Texas Electric Service Co.

National Labor Relations Board - Board DecisionsMay 28, 1982

261 N.L.R.B. 1455 (N.L.R.B. 1982)

TEXAS ELECTRIC SERVICE CO. Texas Electric Service Co. and International Broth- erhood of Electrical Workers, Local Union 1004, Petitioner. Case 16-RC-8270 May 28, 1982 DECISION AND DIRECTION OF ELECTION BY MEMBERS FANNING, JENKINS, AND ZIMMERMAN Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer T. P. Sheridan of the National Labor Relations Board. After the hearing, pursuant to Section 102.67 of the Board's Rules and Regulations, Series 8, as amend- ed, and by direction of the Regional Director for Region 16, the case was transferred to the Board for decision. Thereafter, the Employer and the Pe- titioner filed briefs. 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 reviewed the rulings made by the Hearing Officer at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed.' Upon the entire record in this case, the Board finds: 1. The Employer is a Texas corporation with its central office in Fort Worth, Texas, and is engaged in the generation, transmission, distribution, and sale of electricity within the State of Texas as a public utility. Its annual volume of business is in excess of $250,000. We therefore find that the Em- ' At the hearing the Employer attempted to introduce into evidence certain affidavits purporting to demonstrate that its employees wish to be represented in a systemwide unit. The Hearing Officer rejected the exhib- its as irrelevant, and, on appeal, the Board affirmed that ruling. In its brief In the Board the Employer has renewed its motion for introduction of esidence of employee preference. We hereby deny the Employer's motion. To be sure, the desires of employees are considered relevanl in a unit determination at least as expressed through such objective means as authorization cards and presented to the Board as the required showing of interest when an election petition is filed Subjective evidence of em- ployee desire for inclusion or exclusion is seldom considered, however See Ideal Laundry and Dry Cleaning Co.. 152 NI.RB 1130, 1131 fn. 6 (1965) To the extent that employee preference is relevant to this unit de- termination, we find that it favors the unit requested by the Petitioner Since neither the Petitioner nor any other labor organization has ex pressed an interest in representing the employees of the Employer in a systemwide unit, a finding that only such a unit is appropriate would frustrate the expressed desire of the Fort Worth Area employees to assert their statutory right to select a representative for purposes of collective bargaining. We note further that nothing in the statute requires that the unit for bargaining be the only appropriate or even the most appropriate unil rhe Act requires only that the unit determined be appropriate to ensure Io the employees involved the fullest freedom in exercising their statutory rights. See Federal Electric Corporation, Western Tistt Range, 157 NL RB 1130, 1132 (1966) 261 NLRB No. 190 ployer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Petitioner is a labor organization within the meaning of the Act seeking to represent certain employees of the Employer. 3. A question affecting commerce exists concern- ing the representation of the employees of the Em- ployer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. 4. The Petitioner seeks a unit of all hourly paid employees of Texas Electric Service Co. assigned to the Transmission and Distribution Departments in the Fort Worth Area,2 excluding guards, profes- sional employees, office clerical employees, and su- pervisors as defined in the Act. The Employer con- tends that only a systemwide unit of transmission and distribution employees is appropriate for pur- poses of collective bargaining. In addition, the Em- ployer contends that whatever the scope of the unit determined-systemwide or geographical- certain employee classifications not requested by the Union must be included. There is no history of collective bargaining for any of the employees in the unit sought by the Petitioner, and no labor or- ganization seeks to represent the employees in a more comprehensive unit. The employer is a public utility engaged in the generation, transmission, distribution, and sale of electricity. It serves an area in northern Texas that extends from Fort Worth westward to Monahans and north to Wichita Falls. The Employer's principal office, including its central control center for power dis- tribution, is in Fort Worth. In 1968, when a similar question arose concern- ing the scope of the appropriate unit,3 the Employ- er had been acquiring electrical energy from gener- ating plants fueled by natural gas and located throughout the area it served. The electricity so ac- quired had been for the most part locally distribut- ed. Since 1968, faced with rising fuel costs and the need for greater economy of operation, the Em- ployer has modified its method of power genera- tion and distribution. Approximately half of its gen- erating plants are now fueled by lignite coal, and it has increased the sophistication of the equipment in such a manner that, at least since 1968, the energy produced at any generating facility can be transmit- ted throughout the service area. Thus, for example, energy generated at Monahans may be transmitted 2 The Fort Worth "div ision" is called the Fort Worth Area a Texav Elctric Service Co.. Case 16 RC 4865 (not reported in volumes of Board )ecisions). In the 1968 unit determination the Regional Direc- tor for Region 16 found appropriate a unit comprised solely of distrihu- tion employees in the Fort Worth Area 1455 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to the Fort Worth area for distribution if for some reason the energy generated by plants nearer to Fort Worth is insufficient for the area's needs or is more expensive to produce.4 The systemwide transmission of electrical energy is monitored and controlled by dispatchers at the Employer's main office in Fort Worth. The dis- patchers work in a basement area known as the nerve center, containing recording instruments that indicate the supply of power everywhere in the system and devices by means of which the dis- patchers can communicate with the system's major load centers and thereby reroute power if necces- sary. The Employer's operation is divided into six ad- ministrative divisions that correspond to the geo- graphic divisions within the area served by the util- ity. The Eastland, Big Springs, Sweetwater, West- ern, and Wichita Falls Divisions are contiguous with each other but not with the Fort Worth Area. 5 The Employer's management structure, insofar as it is relevant to the present determination, is di- vided between the distribution and transmission functions of the utility system.6 The vice president in charge of distribution has authority over all ac- tivities from the time electricity leaves the substa- tions en route to customers; those activities include meter reading, billing, and collections. Employees assigned to distribution operations report to fore- men in 15 service centers. 7 The service center managers report to division managers in five of the Employer's administrative divisions and in the re- maining division, the Fort Worth Area, to the op- eration and construction manager. The operation and construction manager reports to H. M. Garrett, who reports directly to the vice president in charge of distribution, as do the division managers of the administrative divisions outside Fort Worth. There are approximately 592 employees assigned to 4 At the hearing, Vice President Scarth testified that prior to the instal- lation of the new equipment and before the Employer was required to reduce its production costs, one of the three Fort Worth Area generating plants was kept in constant operation to ensure that the downtown area would have sufficient electricity. None of the generating plants are now in operation on a 24-hour basis as a matter of policy. However, the record is unclear as to how much electricity, if any, used in the Fort Worth Area is not produced there, and it does not appear that the Em- ployer's functional operation has altered significantly in this regard since 1968, at which time electricity was for the most part locally produced and consumed " The Eastland l)ivision office is located 95 miles from the Fort Worth headquarters; the Big Springs office is 260 miles away; that of Western, 300 miles; and that of Wichita Falls, 120 miles. 6 Neither the vice president in charge of distribution nor the vice presi- dent in charge of transmission has authority to determine the Employer's labor policies. That function is performed by the centralized personnel department. 7 Eastland has two such service centers; Wichita Falls, one; Big Springs, two; Sweetwater, two; Western four; and Fort Worth, four. the distribution department of the Employer's oper- ation. The vice president in charge of transmission is responsible for the operation of the power plants and the transmission system, for the engineering functions, and for purchasing services. Employees assigned to transmission operations report to fore- men in five transmissions offices, one of which is located in Fort Worth.8 The superintendents at the transmissions offices report to Superintendent of Transmission M. H. Ball, who reports to Superin- tendent of Power R. S. Beard, who reports directly to the vice president in charge of transmissions op- erations. The transmissions department of the Em- ployer's enterprise employs approximately 220 em- ployees. Petitioner seeks to represent distribution and transmission employees in the Employer's adminis- trative division, the Fort Worth Area. In the Fort Worth Area there are four distribution service cen- ters, one of which is designated as an Operating Center, and one transmissions office. Also located in the Fort Worth Area is the Employer's adminis- trative headquarters, including the nerve center. Approximately 323 employees assigned to distribu- tion operations and 69 employees assigned to trans- missions operations work in the Fort Worth Area.9 The Employer's labor relations policies are cen- trally developed and coordinated by the personnel department at the administrative headquarters in Fort Worth. These policies include uniform, sys- temwide job classifications, job descriptions, and pay grades. All employees receive the same paid holidays; the same pension, insurance, sick leave, and vacation benefits; and the opportunity to par- ticipate in the Employer's thrift plan, college tu- ition plan, and stock purchase plan. Except for trained interviewers,'° there are no permanent per- sonnel department employees at the Division level. Nevertheless, a significant number of personnel matters are handled locally, that is, within the unit sought by the Petitioner. Supervisors in the Fort Worth Area have the ini- tial responsibility of screening and recommending applicants for hire and sole responsibility and au- thority to determine whether a probationary em- ployee's performance is satisfactory. Single-step progression through the pay grades within a job classification requires only local recommendation and approval. Promotion from one job classifica- I Sweetwater has no transmission office. Its transmission construction, maintenance, and repair requirements are met by the Big Spring Division. 9 These figures include employees in the disputed classifications 'O Some divisions have personnel trained in interviewing techniques by the personnel department. These employees spend most of their time, however, performing office clerical work. ' ' A double progression requires vice presidential approval. 1456 TEXAS ELECTRIC SERVICE CO. tion to another for an employee assigned to Fort Worth is initiated by recommendations from local supervisors and must be approved by higher man- agement with the Fort Worth Area before being submitted to a vice president for approval. Lists of candidates eligible for promotion are compiled and maintained at the local level. With regard to the Employer's day-to-day oper- ations, local supervisors make work assignments, schedule overtime and vacations, and grant person- al time off and leaves of absence. Employees report to their immediate supervisors concerning, inter alia, on-the-job injuries, payroll mistakes, tool re- placement, and application for promotion or trans- fer. Although the Employer publishes an employee handbook containing work rules and company poli- cies, which is distributed throughout the system, each local supervisor including Fort Worth Area supervisors is responsible for ensuring that employ- ees working under him are informed of the Compa- ny's standards and employment practices. In addi- tion, supervisors within the unit sought hold discus- sions with employees regarding violations of com- pany rules and issue warnings for such violations. A supervisor has the authority to suspend an em- ployee without pay for as many as 5 working days as a disciplinary measure, without previously con- sulting with the central personnel department, and may also suspend an employee without pay pend- ing investigation into misconduct, which is con- ducted locally at the division manager level. After receiving the recommendation of the immediate su- pervisor and of the personnel department, the divi- sion manager or transmission superintendent makes the final termination decisions. Based on the foregoing facts, we conclude that the Employer has not centralized the administra- tion, direction, and control of its operations to a degree that requires a finding that only a system- wide unit of transmission and distribution employ- ees is appropriate for purposes of collective bar- gaining. The Employer's administrative divisions, including the Fort Worth Area, have substantial autonomy in the local application of centralized personnel policies and in the conduct of labor rela- tions, particularly in the hiring, firing, discipline, promotion, and transfer of employees. Moreover, the Fort Worth Area functions as an administratively and geographically distinct divi- sion of the Employer's utility system, and the em- ployees whom the Petitioner seeks to represent do not exercise systemwide responsibilities.' 2 In addi- 12 An exception in this regard is the driver assigned to operate the Employer's only 95-foot boom truck, which is kept in the Fort Worth Area but used throughout the system. tion, the transmission and distribution employees in the Fort Worth Area form a stable and cohesive group of employees. Although available jobs are posted throughout the system, the employee hand- book indicates that the Employer's policy is to give first consideration to qualified persons within the local work group, and the record reveals that in fact only 20 employees, of a complement of ap- proximately 392, have transferred into the Fort Worth Area since 1968. Furthermore, interchange between employees in the Fort Worth Area and those in other administrative divisions is limited. In an emergency, such as a tornado or an ice storm, Fort Worth employees may be sent to other divi- sions, and in 1979 such emergency work accounted for 202 of the 220 days worked outside the Fort Worth Area. The remaining 18 days were attributa- ble to the operation of the Employer's 95-foot boom truck, which is assigned to Fort Worth but used as needed throughout the system. In 1980 only one Fort Worth employee appears to have spent a significant amount of time outside his divi- sion; assigned to inspection of power lines and service center equipment, this employee worked 59 of the 67 days of nonemergency work outside the Fort Worth Area. There were no emergency as- signments in 1980. In 1979, six transmission em- ployees from the Eastland Division worked a total of 315 days in the Fort Worth Area, but their duties were limited to inspection work at a power plant then under construction. In 1980, 20 transmis- sion employees from the Eastland Division worked a total of 535 days constructing and inspecting a new substation near Fort Worth; when completed, the substation will be operated and maintained by Fort Worth employees. Thus, except for emergen- cies and special projects, Fort Worth Area employ- ees have little interchange with employees from other divisions, and their work contacts are for the most part confined to other members of the unit re- quested by Petitioner. The Employer argues that since the area serv- iced by distribution employees is not congruent to that served by the transmission employees, the pro- posed unit is not based on either geographic, de- partmental, or administrative coherence. We dis- agree. The employees in the unit requested by the Petitioner are engaged in the functionally integrat- ed task of producing and delivering electricity in Fort Worth and its environs. The record does indi- cate that the transmission employees serve a slight- ly larger geographic area than the distribution em- ployees, but only because in certain outlying spots there are no customers consuming electricity, al- though there is transmission equipment to be main- tained. The evidence suggests that Fort Worth dis- 1457 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tribution employees will service customers in these areas as consumers arrive. We thus conclude that the geographical coherence and discreetness of the Fort Worth Area support a finding that Petitioner's requested unit is appropriate. Similarly, while each official of the Employer above the local supervi- sory level supervises and directs employees who are engaged in equivalent operations at locations not included in the proposed unit, the Employer's operation is sufficiently decentralized for us to con- clude that the employees assigned to transmission and distribution functions in the Fort Worth Area share a community of interest separate and distin- guishable from that which they share with other employees of the Employer. Accordingly, we do not accept the Employer's argument that only a systemwide unit is appropriate, and, since no union seeks to represent the Fort Worth Area transmis- sion and distribution employees in a more inclusive unit, we find that the unit requested by the Peti- tioner is appropriate for purposes of collective bar- gaining within the meaning of Section 9(b) of the Act. 13 The Employer maintains that the following clas- sification of employees should be included in the unit found appropriate: in the distribution depart- ment, employees classified as storekeeper, stock clerk, head stock clerk, material coordinator, mate- rial coordinator leadman, accounting specialist, as- sociate engineering technician, distribution clerk, senior distribution clerk, engineering clerk, student trainee, trouble specialist, meter specialist, street- light patrolman, distribution patrolman, mechanic -l In finding appropriate the petitioned-for unit, we reject the Employ- er's conltenltionl that a systemrwide unit is mandated by the Board's deci- sion in Baltirnore Ga and Eleetric Co., 206 NLRB 199 (1973). and the Fifth Circuit's opinion in N.. RB v. Pioneer Vatural as (C mpoany, 397 F.2d 573 (1968) While those decisions stand for the prolpositiorl that, i general, the Board will find a systemwide unit of public utility employes to be the optimum unit, the Board will find appropriate a less-than-sys- temwide unit where (1) there is no recent history of bargaining on a sys- temwide basis, (2) the proposed unit encompasses a distinct administrative ior geographical subdivision; (3) the employer invests substantial autonl- omy in supervisors at the unit level; and (4) ino union seeks to represent employees in a larger unit See, e.g., Neiw England TIlephone and lile- graph Company, 249 NLRB 1166 (1980); United Ga., Inc. 1)90 NLRB 61 hl (1971); Monongahela Power Company, 176 NIRB 915 (1969) (swhich unit was approved by the Fourth Circuit in a decision enflllorcing the Board's Order in the subsequent unfair labor practice proceeding. 76 LRRM 2316. 64 I C 11 11,441 (1971)). For the reasons set forth above, we find that a less-than-system'wide unit is appropriate Baltimore Gas and Electric. supra, is distinguishable from the ilstalt case in that the Employer here does administer its facilities according to geographic locations; the unit sought consists eof an entire divisionl and covers a substantial geographic area; and significant personnel actions arc taken by local supervisors (including initial screening of applicants forr hire; the determination of whether probationary enlployees should be re- tained; the approval of single-step progression in pay graldes and the meting out of suspensions for periods up to 5 days). Similarly, Pioneer Natural Gas Co., supra, is distinguishable ill that the unit there only conl sisted of a single plant unit found by the court to be a small integrated and interdependent part of the Pioneer System rather than, as here, anl entire administrative unit. welder, distribution dispatcher clerk, and senior distribution dispatcher clerk; in the transmission de- partment, employees classified as storekeeper, stock clerk, head stock clerk, associate engineering tech- nician, student trainee, mechanic welder, and land- scape specialist. In its brief to the Board, the Petitioner has with- drawn its objection to the inclusion of distribution department storekeeper, stock clerk, head stock clerk, material coordinator, material coordinator leadman, trouble specialist, meter specialist, street- light patrolman, distribution patrolman, and me- chanic welder; and of transmission department storekeeper, stock clerk, head stock clerk, mechan- ic welder, and landscape specialist. Accordingly, we shall include the foregoing undisputed classifi- cations in the unit. As to the remaining classifications, however, to whose inclusion the Petitioner maintains its objec- tion on the ground that they are essentially office clerical positions separately supervised and work- ing under a separate pay plan, we find the record insufficiently detailed to permit a determination at this stage of the proceeding. It appears that prior to the hearing the Petitioner did not have available a current list of employment classifications in the transmission and distribution departments and was therefore unprepared to argue for inclusion or ex- clusion of the 27 classifications about which it had no information. Moreover, the focus of the parties' concern was on the geographic and administrative scope of the unit rather than on job classifications and job descriptions in the unit finally determined. As a result, such evidence as was presented was too cursory to serve as a basis for a decision con- cerning the unit placement of employees in the dis- puted classifications. Accordingly, we shall permit the employees serving in the disputed classifica- tions to vote in the election subject to challenge. We therefore find appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act a unit consisting of the following employees of the Employer: All hourly paid employees employed by the Employer and assigned to the Transmission and Distribution Departments in the Fort Worth Area, excluding guards, professional employees, office clerical employees, and su- pervisors as defined in the Act. [Direction of Election and Excelsior footnote omitted from publication.] 4 14 As the unit found appropriate herein is broader than the unit origi- nally sought by the Petitioner, the Direction of Election is conditioned upon the i'etitioner's demonstrating, within 10 days from the date hereof, that it has an adequate showing of interest in the broader unit found ap- propriate 1458