. 10 Moreover, none of the employees in the proposed unit has the authority to change the status of any other supervisory employee, or effectively recom- mend such action. With the exception of the assistant general fore- men, who exercise a limited degree of supervision over the other foremen in their respective departments,ll the chief function of these employees is that of supervising and directing the work of the rank and file employees under their jurisdiction, in the performance of which they exercise very little, if any, independent discretion. It appears further that there is a close operational interrelation between the various departments in which they work which brings them into frequent contact, and that the proposed unit coincides substantially with the unit pattern which we have established with respect to rank and file employees in the electric utility industry.12 In view of the foregoing, we are of the opinion that there is a community of inter- est among the supervisory employees in the unit sought which would best be served by the establishment of a single unit . We do not agree with the Company's alternative position, for which it stated no reasons either at the hearing or in its brief, that two separate units, one consisting of foremen and assistant foremen , and another com- posed of power dispatchers, watch engineers, assistant watch engi- neers, and chief operators , should be established. The evidence 9In May 1945, the Company established a so-called Foremanship Conference Program for its supervisory employees at all levels in all departments. The purpose of the pro- gram is the periodic discussion by all levels of supervision of their operational and administrative problems. The Company introduced evidence of this program apparently for the purpose of showing that the supervisors in the unit sought are policy-making people, and, therefore, not entitled to representation under the Act. The record indicates that the first meeting under the program was held in May and the second in July, that proposed changes in the contract covering the rank and file employees were discussed at the July meeting, but that there never had been a meeting prior to that at which the supervisors in the proposed unit had been consulted on a rank and file contract. Aside from the fact that the program apparently represents a recent innovation inaugurated subsequent to the organization of the supervisory employees , the record Indicates that final decision on both labor and operational policy still vests In top management, and that the employees in the unit sought play only a minor role in that connection. More- over, in view of the Company' s size and Integration , we are unable to conclude that because of their recent participation in such a, program all supervisors of the Company at all levels have been converted into policy- makers. 20 The record indicates that the disciplining of rank and file employees is usually done by the department superintendent. n The authority of assistant general foremen is discussed in greater detail hereinafter. 12 See, e.g., Matter of Boston Edison Company , 51 N. L R. B. 118. POTOMAC ELECTRIC POWER COMPANY 1437 indicates that the employees in the latter group have duties and authority closely akin to those of the foremen 'and assistant fore- men, and that the operational interrelation which exists among the various departments engaged in production, maintenance, and dis- tribution extends also to the departments in which the power dis- patchers, watch engineers , assistant watch engineers, and chief operators work. Accordingly, we shall group foremen, assistant fore- men, power dispatchers, watch engineers, assistant watch engineers, and chief operators in a single unit. The Union and the Company are also in disagreement with respect to the following categories, all of whom the Union would include in its proposed unit, and the Company, in its alternative position, would exclude from any supervisory unit : Assistant general foremen: As indicated above, the distribution department of the electrical system is subdivided into five divisions, each of which has a general foreman who is comparable to an as- sistant department superintendent. In four of these five divisions the Company employs one to three assistant general foremen who are next in the line of supervision. The Company contends that these employees have functions and duties that place them on a level with general foremen, and that they, therefore, should be excluded from any unit. The assistant general foremen aid the general fore- men in the operation and administration of their respective divisions, and also supervise to some extent the work of foremen under them. However, the evidence indicates that they do not have the authority to hire or discharge the foremen, or effectively recommend such ac- tion . Moreover , their authority to discipline rank and file employees is no greater than that of the foremen, being limited to making rec- ommendations to the department superintendent. The record also shows that the assistant general foremen are placed on the same supervisory level as foremen in other departments on both union and company organization charts. Thus, while there is some dis- parity between the duties and authority of assistant general fore- men and foremen , the only marked difference would seem to be the power vested in the assistant general foremen to exercise a degree of supervision over the foremen. We do not believe that this fact alone is of sufficient importance to warrant the exclusion of the as- sistant general foremen. A composite picture of the duties and authority of the assistant general foremen indicates that they are more closely akin to the foremen than to the general foremen. Ac- cordingly, we shall include assistant general foremen in the unit. Per diem foremen: The Company employs approximately 10 so- called per diem foremen in the distribution department who, unlike the other employees in the proposed unit, are paid on an hourly 1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rather than on a salary basis. The Company contends that they should be excluded from any supervisory unit on the ground that they are not bona fide foremen but rather leadmen, and, as such, are included in the contract covering the rank and file employees of the Company.13 The Union claims that their duties and functions are similar to the salaried foremen and assistant foremen, and they, therefore, should be included in the supervisory unit. The record indicates that the per diem foremen are actually leadmen in charge of small gangs of employees, and that they have considerably less authority than foremen or assistant foremen. Moreover, inasmuch as they are leadmen, these employees are embraced by the contract covering the rank and file employees.14 In view of these facts, we shall exclude them from the unit. Administrative clerks: In each of the departments embraced by the Union's petition, except the motor transportation and purchasing and stores departments, there is a clerical force headed by an ad- ministrative clerk.15 The Company would exclude administrative clerks from any unit on the grounds that they are confidential em- ployees, and that there is no community of interest, work, problems or responsibilities between them and any other supervisors in the claimed unit. The administrative clerks are in the nature of chief clerks who exercise general supervision over the rank and file clerks in much the same planner as foremen exercise supervision over the rank and file employees under them. Like the foremen, they work under the direction of the department superintendent and are directly re- sponsible to him. Their disciplinary authority with respect to the rank and file employees is also similar to that of the foremen in that it is limited to effecting temporary suspension and making recom- mendations to the department superintendent. The administrative clerks are charged with the responsibility of keeping all clerical records necessary for the operation of their respective departments. The basis for the Company's position that these employees are confi- dential is that they have access to the personnel records of both rank and file employees and the other supervisors in their depart- ments, and also that they have custody of large sunis of money with which to pay freight bills. While the evidence indicates that the administrative clerks do have access to the personnel records of all employees in their respective departments, including those of their fellow supervisors, and also indicates that the personnel records of the rank and file employees include disciplinary matters, it appears 13Electirc Utilities Employees' Association iepresents all non-supervisory employees of the Company. 14Leadmen are included in the contract covering the rank and file employees. 1s Each of the two generating stations in the generating department has such a force headed by an administrative clerk POTOMAC ELECTRIC POWER COMPANY 1439 that the alleged confidential matter in the supervisors' records con- sists solely of records of their salaries. We do not consider the knowledge that the administrative clerks have of the salaries of their fellow supervisors of such a confidential nature as to make their relationship with the latter group of employees a confidential one requiring their exclusion from a unit including the latter group. Salaries are generally a matter of common knowledge among em- ployees of substantially similar status. Moreover, the administrative clerks are in no different position from the other supervisors in their departments with respect to the rank and file personnel records, in- asmuch as the other supervisors also have access to such records. Nor do we consider their custody of large sums of money with which to pay freight bills to be either of such a confidential or top managerial nature as to warrant the exclusion of the administrative clerks from the unit. Finally, the record indicates that there is a community of interest , work, problems, and responsibilities between the adminis- trative clerks and the other supervisors in the proposed unit. As already indicated, their duties and authority are substantially similar to those of foremen. Moreover, they are located and perform their work in production, maintenance, and distribution departments, and their work is confined to the clerical records necessary for the opera- tion of their particular departments. It appears further that they have considerable contact with the foremen in their respective de- partments in the exchange of operational and administrative records. In view of the foregoing, we shall include the administrative clerks in the unit. Chief inspector and assistant chief inspector: These two employees are in the shops and special services division of the distribution de- partment. The Company claims that they should be excluded from the supervisory unit because they have the same status as leadmen, and, as such , are included in the contract covering the rank and file employees .16 These employees are responsible for investigating cus- tomer complaints , cable trouble and other miscellaneous work re- quiring the testing of electrical equipment and apparatus. They supervise the work of about 7 men and report directly to the gen- eral foreman of the division. Although they spend about 20 percent of their time in doing manual work, their chief function is that of supervising the men under them. The evidence indicates that they do not have the authority to make disciplinary recommendations with respect to the rank and file employees, as do the other super- visors in the proposed unit, but they are consulted about the work of their subordinates , and the chief inspector substitutes for the gen- -As noted above, leadmen ame included in the Contiact eoveiing the lank and file employees, 1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD eral foreman of the division in the latter's absence. It appears further that, unlike the per diem foremen, these 2 employees are in- cluded in the Company's list of supervisory personnel, and that in its organization chart of supervisory employees the Company places the chief inspector and the assistant chief inspector on the same levels as the foremen and assistant foremen of the division, respectively, with leadmen in other divisions of the department being placed at the next lower level as non-supervisory employees. In view of the fore- going, we are of the opinion that the chief inspector and assistant chief inspector are supervisory employees on levels comparable to those of foremen and assistant foremen. We shall, therefore, include them in the unit. Storekeepers and assistant stock supervisors: The Company em- ploys two supervisory employees in its purchasing and stores de- partment who are classified as storekeepers. Each one is in charge of a company warehouse, and is responsible for the operation of the warehouse and large stocks of equipment that are stored in it for use throughout the Company's operations. The Company contends that the storekeepers should be excluded from any supervisors' unit because they are on the same level as the assistant general foremen, and because their duties are dissimilar from those of any other super- visors in the proposed unit. However, the company job description of these employees indicates that their duties and authority are comparable to those of foremen in other departments. They super- vise the rank and file employees in their respective buildings and keep requisition records. Like the foremen, they have the authority to effect suspensions of rank and file employees, with recommenda- tions for disciplining. They report directly to the purchasing agent, who is the superintendent of the department, and who has an as- sistant purchasing agent under him acting as assistant department superintendent. Moreover, unlike assistant general foremen who, as noted above, exercise a degree of supervision over foremen, these employees have no foremen under them. One storekeeper has lead- men under him, and the other two assistant stock supervisors,t" the latter acting as assistants in the same manner as assistant foremen aid foremen. It thus appears that the storekeepers and assistant stock supervisors have duties and authority substantially similar to those of foremen and assistant foremen, respectively. Accordingly, we shall include them in the unit. We find that all assistant general foremen, foremen, assistant fore- men, power dispatchers, chief operators, chief inspectors, assistant chief inspectors, watch engineers, assistant watch engineers, admin- istrative clerks, storekeepers, and assistant stock supervisors em- 17 As noted above, the Company 's position with respect to the assistant stock super- visors is not clear. POTOMAC ELECTRIC POWER COMPANY 1441 ployed by the Company in its generating, substation, substation construction , distribution, meter, motor transportation, and purchas- ing and stores departments, excluding all per diem foremen, consti- tute a unit appropriate 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 em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Election herein , subject to the limitations and additions set forth in the Direction. 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 Re- lations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Potomac Electric Power Company, Washington, D. C., 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 direction and super- vision of the Regional Director for the Fifth Region, acting in this matter as agent for the National Labor Relations Board, and sub- ject to Article III, Sections 10 and 11, of said Rules and Regulations, among employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately pre- ceding the date of this Direction, including employees who did not work during said pay-roll period because they were ill or on vaca- tion or temporarily laid off, and including employees in the 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 Electric Utility Foremen's Association, for the purposes of collective bargaining. MR. GERARD D. REILLY, dissenting : For the reasons stated in my dissenting opinions in Matter of Packard Motor Car Company? I amn constrained to dissent from the majority opinion in this case. 1 Matter of Packard Motor Car Company, 61 N. L. R. B. 4; 64 N. L. R. B. 1212. 686572-46-92