Salt River Valley Water Users' Association

National Labor Relations Board - Board Decisions

Jun 12, 1973

204 N.L.R.B. 83 (N.L.R.B. 1973)

SALT RIVER VALLEY WATER USERS 83
Salt River Valley Water Users' Association and Inter-
national Brotherhood of Electrical Workers, Local
Union No. 266, AFL-CIO. Case 28-CA-2408
June 12, 1973
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
On January 18, 1973, Administrative Law Judge
Jerrold H. Shapiro issued the attached Decision in
this proceeding. Thereafter, the Respondent, the
Charging Party and the General Counsel filed excep-
tions and supporting briefs, and the Respondent filed
a brief in response to the General Counsel's excep-
tions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions I of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Salt River Valley Water
Users' Association, Phoenix, Arizona, its officers,
agents, successors, and assigns, shall take the action
set forth in the recommended Order.
DECISION
STATEMENT OF THE CASE
JERROLD H. SHAPIRO, Administrative Law Judge: Upon a
charge filed by the Union named above on July 30, 1971,
and amended on September 8, 1971, and October 26, 1972,
the General Counsel of the National Labor Relations Board
on June 1, 1972, issued a complaint and on November 2,
1972, issued a first amended complaint against Salt River
Valley Water Users' Association, herein called the Respon-
dent or the Association. The complaint as further amended
at the hearing alleges that the Respondent has engaged in
unfair labor practices, within the meaning of Section 8(a)(1)
and (5) of the National Labor Relations Act, as amended.
The Respondent filed an answer denying the commission of
the alleged unfair labor practices. A hearing was held on
November 28 and November 29, 1972.
Upon the entire record in the case and from my observa-
tion of the demeanor of the witnesses, and having consid-
ered the posthearing briefs, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
Salt River Valley Water Users' Association, the Respon-
dent, an Arizona corporation with its principal place of
business in Phoenix, Arizona, is engaged in the operation
and maintenance of a water irrigation system in the Salt
River Valley located in the State of Arizona. Respondent
annually receives gross revenues in excess of $250,000 and
annually purchases goods and materials valued in excess of
$50,000 which are transported and delivered to its place of
business in Arizona directly from points located outside
Arizona.
Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers, Local
Union No. 266, AFL-CIO, the Union, is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
1 Because neither the Charging Party nor the Respondent desires to utilize
their agreed -upon contractual grievance arbitration procedure to resolve
their dispute herein , we, unlike the Administrative Law Judge , find it unnec-
essary to consider whether we should defer to such procedure . Accordingly
we find it unnecessary to pass on the comments of the Administrative Law
Judge concerning Collyer Insulated Wire, 192 NLRB 837, and related cases.
Because the remedy includes an order to Respondent to bargain with the
Union on behalf of the ATWM 's, we also find it unnecessary to pass on the
allegation that Respondent violated Section 8(a)(5) of the Act by promoting
radio communications operators to assistant transmission water masters,
since the remedy would not be substantially different. Chairman Miller,
however, would expressly adopt the findings and conclusions of the Adminis-
trative Law Judge on this issue and would, in accord with his recommenda-
tion, dismiss this allegation.
The ultimate issues presented are: (1) Whether with no
prior notice to the Union and without affording the Union
an opportunity to negotiate, the Respondent unilaterally
eliminated jobs or work from the bargaining unit repre-
sented by the Union. Specifically, did Respondent unilater-
ally promote or transfer a group of bargaining unit
employees classified as radio communication operators,
herein called RCO's, out of the unit into new positions,
classified as assistant transmission water masters , herein
called ATWM's; (2) whether the ATWM's are statutory
supervisors. If they are not statutory supervisors, are they
84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
part of the bargaining unit represented by the Union, and,
if so, did Respondent by insisting that the ATWM's be
excluded from the bargaining unit violate the Act; and (3)
whether the Board pursuant to its Collyer doctrine should
defer from ruling on this dispute because the parties have
voluntarily agreed to resolve disputes such as this using their
grievance-arbitration procedure.
B. The Alleged Unilateral Conduct
Respondent since approximately 1917 has operated an
irrigation system in Arizona, known as the Salt River Pro-
ject, which services over 250,000 acres of land populated by
approximately 1 million people. For many years the opera-
tion of the Salt River Project was almost entirely dependent
on the services of zanjeros, Spanish for "ditch rider," who
delivered the water to users and who performed duties es-
sential to the transmission of the water, i.e., opening and
closing the irrigation canal gates and supplying information
about the level and location of water. As the area encom-
passed by the Salt River project increased in population size
and density it became more and more difficult to operate
the irrigation system safely, efficiently, and economically
relying solely upon the zanjeros. In the late 1950's or early
1960's Respondent studied the possibility of transmitting
water by remote control. In 1962 a Motorola automatic
control unit was installed in the Association 's dispatch cen-
ter to operate the gates located at one site in the system.
When it proved impossible to connect other sites to the
Motorola equipment, Respondent made further studies to
determine if it was possible to fully automate its entire
transmission system using basically one remote control unit.
By about 1965 Respondent concluded this was possible and
feasible and commenced to develop specifications and se-
lect priority locations . Finally, early in 1970 the Respondent
took the first step in its program of moving the water
through its entire system by remote control. It installed in
its dispatch center a data controller and an operating con-
sole, herein referred to collectively as the console and com-
monly known as the "supervisory controls." Respondent as
time passed connected more and more sites to the remote
control console. Phase I of the Association's program of
complete automation was completed in the middle of 1970
with 11 sites connected to the console. Phase II, which
started in 1970, was completed in August or September 1971
with 17 additional sites connected to the console. Phase III
was completed in May 1972 with 18 more sites connected
to the console. Phase IV is currently under way and when
completed will place the entire Salt River project under
remote control with respect to the transmission of water.
The completion of Phase II placed two of the six irrigation
canals in the Salt River project under remote control. At the
time of the hearing , November 1972, approximately 50 per-
cent of the project's sites were being operated by remote
control.
The remote control console, described above, was in-
stalled in the Association's dispatch center. Employed at
this location were approximately seven radio communica-
tion operators (RCO's) and two transmission water masters,
herein called TWM's. The zanjeros, described earlier, who
worked in the field received orders for water from users
demanding delivery for a specific day. These orders were
given to the TWM's who computed the demand for the Salt
River project for a 24-hour period. They figured the quanti-
ty of surface water flow that would have to be released from
the dams and the deep well pumps that would have to be
activated to augment the surface supply. They also sched-
uled the flow of water through the entire system. The RCO's
using radio-telephone equipment, transmitted and received
messages to and from customers, management, and employ-
ees and in particular relayed instructions regarding the
transmission and delivery of water from the TWM's to the
zanjeros and from the TWM's to the distribution water
masters , the persons who supervised the zanjeros. Prior to
May 1971 and commencing with the installation of the new
remote control equipment, the RCO's and the TWM's were
trained by engineers to operate this equipment and in fact
did operate the equipment prior to May 1971. Also, the
RCO's were trained by the TWM's to schedule water. For
example , they were instructed how long it takes water with
a certain size head to get between certain points in the
irrigation system, and instructed about the different prob-
lems to look for which affect the movement of water. The
solution of some of these problems is aided by the use of
manuals or tables, but, to a large extent, it is more a matter
of experience or, as one witness testified, it is more a matter
of "know how."
The Union has represented a unit of Respondent's pro-
duction, maintenance, and clerical employees for at least 30
years. It apparently was originally certified by the Board.
See Salt River Valley Water Users Assn., 32 NLRB 460
(1941). At the time of the hearing the unit numbered be-
tween 350 and 400 employees. The unit included the RCO
classification for at least 20 years. The zanjeros have appar-
ently always been unit employees but the TWM's and the
distribution water masters have not been included in the
unit. When the Respondent installed and operated its re-
mote control console the existing collective-bargaining con-
tract between the Union and Respondent covering the unit
employees was effective from April 1, 1968, to March 31,
1971. The Union during the term of this contract knew that
the Association planned to automate its system of moving
water, and knew that the Association in connection with
this plan was currently training and changing the job duties
of the RCO's. The Union did not object to this but believed
and took the position that the added responsibilities entitled
the RCO's to more money.
It is in this context that in January 1971 negotiations
began for a new collective-bargaining agreement to succeed
the one scheduled to terminate on March 31, 1971. At the
start of negotiations the Respondent proposed that the
RCO's be excluded from the coverage of the collective-
bargaining agreement. The Union rejected this proposal
and demanded that the RCO's along with the other unit
employees be given an across-the-board raise in pay, and
that their labor grade be moved from the clerical to the
contractual shop and field classifications which paid the
higher rates of pay. It was the Union's belief, expressed to
the Association's negotiators, that with the added workload
and responsibilities the RCO's deserved to be reclassified.
By April 27, 1971, 14 negotiation sessions had been held and
the parties were still apart on the issue of the RCO's. Re-
SALT RIVER VALLEY WATER USERS
spondent demanded they be excluded from the bargaining
unit, and the Union demanded they be reclassified to a
higher paying unit classification. Respondent's negotiators
explained the Association's position during negotiations to
the Union's negotiators in the same terms set out in Associ-
ate General Manager Shipley's letter of May 11, 1971, to the
Union's business manager, Donald Hall. The contents of
this letter are set out later in the Decision. The Union's
position, as expressed to the Association's negotiators, was
to quote its Business Manager Hall: "[The RCO's] as far as
scheduling water, had been trained. The equipment [refer-
ring to the console] was here and they were already doing
it and it was nothing more than . . . what these people were
already doing. In other words, these men were doing that
type of work at that time . . . ." On April 27, 1971, the
Union's membership rejected the Association's proposed
contract which included the exclusion from the unit of the
RCO's, and voted to strike. The Union's negotiators on
April 28 notified the Association of its intent to strike and
submitted a list of "must" items which it told the
Association's negotiators had to be resolved if any agree-
ment was to be reached. One of the "must" items was that
the RCO's be advanced one labor grade within the clerical
classifications.
On May 3, 1971, the Association's negotiators presented
in writing to the Union's negotiators what the Association
called its final proposal. The portion of the proposal which
dealt with the RCO's reads as follows:
Changes in operating procedures are going to require
that a salaried supervisor be on duty at all times at
ADC [referring to the dispatching center]. With a Wa-
termaster or Assistant Watermaster on shift continu-
ously, the major duties of the Radio Communications
Operators will be:
To communicate telephone and radio messages, and
relay instructions as directed by a Watermaster or
Assistant Watermaster.
Radio Communications Operators shall remain in Part
II of Exhibit A [referring to the clerical classifications
as distinct from the shop and field classifications] and
their duties will be as described above. The rate of pay
will be in accordance with the following schedule: [pro-
posal then sets out rates of pay.]
When Respondent, on May 3, submitted its final proposal
to the Union one of its negotiators, Associate General Man-
ager Shipley, told the Union's negotiators that Respondent
intended to proceed with its plans to transmit water by
remote control, that as the Union had been told previously
during negotiations the Association intended to take the
RCO's out of the bargaining unit and make them salaried
personnel . The Union at this time through its business man-
ager, Hall, replied that the Union would challenge any ac-
tion on the part of the Association which resulted in the
transfer of the RCO's out of the bargaining unit.
Thereafter, on May 4, 1971, the Union's negotiation com-
mittee recommended to the Union's membership that they
accept the Company's final proposal. A majority agreed,
and on May 5 the Respondent and Union signed a memo-
randum of intent which in effect stated that the parties had
agreed to all of the terms of a contract which now only had
to be reduced to writing for signature. The contract's terms
85
were reduced to writing and signed by all parties on July 14,
1971. By its terms the contract is effective from April 1,
1971, to March 31, 1974. The contract twice refers to the
RCO classification. Part II of Exhibit A, the list of clerical
classifications represented by the Union covered by the
contract, contains the rate of pay of the RCO classificat.on
as set out in the Company's final proposal. And, article II,
section 7 in substance states that the unit employees who are
presently employed on a 7-day, 24-hour rotating shift basis
are the RCO's and zanjeros. The contract is silent as to the
duties of the RCO's.
On May 11, 1971, General Manager Shipley, by letter,
notified Union's business manager, Hall, that, as stated to
the Union during negotiation, the Respondent was elimi-
nating the position of RCO and creating a new salaried
position, assistant transmission water master (ATWM),
which would be outside the bargaining unit. The letter
states:
Pursuant to our conversations during negotiations, and
the provisions of Article I, Section 6 of the contract this
letter is to advise you of the Association's intent to
restructure the staffing at the Association Dispatching
Center. The key to this change is the establishment of
salaried positions and phasing out of the hourly posi-
tions.
As you know, the Association has been considering
supervisory control of the transmission system since
1961. At that time the canal gates at the division gates
(28 1/2E-4N) were equipped for remote interrogation
and command utilizing Motorola equipment. Remote
operation from the Association Dispatching Center be-
gan on a total of three gates and three gages.
Continued feasibility testing led to the decision that
certain operational advantages are possible if the con-
cept were applied to the entire transmission system.
Unfortunately, during this short period of testing Mo-
torola advised us that the technology had advanced so
rapidly that the existing equipment was outdated and
that they were not interested in building equipment in
the field of irrigation.
From 1961 to 1964 the Association continued to plan
and work toward a fully automated transmission sys-
tem. During that interval discussions of both a formal
and informal nature were held with the radio opera-
tions personnel. Much of this commentary was in the
nature of implied and specific indications that the
workload and responsibilities of these employees
would change and that upward recognition was cou-
pled with these changes.
By 1965 the Association was convinced that the hard-
ware and technology existed to create a transmission
supervisory control network and work was started to
develop specifications and select priority locations.
These actions led you to ask for a meeting in June 1968
between yourself, then-president Floyd Parker and our
Manager of Irrigation, Bob Moore. The supervisory
86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
control program, as we had started calling it, and its
effects on the ADC Operators were specifically dis-
cussed. While no firm dates or rates were covered, the
idea of salaried dispatchers was a part of that session.
The initial stages of the Gulton system went to bid in
January 1969 and by May of 1970 the data controller
and operating console were installed at the Association
Dispatching Center. You may recall that office expan-
sion and remodeling had been completed in May 1969
to prepare for that equipment and change in operating
procedure.
Also, prior to the actual first-phase installation, train-
ing had been directed toward the watermasters to ac-
quaint them with the fundamental hydraulic concepts
in open channels and their relationship to our system
as operated manually and with the Gulton equipment.
This training continued in October 1969 through
March 1970 and included the radio operators. They
spent time in the field with distribution personnel to
become even more familiar with the inter-relationships
of transmission and distribution.
During the 1970-71 dryup period the radio operators
were again sent to a class of basic hydraulics with the
watermasters . This paralleled the 1969-70 training with
emphasis on the utilizaton of supervisory control in
maintaining flow continuity , the responsibility of the
watermasters for judgments on facilities conditions and
related matters . Additionally, within Transmission and
Communications, training was given to all radio opera-
tors on water scheduling.
While the radio operators have received scheduling in-
struction , to this time they have not had the responsiblity
for compiling, determining source , and ordering to fill
the transmission water order . We propose , with the
installation of Phase II of the supervisory system, to
make these men responsible for this aspect of the trans-
mission watermaster 's job and other related duties ap-
plicable to the supervisory duties of a watermaster.
Our scheduling calls for operation of the key elements
of Phase II by this mid -July and the implementation
and finalization of the operational change by Septem-
ber 5 of this year. We will again review this plan with
the radio operators within the next few days and, natu-
rally, they will be offered the opportunity to assume the
responsibilities of transmission assistant watermasters
effective June 7 , 1971. Notification of these positions
will be posted in the PULSE during the week of May
17.
In the above we have set forth the significant steps
leading to our decision to act at this time . Don, again
I want to assure you that this change is not with the
intent of affecting Union membership. This change is
in an efort [sic] to fulfill our long-standing plans of
providing an efficient operation of water control by
trained, qualified personnel with supervisory responsi-
bility.
It is not disputed and I find that during the contract
negotiations, the Respondent's negotiators had previously
given the Union's negotiators the identical information con-
tained in Shipley's letter of May 11; in particular, it told the
Union the Association was going to create a salaried nonun-
it position entitled ATWM to perform the work in the dis-
patch center. It is also not disputed and I find that this
matter was discussed at length during the negotiations and
that the Union at all times expressed its opposition to the
Respondent's proposal arguing that the work was bargain-
ing unit work.
Upon receipt of Shipley's letter of May 11, Hall tele-
phoned Rutger, the Association's personnel supervisor, the
person the Union normally contacts to try and resolve a
problem prior to filing a grievance under the collective-
bargaining agreement's gnevance-arbitration procedure.
Hall told Rutger that he had received Shipley's letter, that
it looked as though Shipley was going to take the RCO's out
of the bargaining unit, and that the Union intended to file
a grievance over this matter. Rutger answered that it was
"no good" for the Union to file a grievance because the
matter had been turned over to the Association's attorney.
The Union did not file a grievance under the parties' collec-
tive-bargaining agreement.
On May 20, 1971, the Association's newspaper, which is
distributed to employees, in its column entitled "Salaried
Positions Open" announced:
TRANSMISSION ASSISTANT WATERMASTERS OR TRAINEE-Seven
Openings Available-(Salaried position vacancy No.
041) Water Dispatching Center-Salary Grade Four or
Five-Water scheduling and communications experi-
ence is preferred. The employee is responsible for the
movement of water from storage and pumps to the
diversion point and through the transmission system
with the cooperation of both supervisory control and
the distribution personnel. He will be responsible for
the compilation of daily water order and schedule. He
will also be responsible for the specific radio communi-
cations of the Water Group and the legal and proce-
dural conformance of others on Water Group
frequencies. He will be responsible for the accurate,
timely and complete initiation and relaying of direc-
tives, messages , and information relating to the opera-
tions, safety and emergency procedures of those units
on these frequencies.
The employe will have direct supervision of gate opera-
tors and of distribution and other department's personnel.
[Emphasis supplied.]
Employes who are .qualified and interested in these
positions should submit applications to the Personnel
Department by Monday noon, May 24, application
should be made by completing the Employe Applica-
tion Position Vacancy Form, 82--8582, Rev. 3-69.
On June 25, 1971, the Union's attorney by letter informed
Shipley that his letter of May 11 had been referred to him
by the Union, that he was in the process of investigating the
situation and it was the position of the Union that the
RCO's now classified as ATWM's were within the bargain-
ing unit and the Association was not in a position to take
the steps outlined in its letter of May 11, 1971. On June 29,
SALT RIVER VALLEY WATER USERS
1971, the Union through its attorney filed the unfair labor
practice charges in this matter upon which this proceeding
is based.
C. Ultimate Findings Regarding the Alleged Unilateral
Conduct
Where, as in the instant case, an employer promotes or
reclassifies bargaining unit employees out of the unit and
thereby eliminates a number of jobs from the unit the em-
ployer is obligated to bargain with the Union over this
matter and cannot act unilaterally. Brotherhood of Locomo-
tive Firemen and Enginemen, 168 NLRB 677, enfd. on this
point 419 F.2d 314 (C.A.D.C., 1968). "On the other hand,
after bargaining to an impasse , that is , after good-faith neg-
otiations have exhausted the prospects of concluding an
agreement, an employer does not violate the Act by making
unilateral changes that are reasonably comprehended with-
in his pre-impasse proposals." Taft Broadcasting Co., 163
NLRB 475, 478, enfd. on this point 395 F.2d 622 (C.A.D.C.,
1968). Guided by the standards set out by the Board in the
Taft Broadcasting case, I have come to the conclusion that
the parties in the instant case reached an impasse in negotia-
tions. There is no evidence that Respondent in reclassifying
the RCO's to nonbargaining unit positions was motivated
in any way by animus against the Union or engaged in
bad-faith bargaining. To the contrary, the parties, with a
long history of bargaining , have maintained excellent rela-
tions. What did happen is that Respondent for legitimate
business reasons decided to change its method of trans-
mitting water and in so doing delegated additional responsi-
bilities and work to the RCO's. Because of this, Respondent
desired to reclassify the RCO's, make them salaried, and
remove them from the bargaining unit . Respondent met on
numerous occasions , and discussed its position with the
Union and gave detailed explanations of its position to the
Union's negotiators over the 5-month period of negotiations
for a new collective-bargaining agreement. The Union re-
jected Respondent's proposal taking the position that the
work in question remained bargaining unit work and that
the employees, whatever their classification, remained unit
employees. Both parties took strong positions. Both parties
bargained in good faith with a sincere desire to reach an
agreement. After approximately 5 months of bargaining,
negotiations had not resulted in a new agreement . The par-
ties were still apart on several issues including the reclassifi-
cation of the RCO's. It was in this context that the
Respondent on May 3, 1971, presented its final contract
proposal which among other things included the RCO clas-
sification. At the same time that it advanced its final propos-
al the Respondent candidly and unequivocally notified the
Union that it intended, as it had previously explained to the
Union, to go right ahead and reclassify the RCO's, and
make them salaried, and take them out of the bargaining
unit. The Union once again voiced its objection. Plainly an
impasse had been reached. However, the Union chose not
to allow this disputed item to stand in the way of a collec-
tive-bargaining agreement . The Union was content to sim-
ply voice its objection and to defer resolution of this issue
until settlement of the substantive terms of the collective-
bargaining agreement.
87
In view of the circumstances set out above, I find that the
dispute issued of the reclassification of the RCO's was not
settled during the course of the collective-bargaining negoti-
ations and that an impasse on this matter had occurred at
least by the negotiation meeting of May 3, 1971. I find
further that the changes in issue announced by the Respon-
dent in Shipley's May 11 letter and placed into effect on
June 7, 1971, were reasonably comprehended within the
Respondent's proposals which preceded the impasse. In
short, Respondent made the disputed changes only after
good-faith bargaining had exhausted the prospects of con-
cluding an agreement. Accordingly, Respondent did not
violate the Act by engaging in unilateral conduct. This does
not end the matter, for it is settled that an attempt to an
impasse to restrict bargaining to only certain members of an
appropriate unit is an unfair labor practice. Delhi-Taylor
Refining Division, Hess Oil and Chemical Corporation, 167
NLRB 115, enfd. on this point 415 F.2d 440,443-445 (C.A.
5, 1969). Although it seems that the contractual unit was
certified by the Board, it is not material whether the appro-
priate unit was certified by the Board or created contractu-
ally by the parties, "since the duty to bargain depends on
neither a Board election nor certification." Hess Oil &
Chemical Corporation v. N.L.R.B., supra, at 445. In the in-
stant case, as described in detail earlier in the Decision,
Respondent to a point of impasse has adhered to its position
that the former RCO's now classified as ATWM's be ex-
cluded from the contractual bargaining unit and has refused
to recognize the Union as the collective-bargaining repre-
sentative of the people employed in this classification. If the
ATWM's are part of the contractual bargaining unit-
which the parties agree is an appropriate unit-then the
Respondent, by proposing to impasse that the persons occu-
pying this classification be excluded from the unit, and by
refusing to recognize the Union as their bargaining repre-
sentative, has violated Section 8(a)(5) and (1) of the Act.
Hess Oil and Chemical Corp., supra. The description of the
duties of the ATWM's and the context in which they per-
form these duties follows.
D. Description of the Duties of the Assistant Transmission
Water Masters and the Context in which They Perform
Their Work
The Salt River project covers an area of over 250,000
acres and receives its water from a series of storage reser-
voirs. The water enters the system from the Granite Reef
dam at which point it is released into irrigation canals locat-
ed on the north and south side of the project. The water is
moved through the canals by raising and lowering a series
of gates in the canals as well as by the operation of deep well
pumps. Delivery to customers is made through large ditches
called laterals which branch off from the canals and carry
the water for delivery to the land which is to be irrigated.
The movement and level of water in these laterals is regulat-
ed by deep well pumps and calibrated delivery gates.
The persons responsible for delivering the water to the
users are the zanjeros who are bargaining unit employees.
The zanjeros, says General Manager Shipley, with the
TWM's, the ATWM's and the distribution water masters,
are the "key men" in the Salt River project. A comparison
M DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the zanjeros' rate of pay with the other classifications
indicates that they are skilled workers. Zanjeros are paid
about $50 to $70 a month less than the ATWM's. There are
approximately 120 zanjeros who work under the supervision
of three distribution water masters. The zanjeros schedule,
measure, and deliver the water. Respondent' s general man-
ager in charge of water operations, Shipley, testified that the
zanjeros had to know about the entire irrigation system and
in particular have a working knowledge about the laterals,
the deep well pumps and how to operate and maintain the
pumps, how to "measure a gate," how to schedule the water,
and how to fill out the forms connected with the scheduling.
Shipley also testified that the zanjero in performing his
work, including the above-described duties, reports and is
responsible to a distribution water master.
The Salt River project is divided into divisions, each one
with an assigned zanjero whose immediate supervisor is a
distribution water master. There are three distribution water
masters ; each one is responsible for 10 divisions. The Pro-
ject operates on a demand delivery system, that is, the user
demands delivery for a specific day during a 24-hour period.
A zanjero compiles the orders placed by users located in his
division and makes out a schedule of deliveries. Each
zanjero's schedule is checked by a distribution water master,
and the schedules are submitted to the Association's dis-
patch center where, as described later in the Decision, the
amount of water needed to be released from the dams is
computed. The only persons who work in the dispatch cen-
ter are the TWM's and ATWM's. Since the reclassification
there have been approximately eight ATWM's and two
TWM's working in the dispatching center at any one time.
In charge of them is DeForrestt Lastikow, the supervisor of
transmission and communication. Between Lastikow and
the TWM's and ATWM's in the chain of command are two
section supervisors whose duties will be described in detail
later in the Decision. The Dispatch Center is operated 24
hours a day, 7 days a week, with the workday normally
divided into three shifts, 8 a.m. to 4 p.m., 4 p.m. to 12 a.m.,
and 12 a.m. to 8 a.m.
As described earlier, orders for water are forwarded to the
Association dispatch center where certain water masters
(the TWM's and ATWM's collectively hereafter are called
Water Masters) now classified as schedulers compile the
amount of water which will have to be released from the
dams to satisfy the users' orders. One scheduler handles the
north and another the south side of the Salt River project.
They determine the quantity of surface water flow that has
to be released from the dams and what pumps, if any, have
to be activated to augment the surface supply. They also
schedule the flow of the water through the project. Schedul-
ing as distinguished from compiling the total water order
refers to the determination of how long it will take water
under various conditions with different size heads to reach
the various irrigation canals from the point the water enters
the system, the Granite Reef dam, and how long it will take
the water to reach the laterals. In short, they schedule the
specific time the users can expect delivery of their water. At
first, after the reclassification, the former RCO's compiled
the daily amount of water needed to be released to satisfy
users' demands, notified the operators at the dams when to
release the water into the system, and scheduled the water
through the system. The ATWM's, however, since they were
in the process of being trained, performed these duties for
the most part under the close supervision of the TWM's.
Respondent's written job descriptions for the water masters
issued at about the time of the reclassification state that in
compiling the daily water order the ATWM's work "under
the guidance and direction" of the TWM's who are respon-
sible for compiling the daily order as well as for scheduling
the water. Consistent with these portions of the job descrip-
tions, former ATWM Leggin, now a zanjero, credibly testi-
fied that when he was employed as an ATWM on the
graveyard shift he had concluded that a change in condi-
tions necessitated a change in the transmission schedule,
made the change, and immediately thereafter was repri-
manded for making such a change without consulting with
the water master who had made up the schedule. Also,
Section Supervisor Scott, a TWM, credibly testified that the
water master operating the console could make only minor
changes in the transmission schedule; that with regard to
any major changes in the schedule he had to check with the
water master who had made up the schedule. In this respect,
the Association's supervisor of transmission and communi-
cation, Lastikow, at a meeting of the water masters held on
or about September 29, 1972, instructed them, " if a major
change [referring to the transmission schedule] is needed,
call [the] scheduler regardless of the time of day." At this
meeting Lastikow also announced that not all of the water
masters would compile and schedule the daily water order
but that three of the water masters whom he named, all of
whom appear to be ATWM's, would do this work on a
permanent basis under the supervision of TWM Glenn
Scott and that the remaining water masters would operate
the console and the radio equipment under the supervision
of ATWM Paul Carney. In fact this is what has taken place,
except that the three permanent schedulers when they get
caught up with their work also assist in operating the con-
sole. There is, however, one situation in which the water
master operating the console will on his own schedule water,
and determine how long water will take to get from the
Granite Reef dam to the various canals and laterals. Name-
ly, in the case of "raised water," a phrase used to describe
water which has not been previously scheduled and which
reaches the Granite Reef dam during the swing or graveyard
shift, the water master operating the console is without the
presence of a supervisor and schedules the water from the
Granite Reef dam through the rest of the system.
While operating the console the water master monitors
the irrigation system at those sites hooked up to the console.
Using a cathode ray tube and other devices he observes
whether the water is being transmitted according to sched-
ule, and whether there are any conditions such as water level
which need investigation or correction, and moves the water
through the irrigation canals by remote control; that is, he
presses a button on the console which raises or lowers a gate
to the desired level to regulate the flow and depth of water.
Based upon the information supplied by zanjeros, the ca-
thode ray tube, and the other meters, the water master main-
tains a log book for each site in the system.
In monitoring and moving water through the system, the
water master, as I will now describe, is in direct contact with
the employees and supervisors working in the field: (1) If
SALT RIVER VALLEY WATER USERS
the readings from the cathode ray tube or other meters or
a customer 's communication indicate an unusual condition,
i.e., too much or too little water, the water master radios the
zanjero assigned to the division involved and tells him to
investigate the situation and, if necessary, tells him what
course of action to take to remedy the situation, i.e., lower
or raise a gate; start up or shut off a pump. It is undisputed
that if a zanjero during his normal course of inspection
comes across such an unusual situation , i.e., flooding, it is
part of his routine duties to remedy it, and he does this
without consulting the water master on duty at the dispatch
center for directions or advice; (2) regarding the daily de-
livery schedule, the water master, using the radio, serves as
a conduit between the "scheduler" and the zanjero and
relays to the zanjero the time he should pick up his water
for particular users. In the case of a change in the schedule,
the water master notifies the zanjero of the change in time.
In the case of "raised" water, he notifies the zanjero what
time he can expect the water to arrive for the various users
in his division; (3) in those portions of the Salt River project
which are not as yet under remote control, (at the time of
the hearing in November 1972 this constituted almost 50
percent of the Project), the water master monitors water
conditions through the eyes of the zanjeros and moves the
water using the arms of the zanjeros. To determine, for
example, the height of water at a particular site the water
master by radio tells the zanjero assigned to the division in
which the site is located to get the needed information. To
move the water into and along the irrigation canals, the
water master tells the zanjero assigned to the division in
which the particular gate is located to raise or lower the gate,
which the zanjero does manually; (4) during the swing and
graveyard shifts the distribution water masters (who super-
vise the zanjeros) are frequently not on duty and it is the
responsibility of the water master on duty to direct the
zanjeros. If, for example, there is a flooding or a lack of
water the water master by radio tells the zanjero assigned
to the particular area to take care of the matter; and (5)
during storm conditions the water master on duty is in
contact with the weather bureau which notifies him of a
possible storm and its location within the project. The water
master then finds out if it is in fact raining or threatening
to rain by radioing the zanjero assigned to the area in ques-
tion and telling him to check out and report about the
weather conditions. It is undisputed, however, that it is part
of a zanjero's routine duty to report adverse weather condi-
tions in his assigned division without waiting for an inquiry
from the water master. If in the opinion of the water master
storm conditions exist which are a threat to the Salt River
project or any part of the project, quoting Section Supervi-
sor Scott, "then he has the responsibility of calling Lastikow
[referring to the supervisor of transmission and communica-
tion] or whoever he has designated to relieve him if he is not
available," and it is Lastikow or his relief that decide wheth-
er additional personnel should be dispatched to police the
project. If it is decided by supervision that additional man-
power is required, then the water master on duty will by
radio and telephone contact supervision, zanjeros, construc-
tion crews, and trouble crews and notify them of the emer-
gency and direct them to report to certain areas. It is clear
and I find that in giving these directions in connection with
89
storm conditions that the water master is following the in-
structions of various supervisors and the instructions set out
in the Association's storm manual which sets out in detail
the names of the supervisors and employees and their as-
signed areas in the case of storm conditions. If the water
master is not able to locate the particular zanjero who is
assigned to a particular area, he contacts the zanjero closest
to the area and directs him to cover the situation until he
can make contact with the zanjero already assigned to the
area. Finally, during emergency or storm conditions
ATWM Thorne credibly testified that Supervisor Lastikow
as well as Section Supervisors Scott and Carney or one of
them is present in the dispatch center at most if not all
emergency situations. They stand right behind the water
master who is operating the console and instruct him on
what they want done.
Regarding the communication aspect of their job, the
water masters continue to use the radio and telephone as
they did when they were classified as RCO's. Generally,
they act as a relay point for messages between management
and the field personnel. Supervisors in the field who have
car radios keep the water masters informed of their wherea-
bouts when they leave their cars so management will know
where they can be reached. Maintenance and repair crews
keep the water masters informed of their whereabouts so if
a repair crew is needed in a particular area the water master
will know which crew is in that area and free. At the request
of a distribution water master or a zanjero the water master
dispatches trouble crews to an area where requested. They
will relay messages between distribution water masters (call-
ing by phone from home) to the zanjeros in the field. All
incidents are reported to the water masters and they in turn
phone the police, hospital, ambulance, etc. In connection
with the Association's radio communication the water mas-
ters maintain a log of the incoming and outgoing messages
as required by the Federal Communication Commission,
and monitor the language used on the radio to make sure
that the rules of the FCC are not being violated. Finally,
because they are the only persons on duty at night that the
public can reach, they receive all kinds of messages running
the gamut from customers' complaints to the placing of an
order to just, I presume, requests for information.
Regarding the frequency with which the water masters
actually visit the field, it appears that this happens infre-
quently. Once or twice a month Lastikow will direct a water
master to go out to the canals and inspect for damage which
needs to be repaired. The water master makes his recom-
mendation on a standard company form which he mails to
the Company's construction office. Whether the construc-
tion people follow the water master's recommendations or
what if any weight is given to them is not shown in the
record.
On the subject of verbal reprimands Lastikow testified
that the water masters have the authority to issue them to
zanjeros but was without knowledge as to whether such
reprimands were in fact ever issued. Lastikow also testified
that the Association's communication system is constantly
monitored by the water masters to make sure that the
Association's personnel using the radio do not violate the
rules and regulations of the FCC, and that if the water
master on duty overhears anyone (presumably even a mem-
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ber of management) using profanity over the radio he will
tell the offender that this is against FCC rules and not to do
it again. Lastikow did not know whether any written repri-
mand had ever been issued by a water master directed
against this type of conduct. Regarding written reprimands
there is no evidence that any water master at any time ever
issued a written reprimand. On the matter of oral repri-
mands, the sole evidence that an ATWM has ever so repri-
manded employees are oral reprimands given by ATWM
Paul Carney who, as described in detail later in this Deci-
sion, is a section supervisor over the water masters and in
this capacity is a statutory supervisor. Carney, during the
period from October through November 1972, orally repri-
manded three different zanjeros. No one ever specifically
told Carney or the other water masters that they had the
authority to orally reprimand zanjeros but Carney testified
he assumed he had this authority based upon the fact that
Lastikow had told the ATWM's they were supervisors and
should act like supervisors. From this Carney inferred he
had the power to orally reprimand zanjeros. As indicated
above, there is no evidence that any water master has ever
issued a written reprimand to a zanjero or for that matter
to anyone. On this matter the testimony of Carney indicates
that the ATWM's were of the opinion that their sole author-
ity in this area was to make a recommendation to the zanje-
ro supervisors, the distribution water masters. Thus, Carney
testified that he told one of the zanjeros he had orally repn-
manded that "if it happened again I would have to go to his
immediate supervisor for a written reprimand. I would write
an AVR to his supervisor to make a written reprimand."
There is no evidence that the zanjero's supervisor, the distri-
bution water master, would act on any such recommenda-
tion. There is evidence that the distribution water master
did not necessarily regard the water masters as having the
authority to tell the zanjeros what to do. Thus, former
ATWM Leggin, now a zanjero, credibly testified that once
when he had directed a zanjero to check out a situation at
a site the zanjero's immediate supervisor, a distribution wa-
ter master, reprimanded Leggin for unnecessarily bothering
the zanjero. Under all of these circumstances, I am of the
opinion that the evidence is insufficient to support the con-
clusion that the ATWM's in fact possess the authority to
discipline employees or to effectively recommend discipli-
nary action.
The ATWM's receive between $50 and $70 a month more
than the zanjeros. Their salaries are comparable to the high-
er paid classifications of employees included within the bar-
gaining unit . They are required to have a high school
education to qualify for the position of ATWM, and 2 years'
experience as a zanjero is desired but not required. Respon-
dent believes that it takes at least three years of training
before an ATWM can perform the job satisfactorily and
efficiently and with that in mind the RCO's at the time they
were reclassified were told that at the end of three years they
would become TWM's.
E. The Status of the Section Supervisors
As indicated above, in charge of the water masters is
Lastikow, the supervisor of transmission and communica-
tion , and between Lastikow and the water masters in the
chain of command are two section supervisors. Respondent
at the hearing contended that in general the water masters
are statutory supervisors but with respect to the section
supervisors contended that because of their additional re-
sponsibilities in supervising the water masters, they are sta-
tutory supervisors regardless of the status of the other water
masters . I will now discuss the duties of the section supervi-
sors.
On June 7, 1971, the date of the reclassification of the
RCO's, the two section supervisors were TWM's Powell and
Smith. Thereafter, in July 1971 Paul Carny and in Septem-
ber 1971 Glenn Scott assumed the positions of section su-
pervisors. Carney is an ATWM and Scott is a TWM.
Carney at all times material has used a business card or-
dered through the Respondent which designates him as
"section supervisor." It is undisputed that water masters go
to the section supervisors with their work problems and the
section supervisors have the authority to resolve , and in fact
resolve, these problems without consulting Lastikow. Also,
Lastikow testified that the section supervisors "see that the
work is being done properly and correctly" when he is not
available, and they have the authority to verbally reprimand
the water masters. ATWM Thorne testified that the particu-
lar section supervisor in charge "handles the timekeeping,
any disciplinary problems that come up or any problems
that the men have. He tries to get it settled before it has to
go to Lastikow." Also, Thorne testified that the water mas-
ters when they desire not to come to work or to leave work
early will seek permission from the section supervisor whom
Thorne is sure has the authority to grant such permission
unilaterally if Lastikow is not present.
In late September 1972 the Respondent divided its water
masters into two groups. One group of three to handle con-
sole operations and communications and the other three to
handle transmissions and scheduling. Lastikow at this time
informed the water masters that "Paul Carney is in charge
of . . . console operations and communications. Glenn
Scott is in charge of . . . transmission and scheduling.
When one is off the other is in charge of both sections. They
are in full charge of their sections and should be consulted
on all problems."
In addition to their supervisory functions the section su-
pervisors perform the identical work of the other water mas-
ters, namely, they substitute for water masters absent
because of sickness, vacations, etc. Also, the section supervi-
sors give the ATWM's continuous on-the-job training.
Based on the foregoing and in agreement with Respon-
dent, I find that the two section supervisors, Carney and
Scott, are supervisors within the meaning of the Act. Al-
though in some respects their relationship to the other water
masters is more like that of any experienced craftsman to
a less experienced employee than that of a supervisor, it is
clear that the section supervisors have the authority to re-
sponsibly direct the water masters in the performance of
their duties and that such authority is not merely of a rou-
tine or clerical nature.
F. Ultimate Findings Regarding the Status of the Assistant
Transmission Water Masters
The working time of the ATWM's is spent in the
SALT RIVER VALLEY WATER USERS
Association's dispatch center, monitoring electronic equip-
ment, recording information, operating a remote control
console, and using radio communication equipment. They
keep the Association's water system functioning. They have
direct contact with field employees, in most cases zanjeros,
but that contact consists simply of sending a field employee
to perform some routine mechanical task within the
employee's assigned work area such as opening or closing
an irrigation canal gate or switching a pump on or off or
reading a gauge or viewing the weather conditions. The
directions which they give to field employees relate primar-
ily to regular mechanical operations to be performed in the
normal course of business and do not cover the manner in
which the field employees perform such daily operations.
That the actual directions given to zanjeros by the ATWM's
are completely routine is confirmed by the lack of evidence
that such instructions have ever not been satisfactorily car-
ried out by the zanjeros who are in their own right skilled
workers.
There is no contention or evidence that the ATWM's are
charged with the responsibility of evaluating the field em-
ployees who have their own immediate supervisors. This is
not surprising inasmuch as ATWM contact with the field
employees is almost entirely by radio so they have almost
no opportunity to observe the manner in which the field
employees perform their tasks. See N.L.R.B. v. Magnesium
Casting Company, 427 F.2d 114, 118 (C.A. 1, 1970) (lack of
authority to evaluate employees indicates nonsupervisory
status), affd. on another point, 401 U.S. 137 (1971). In this
regard, I also note that as indicated by the testimony of
Section Supervisor Carney, an ATWM, it appears that an
ATWM who has a complaint about a zanjero must take any
such complaint to the zanjero's immediate supervisor, the
distribution water master, and it is the distribution water
master who independently decides upon the action, if any,
to take against the zanjero. Also, it is not disputed that the
ATWM's do not hire, discharge, suspend, layoff, recall,
promote, or reward any employees, nor do they effectively
recommend such actions or adjust grievances. Nor, as dis-
cussed earlier, do they have the authority to discipline em-
ployees or to effectively recommend such action. Thus, even
on those occasions when an ATWM does have contact with
a field employee, he exercises none of the authority most
commonly associated with supervisory status. Those normal
supervisory powers are exercised by the field supervisors,
under whose direction the field employees work. In sum, the
ATWM's have no true subordinates and have no power to
change or to effectively the status of any other employee.
The type of employee whose status is at issue in this case
is not altogether unique. Employee classifications compara-
ble to the ATWM's are characteristic of electric utilities
and, though the job titles vary-they are frequently called
load dispatchers, system dispatchers, or system load super-
visors-the Board, in a long line of cases, has acknowledged
the importance and skilled nature of the work they perform
but has constantly held that the personnel occupying these
classifications are employees, not supervisors within the
meaning of the Act. See Arizona Public Service Company,
182 NLRB 505 (1970), and 188 NLRB 1 (1971), citing The
Connecticut Light and Power Company, 121 NLRB 768
(1958), and the earlier cases cited therein. I realize that the
91
Respondent does business within the jurisdiction of the Un-
ited States Court of Appeals for the Ninth Circuit and that
the court declined to enforce the Board's decision in Arizona
Public Service, holding that the system load supervisors and
their assistants involved in that case were supervisors within
the meaning of the Act. Arizona Public Service Company v.
N.L.R.B., 453 F.2d 228 (C.A. 9, 1971, Judge Byrne dissent-
ing). Of course, I am bound by the Board's decision which
the Board apparently still follows. See The Western Colorado
Power Company, 190 NLRB 564 at 565, 566. In any event,
it is my opinion that the record in the instant case is substan-
tially more compelling than Arizona Public Service in a num-
ber of critical respects which demonstrate that the ATWM's
are not supervisors within the meaning of the Act: (1) In
Arizona Public Service there were 18 system load supervisors
who worked under the supervision of two individuals. In the
instant case there are only about seven ATWM's who are
supervised by three individuals, Lastikow, the supervisor of
transmission and communications, and his assistants, Sec-
tion Supervisors Carney and Scott. The seven ATWM's
have been instructed that Carney and Scott are in full
charge and should be consulted on all problems. This close
supervision of only seven ATWM's by three persons dem-
onstrates that they do not have the same judgment or re-
sponsibility as the system load supervisors in Arizona Public
Service,- (2) in the instant case there is evidence that indi-
cates that the immediate supervisors over the field employ-
ees do not consider that the ATWM's have the authority to
supervise the field employees. Thus, as discussed earlier,
ATWM Leggin was reprimanded by the immediate supervi-
sor of a zanjero because said supervisor believed that Leggin
was needlessly bothering the zanjero; (3) the court in Arizo-
na Public Service found, contrary to the Board, that "the
Supervisors and Assistant supervisors [referring to the sys-
tem load supervisors] responsibly direct employees in the
field after business hours and during emergencies." In the
court's view, this was clearly shown in "a condensed tape
and transcript of approximately three hours of Supervisor
operations on a Friday evening." This evidence revealed
(Arizona Public Service Company v. N.L.R.B., supra at
232-233):
While directing the ordinary repair operations and giv-
ing clearances for de-energized lines , testing faulty
lines, and locating defects, the Supervisor ignoring the
chain of command, himself directed the vast operations
necessary to return service to customers during a sum-
mer electrical storm.
The tape indicates that in an emergency-and such
summer storms are frequent in Arizona-the Supervis-
or has the power to requisition any man on the spot
and to direct his movement. He can direct substantially
every man employed by the Company. He has the au-
thority to decide without consulting anyone whether or
not a line can be de-energized, the final authority to
determine the feasibility of repairs, and the ability to
call linemen out for overtime. They do far more than
assign jobs according to a list before them or relay
orders from their superiors. The Company's Supervi-
sors handle most emergencies on their own; they do not
implement instructions from others. . . .
This is not the case with the ATWM's. During emergencies,
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
as earlier described, they simply assign jobs according to
instructions set out in a storm manual or relay orders from
their superiors. They most certainly do not ignore the chain
of command and themselves direct the vast operations ne-
cessary to return service to customers during a storm. In-
deed, during most emergencies Section Supervisors Scott or
Carney or Transmission and Communications Supervisor
Lastikow stand right behind and advise the water master
who is on duty at the console. With regard to those hours
of the day when an ATWM is on duty alone in the dispatch
center without supervision, unlike the system load supervis-
ors in Arizona Public Service, they do not have the authority
to depart from routine operations. To the contrary, as de-
scribed earlier, an ATWM on duty by himself is specifically
forbidden to depart from routine operations. For any
change in operations other than minor changes the ATWM
must contact the "scheduler" rather than exercise his inde-
pendent judgment; and (4) In the instant case the ATWM's
do not have any kind of authority which remotely resembles
the authority of the system load supervisors in Arizona Pub-
lic Service to buy and sell electricity and to pledge the
employer's credit in executing contracts for the sale and
purchase of such electricity from other utilities.
Finally, in determining whether the ATWM's are statuto-
ry supervisors I have considered the fact that the ATWM's
were told by management they were "supervisors" and have
also considered the job descriptions which were offered to
support the Respondent's claim that the ATWM's had been
granted the authority of a statutory supervisor. Included in
these job descriptions were statements indicating that the
ATWM's would have "direct supervision" over gate opera-
tors, zanjeros, and other departments' personnel, and that
the ATWM shares responsibility for his own work and that
of the gate operators as to quality, quantity, and timeliness
and that, subject to training reviews, he is required to exer-
cise independent judgment. In considering these job de-
scriptions and the oral statements made to the ATWM's
designating them as supervisors, I cannot shut my eyes to
the fact that such statements were prepared and made at a
time when the Respondent was vigorously contending that
the ATWM's were supervisors and as such were excluded
from the bargaining unit, and the Union was just as strenu-
ously contending that the added responsibilities were not
sufficient to endow them with the attributes of a statutory
supervisor. In such an atmosphere, tainted by a live contro-
versy over the statutory status of this particular group of
employees, management's statements conferring responsi-
bility and allocating duties are likely to be less reliable than
similar statements made in an atmosphere free from such
controversy. Oil, Chemical and Atomic Workers Internation-
al Union, AFL-CIO v. N.L.R.B., 445 F.2d 237, 243 (C.A.D.
C., 1971). Moreover, I am of the opinion that the
Respondent's statements attaching supervisory status to the
ATWM's are unpersuasive because they were unsupported
by evidence that they constituted anything more than naked
designations of "paper power." In Oil, Chemical and Atomic
Workers International Union, supra at 243, the court made
the following pertinent remarks on this issue:
We agree that, beyond the statements or directives
themselves, what the statute requires is evidence of
actual supervisory authority visibly translated into
tangible examples demonstrating the existence of such
authority. In N.L.R.B. v. Security Guard Service, Inc.,
348 F.2d 143, 149, the Fifth Circuit succinctly stated
the essential point:
... What is amiss with this argument which is
based on paper credentials is that there is lack of
actual authority to match. The concept of supervi-
sion has some elasticity, but it must have substance
and not be evanescent. . . . A supervisor may have
potential powers, but theoretical or paper power will
not suffice. Tables of organization and job descrip-
tions do not vest powers... .
In sum , I conclude that while a number of allegations of
supervisory authority have been made, the nearly total lack
of evidence of authority actually exercised negates its exis-
tence . Oil, Chemical and Atomic Workers International
Union v. N.L.R.B., supra at 243-244.
For the reasons set out previously in this decision, I find
that the evidence establishes that the assistant transmission
water masters (ATWM's) are not supervisors within the
meaning of Section 2(11) of the Act. The sole Board case
involving an electric utility to which the Respondent has
pointed in its brief in support of its position that the
ATWM's are statutory supervisors is Central Maine Power
Company, 151 NLRB 42 (1965). I have considered this case
carefully and find it is not apposite. There the supervisory
issue was not involved, for the Board there held that the
load dispatchers in issue were "managerial employees" and
hence excludable from the bargaining unit for that reason.
The Board so concluded on the basis of a specific finding
that they had "authority and responsibilities which exceeded
those normally associated with this position" (emphasis sup-
plied), 151 NLRB at 45. The Board further found that the
Central Maine load dispatchers, unlike those of most electric
utilities , "formulate, determine, and effectuate" the
employer's policies, and that they exercise discretion with-
out the aid of "established policy and regulations," ibid. By
contrast, in the instant case, the Association has never con-
tended that the ATWM's "formulate" and "determine"
management policies, and the record belies any such claim.
Nor do the employees here exercise discretion without the
aid of "established policy and regulations." Accordingly,
the Board's Central Maine decision has no bearing on the
instant case . I have also carefully considered the court's
opinion in West Penn Power Company v. N. L. R. B., 337 F.2d
993 (C.A. 3, 1964), also cited by the Respondent. There the
court, contrary to the Board, found that transmission and
distribution supervisors were supervisors within the mean-
ing of the Act. The Board, however, has not followed this
decision. But more important, as with the court's decision
in Arizona Public Service, I am convinced that the instant
case is distinguishable and that the record here is substan-
tially more compelling than West Penn Power in a number
of critical respects which demonstrate that the ATWM's are
not statutory supervisors.
The question remains whether the ATWM's are part of
the production, maintenance, and clerical unit already rep-
resented by the Union. Employees in this classification have
separate skills from those exercised by other unit employees,
yet their duties bring them into close contact with those of
other unit employees and their duties are closely integrated
SALT RIVER VALLEY WATER USERS
with those of the zanjeros, who are unit employees. Also, in
a sense there has been a bargaining history for these em-
ployees. Even prior to their reclassification, the RCO's, unit
employees, performed as part of their normal duties a signif-
icant portion of the work now still being performed by the
ATWM's. Based on the foregoing and the record as a whole,
I find that the ATWM's have a community of interest with
the employees covered by the parties' collective-bargaining
agreement and have at all times material been a part of this
unit) Cf. Arizona Public Service Company, 182 NLRB 505,
507, and The Connecticut Light and Power Company, supra.
As indicated above, Respondent since at least May 3,
1971, has adhered to its position, over the Union's objec-
tions, that the ATWM's had to be excluded from the bar-
gaining unit and in fact thereafter excluded these employees
from the unit. In view of the appropriateness of the unit
including the ATWM's, I find that Respondent's adherence
to its position in the face of the Union's insistence that it be
recognized as bargaining representative of the ATWM's
constituted failure and refusal to recognize the Union as the
representative of the ATWM employees, and that by such
failure and refusal Respondent violated Section 8(a)(5) and
(1) of the Act.2 Delhi-Taylor Refining Division, Hess Oil and
Chemical Corp., supra.
G. Whether the Board Should Decline to Act at This Time
and Instead Leave the Parties to Use Their Own Agreed-
Upon Procedures for Resolving the Dispute
Recently in Collyer Insulated Wire, 192 NLRB 837, the
Board announced its policy of deferring, at least contingent-
ly, to parties' grievance and arbitration machinery even
though an arbitrator's award has not been obtained, where
alleged unilateral action taken by a respondent employer is
not designed to undermine the union and is not patently
erroneous but rather is based on a substantial claim of
contractual privilege, and it appears that the arbitral inter-
pretation of the contract will resolve both the unfair labor
practice issue and the contract interpretation issue in a man-
ner compatible with the purposes of the Act. None of the
parties in the instant case desire to have the Board apply its
Collyer doctrine and defer to the contractual grievance arbi-
tration procedure. Ordinarily, I would not belabor a matter
which is not in issue but because the Collyer doctrine is
1 Regarding the transmission water masters (TWM's), I note that there is
no contention that the Respondent has refused to bargain over their terms
and conditions of employment Moreover, the TWM's historically have been
excluded from the bargaining unit. However, I note the following. It is
undisputed that since the reclassification of the RCO's to ATWM's, the
TWM's have performed the identical duties with the ATWM's, operating the
console and radio equipment If in the past they did possess or exercise any
supervisory authority, it now appears that they no longer do so, that this
supervisory authority now rests in the hands of the two section supervisors,
Scott and Carney. Also, I note that at the time of the hearing in this matter,
late November 1972, Respondent, as ATWM Thorne credibly testified, em-
ployed only two TWM's; Scott, who is a statutory supervisor by virtue of his
position as section supervisor, and a Mr Kelb, who is scheduled to retire in
February 1973 and was doing no scheduling but was working "with commu-
nications all the time."
2 Of course the Respondent's good- faith belief that the ATWM's were not
"employees" within the unit is no defense to an unfair labor practice charge
under See. 8(a)(5) of the Act See, e.g., N L.R B v Bardaht Oil Company, 399
F 2d 365, 368-369 (C A. 8, 1968)
93
relatively new and is still evolving I have taken the liberty
of setting out the facts pertinent to this issue, which has been
fully litigated.
The collective-bargaining agreement in effect when Re-
spondent in fact took the former RCO's out of the bargain-
ing unit contains a grievance and arbitration procedure
culminating in final binding arbitration and also contains a
broad no-strike clause which unambiguously precludes the
Union from calling a strike during the term of the agree-
ment. Respondent and the Union, by the terms of the griev-
ance-arbitration agreement, have agreed to submit any
difference that may arise under the collective-bargaining
agreement to the grievance-arbitration machinery. The un-
fair labor practices involved in this case involves alleged
unilateral changes in thejob classification of unit employees
because of a change of method of operation which resulted
in the loss of unit jobs, the employees in question being
reclassified out of the unit. The dispute in substantial part
centers on the meaning of article I, section 6 of the parties'
collective-bargaining agreement, entitled "Management of
the Association," which reads:
Except for matters specifically agreed upon herein, the
Association ... shall have the right to alter any proce-
dure or custom or direct the manner of the accomplish-
ment of any work, and to make any changes in its
organization, method or plan of operations that it shall
deem advisable. The local Union shall be notified of all
major changes and such changes will be discussed with
the Union before they are put into effect.
Indeed, the Respondent on May 11, 1971, when it notified
the Union of its intent to reclassify and remove the RCO's
from the unit, stated that it was acting pursuant to the
above-described section of the contract. Thus, the dispute
here involves the interpretation of the parties' collective-
bargaining agreement, is a matter which the parties have
voluntarily agreed to resolve by means of the grievance-
arbitration procedure, and takes place in the context of a
long established harmonious bargaining relationship.
The General Counsel takes the position that the present
controversy should not be deferred to the contractual griev-
ance-arbitration machinery because Respondent refuses to
submit to arbitration, and the contract does not compel
arbitration but only provides that either party "may" re-
quest it, that it is thus permissive and optional. I do not
agree with this last contention. It is clear from an examina-
tion of the contract that a dispute is arbitrable upon request,
and the use of the term "may" merely refers to the option
to request or not request arbitration. See Western Electric,
Inc., 199 NLRB No. 49 at footnote 3; Accord: J. C. Bonnot
v. Congress of Independent Unions Local #14, 331 F.2d 355
359 (C.A. 8, 1964). General Counsel at the hearing also
urged that the evidence establishes that the dispute involved
is not an arbitrable issue. Likewise, Respondent at the hear-
ing took the position that the matter is not arbitrable. If the
claim of nonarbitrability is based on the theory that a dis-
pute which in substantial part involves the question of
whether certain employees are statutory supervisors is a
matter solely for the Board and not for an arbitrator, I
cannot agree. The fact that one of the issues posed by the
instant dispute is whether certain employees are supervisors
within the meaning of the Act does not in opinion make the
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Collyer doctrine any less applicable. Whether an arbitrator's
award in this case would be repugnant to the purposes and
policies of the Act is at this date entirely speculative. If an
arbitrator's award did turn out to be repugnant to the poli-
cies of the Act it would be soon enough for the Board at that
time to reject the award under the policy enunciated in
Spielberg Manufacturing Company, 112 NLRB 1080. Final-
ly, the Union-the Charging Party-at the hearing stated
that initially it was of the opinion that the instant dispute
was a matter for the parties' grievance-arbitration proce-
dure but that when the Respondent indicated the matter
was not arbitrable that it filed an unfair labor practice
charge rather than a grievance and wants the Board to
decide the dispute. In short, all of the parties to this dispute
specifically say they want the Board, not an arbitrator, to
decide the matter.
Although not free from doubt, I do not believe that the
Board's policy of deferral enunciated in Collyer is applica-
ble where, as in the instant case , a grievance has never been
filed and the Respondent unequivocally tells the Board that
it will not voluntarily submit the matter in dispute to arbitra-
tion. I have considered the Collyer case and its progeny and
am of the opinion that the policy of deferral to the parties'
contractual grievance-arbitration procedure is based in sub-
stantial part on the willingness of a respondent to arbitrate
a dispute. I realize the reasoning in Collyer, in part, implies
that in a case such as the instant one a party must use the
agreed upon grievance-arbitration machinery even if it
means instituting a lawsuit to compel arbitration. The
Board, however, has not seen fit to defer to the parties'
grievance-arbitration procedure in a situation involving an
unwilling respondent and where no grievance has ever been
filed. To the contrary, those cases where the Board has
deferred have either involved respondents who have indi-
cated a willingness to submit the dispute involving the al-
leged unfair labor practice to the grievance-arbitration
procedure, or have involved disputes which have been the
subject of grievances completely processed through the
grievance procedure resulting in an award by an arbitrator,
or were ready to be arbitrated.' Finally, the Board in Collyer
by retaining jurisdiction over the dispute for the purpose of
entertaining an appropriate and timely motion for further
consideration if it is shown that the dispute had not with
reasonable promptness been submitted to arbitration has
indicated, in my opinion, that deferral is not appropriate
where a respondent will not willingly arbitrate the dispute.
Based on the foregoing, I am of the opinion that in the
circumstances of this case it would not effectuate the poli-
cies of the Act to defer this dispute to the parties' grievance
arbitration procedure.
CONCLUSIONS OF LAW
Upon the basis of the foregoing findings of fact and the
3 In this regard, I have considered Malrite of Wisconsin, Inc, 198 NLRB
No. 3, and Medical Manors, Inc, 199 NLRB No. 139, and do not believe they
hold that suits to compel arbitration are required under the Board's policy.
Briefly stated, they hold that where the parties in fact have used the grievance
arbitration procedure and/or have elected to resort to arbitration, a suit to
compel arbitration or to enforce an arbitration award should be undertaken
rather than at that late stage invoking the intervention of the Board
entire record, I make the following conclusions of law:
1. Salt River Valley Water Users' Association is an em-
ployer engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. International Brotherhood of Electrical Workers, Lo-
cal Union No. 266, AFL-CIO, is a labor organization with-
in the meaning of Section 2(5) of the Act.
3. All production, maintenance and clerical employees
covered by the collective-bargaining agreement between the
Union and the Respondent effective April 1, 1971, to March
31, 1974, including all assistant transmission water masters
employed in the Respondent's dispatch center, excluding all
other employees, guards, and supervisors as defined in the
Act, constitute a unit appropriate for the purposes of collec-
tive bargaining within the meaning of Section 9(b) of the
Act.
4. At all times material the above-named labor organiza-
tion has been and now is the exclusive representative of all
employees in the aforesaid appropriate unit for the purposes
of collective bargaining within the meaning of Section 9(a)
of the Act.
5. By insisting upon its proposal to exclude assistant
transmission water masters, and by excluding these employ-
ees from the appropriate bargaining unit in the face of the
Union's insistence that it be recognized as the collective-
bargaining representative of all employees in the appropn-
ate bargaining unit, including assistant transmission water
masters , Respondent refused to bargain in violation of Sec-
tion 8(a)(5) of the Act, and has interfered with employees
in the exercise of rights guaranteed in Section 7 of the Act,
in violation of Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
7. Respondent has not otherwise violated the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER4
Respondent, Salt River Valley Water Users' Association,
Phoenix, Arizona, its officers, agents, successors, and as-
signs , shall:
1. Cease and desist from:
(a) Refusing to bargain collectively with International
Brotherhood of Electrical Workers, Local Union No. 266,
AFL-CIO, as the exclusive representative of all of
Respondent's employees in the following appropriate unit:
All production, maintenance and clerical employees
covered by the collective-bargaining agreement be-
tween the above-named Union and Respondent effec-
tive April 1, 1971, to March 31, 1974, including all
assistant transmission water masters employed in the
Respondent's dispatch center, excluding all other em-
4 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Section
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings, conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes
SALT RIVER VALLEY WATER USERS
ployees, guards, and supervisors as defined in the Act.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the rights guaranteed
them in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Upon request, bargain with the above-named labor
organization as the exclusive representative of all employees
in the aforesaid appropriate unit with respect to rates of pay,
wages, hours, and other terms and conditions of employ-
ment, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its offices and places of business in the State
of Arizona where employees represented by the Union are
employed copies of the attached notice marked "Appen-
dix." 5 Copies of said notice, on forms provided by the
Regional Director for Region 28, after being duly signed by
Respondent's representative, shall be maintained by it for
60 consecutive days thereafter , in conspicuous places, in-
cluding all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced or cov-
ered by any other material.
(c) Notify the Regional Director for Region 28, in writ-
ing, within 20 days from the date of this Order, what steps
have been taken to comply herewith.
IT IS ALSO ORDERED that the amended complaint be dis-
missed insofar as it alleges violations of the Act not specifi-
cally found.
5 In the event that the Board 's Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain collectively with Inter-
95
national Brotherhood of Electrical Workers, Local
Union No. 266, AFL-CIO, as the exclusive representa-
tive of the employees in the bargaining unit described
below.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
WE WILL, upon request, bargain with the above-
named Union, as the exclusive representative of all
employees in the bargaining unit described below, with
respect to rates of pay, wages, hours, and other terms
and conditions of employment, and, if an under-
standing is reached, embody such understanding in a
signed agreement.
The bargaining unit is:
All production, maintenance and clerical employees
covered by the collective-bargaining agreement be-
tween the above-named Union and the Salt River
Valley Water Users' Association effective April 1,
1971, to March 31, 1974, including all assistant trans-
mission water masters employed in the Association's
Dispatching Center, excluding all other employees,
guards, and supervisors as defined in the Act.
Dated By
SALT RIVER VALLEY WATER
USERS' ASSOCIATION
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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. Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board's Office, 7011 Federal Building & U. S.
Courthouse, 500 Gold Avenue, S.W., Albuquerque, New
Mexico 87101, Telephone 505-843-2555.