The Ohio Public Service Co.

National Labor Relations Board - Board DecisionsNov 27, 1941

36 N.L.R.B. 1269 (N.L.R.B. 1941)

In the Matter of THE OHIO PUBLIC SERVICE COMPANY and INTERNA- TIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L. In the Matter of THE OHIO PUBLIC SERVICE COMPANY and LOCAL UNION No. 177 OF THE UTILITY WORKERS ORGANIZING COMMITTEE, C.I.O. Cases Nos. R-306 and R-3066, respectively.Decided November $7, 19411 Jurisdiction : electric utility industry. Investigation and Certification of Representatives : existence of question : re- fusal to accord either union recognition until certified by Board ; election necessary. Unit Appropriate for Collective Bargaining : all employees engaged in produc- tion and distribution of electrical energy in one of nine divisions of the Com- pany, excluding supervisory, office and clerical, and sales employees, and con- struction workers. Mr. H. H. Hoppe, of Warren, Ohio, for the Company. Mr. W. H. Wilson, of Cuyahoga Falls, Ohio, for the I. B. E. W. Mr. Albert F. Galusha, of Youngstown, Ohio, and Mr. Edward -T. Shedlock, of New York City, for the U. W. O. C. Mr. Marvin C. Wail, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE On August 28, 1941, International Brotherhood of Electrical Work- ers, A. F. L., herein called the I. B. E. W., filed with the Regional Director for the Eighth Region (Cleveland, Ohio), a petition alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of The Ohio Public Service Company, Cleve- land, Ohio, herein called the Company, and requesting an investiga- tion and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On September 9, 1941, Local Union No. 177 of the Utility,Workers Organizing Committee, C. I. 0., herein called the U. W. O. C., filed 36 N. L. R. B , No. 257. 1269 1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD a similar petition with the Regional Director. On September 23, 1941, the National Labor Relations Board, herein called the Board, acting pursuant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation in each case and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice, and, acting pursuant to Section 10 (c) (2) of said,Rules and Regulations, ordered that the cases be consolidated. On September 24, 1941, the Regional Director issued a notice of hearing, copies of which were duly served upon the Company, the I. B. E. W., and the U. W. O. C. Pursuant to notice, a hearing held on October 2, 3, and 4, at Warren, Ohio, before Harry L. Lodish, the Trial Examiner duly designated by the Chief Trial Examiner. The Company, the I. B. E. W., and the U. W. O. C. were represented by 'counsel and participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues was afforded all parties. At the begin- ning of the hearing and at the close of the I. B. E. W.'s case, the U. W. O. C. moved to dismiss the I. B. E. W.'s petition herein on the ground that the I. B. E. W. had not shown any substantial interest in this proceeding. The ruling on the motion was reserved for and referred to the Board. The motion is hereby denied.- During the course of the hearing, the Trial Examiner made rulings on motions and on objections to the admission of evidence. The Board has re- viewed the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On Octo- ber 20, 1941, the I. B. E. W. and the U. W. O. C. each filed a brief and on October 21, 1941, the Company filed a brief, all of which the Board has considered. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY The Ohio Public Service Company, an Ohio corporation, is engaged in the generation, transmission, and sale of electrical energy in Ohio. It owns, maintains, and operates generating plants, transmission lines, and transmission substations. It furnishes electrical power to many nationally known industrial concerns 2 and purchases and sells various electrical appliances. Of the.principal materials used by the 1 See Section III, snfra. 2 Among its customers are the American Radiator Company, American Ship Building Company, Baltimore & Ohio R. R. Company, Standard Products Company, U. S. Gypsum Company, Westinghouse Electric & Manufacturing Company, and Republic Steel Corpo- ration.' THE OHIO PUBLIC SERVICE COMPANY " 1271 Company in the operation of its business during 1940, the following percentages were purchased from without the State of Ohio : coal, 90 per cent ; copper wire , 100 per cent ; poles , 100 per cent ; trans- formers, 95 per cent; meters , 100 per cent ; cross arms , 100 per cent; and pole-line hardware, 100 per cent. Of the principal, items purchased by the Company for resale during 1940, the following quantities were purchased from outside the State of Ohio : refrigera- tors , 10 per cent; ranges , 5 per cent ; water heaters , 5 per cent ; meters, 100 per cent; washing machines, 75 per cent; lighting equipment, 85 per cent; appliances, 80 per cent; and radio sets, 100 per cent. The Company admits that it is engaged in commerce within the meaning of the Act. The Company 's operations are divided into nine principal geo- graphical divisions-Alliance , Ashland, Elyria , Port Clinton , Lorain, Mansfield, Massillon , Sandusky , and Warren. This proceeding in- volves the Warren Division. II. THE ORGANIZATIONS INVOLVED International Brotherhood of Electrical Workers is a labor or- ganization affiliated with the American Federation of Labor, admit- ting to membership employees of the Company. Local Union No. 177 of the Utility Workers Organizing Committee is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the Company. III. THE QUESTION CONCERNING REPRESENTATION The parties stipulated that both the I. B. E. W. and the U. W. O. C. requested recognition as exclusive bargaining agent of employees of the Company, but that each claimed different units to be appropriate and that the Company refused to grant recognition to either of them until the Board determined 'the appropriate unit. A statement by a Field Examiner of the Board introduced at the hearing shows that the I. B. E. W. and the U. W. O. C., respectively, represent a substantial number of employees in the unit each alleges to be appropriate.3 The U. W. O. C. contends, however, that the ` 3 The statement shows that the U W O. C submitted 76 membership application cards, 17 of which were dated in June 1941 , 28 in July 1941 , and 5 of which were undated All of the cards appeared to bear genuine oiiginal signatures and 73 corresponded to the names of persons appearing on the Company's pay roll ( the date of which does not appear). Of the 73 cards, 37 were signed by production employees and 36 by construction employees The I B If W submitted 34 authorization cards, 31 of which were dated in August 1941 and 3 of which were undated All of the cards appeared to bear genuine original signatures and 33 of them co, responded to the names of persons appealing on the Company ' s pay roll (the date of which does not appear ). Twenty -nine of these cards were signed by dis- tribution employees , 2 by production employees , and 2 by construction employees The 1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I. B. E. W.'s petition should be dismissed since its membership cards were all signed after the U. W. O. C. had first attempted to bargain with the Company. We find this contention to be without merit. We find that a question has arisen concerning the representation of employees of the Company. IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON COMMERCE We find that the question concerning representation which has arisen, occurring in connection with the operations of the Company described in Section I above, has a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tends to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE APPROPRIATE UNIT The I . B. E. W. contends that all employees engaged in the pro- duction and distribution of electrical energy in the Warren Division of the Company, including construction Workers, but excluding super- visory, office and clerical , and sales employees , constitute an appro- priate bargaining unit. The U. W. O. C. agrees with the I. B. E. W.'s position , except that it desires to exclude employees engaged in the distribution of electrical energy .' The Company claims that the appropriate unit should consist of all employees in the State of Ohio working for the Company , excluding supervisory and probationary employees and construction workers. A. Division or system-wide unit The Company is organized on the basis of nine principal geo- graphical divisions. The Warren Division is the largest of these nine divisions. In none of the divisions has there been any previous history of collective bargaining. The U. W. O. C. began organizing the production employees at the Warren Division in June 1941; the I. B. E. W. shortly thereafter. Neither union, so far as the record discloses, has attempted to organize employees of any of the Com- pany's other divisions. In view of the extent of organization, we record shows that as of October 1 , 1941, the Company employed at its Warren Division, 102 production employees , 57 construction employees , and 73 distribution employees, these figures being inclusive of supervisory employees ' The U W. 0 C. stated, specifically , that the appropriate unit should consist of "all hourly rated and salaried physical workers of the Warren Power Plant, including produc- tion and construction employees , excluding foremen, supervisors , and clerical workers." THE OHIO- PUBLIC SERVICE COMPANY 1273 are of the opinion that the unit should be restricted at the present time to employees in the Warren Division.5 B. The production and distribution departments At the Warren Division, the Company has a, production depart- ment which generates and delivers to 'the distribution department all the electrical energy required by the Company. The distribution department takes the energy from the power plant and carries it through various steps to the customers. The production and dis- tribution departments are intimately dependent upon each other and the work of the employees in these two departments is closely integrated. Under the circumstances, we do not believe that the employees in the production department should be separated, for the purposes of collective bargaining, from the employees in the distribution department. C. The construction workers The I. B. E. W. and the U. W. O.-C. wish to include the con- struction workers in the appropriate unit. The Company desires their exclusion as "temporary employees." At the time of the hear- ing, they were engaged in working on changes in the Company's property occasioned by the installation of high-pressure boilers and a 35,000 IOW. generator. Construction originally commenced in 1937, continued through 1938, and was then temporarily halted. At that time, a large majority of the construction workers were laid off. In 1939 construction work was resumed and those who had previously been employed were recalled, although not all re- sponded. The peak of such hiring was reached early in 1941 when approximately 250 men were on the pay roll. Since then the Com- pany has been laying off the construction workers. At the date of the hearing, there were only 40 construction workers remaining in the employ of the Company. The Company stated that it expected to complete its present construction work by the end of November 1941, and that all or most of the construction workers will have been laid off by that time. The Company plans to undertake addi- tional construction work beginning in either March, April, or May 1942. One of its representatives testified that the Company would then try to reemploy its present and former construction workers. The Company did not indicate, however, the number of employees Matter of Sears Roebuck and Company Atwater Kent Mail Order Plant and United Retail, Wholesale, and Department Store Employees of America , Local 18, C I 0 , 34 N. L. R. B., No. 34. 1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD it expected to hire when it resumed construction operations. Since the Company will have laid off all or most of its construction work- ers by the end of November • 1941, we are of the opinion that "con- struction workers" should not be included among those eligible to vote in an election conducted at the present time. In view of the foregoing', we shall not now determine whether the construction workers should be included in a unit together with the production and construction employees. We shall, under the circumstances, ex- clude the construction workers from th'e appropriate unit at the present time. This exclusion, however, shall be without prejudice to the right of either the I. B. E. W. or the United to file a petition for an investigation and certification of representatives with respect to the construction workers at such time as the Company resumes its construction operations. D. Other Employees of the Company The Company contends that "probationary employees" should be excluded from the appropriate unit. According to the standards adopted by the Company, all employees are on probation for 1 year after they are hired. Neither the I. B. E. W. nor the U. W. 0. C. ex- pressed a position on this contention of the company. In any event, we do not believe that employees should be deprived of the right to bargain collectively for 1 year after their employment simply because they are on probation during that period. We shall not exclude such employees from the appropriate unit. The U. W. 0. C. and the I. B. E. W. wish to exclude the office and clerical and sales employees, while the Company desires to include them. In view of the essential differences in duties and conditions of employment between these employees and employees in the production and distribution departments, we find that the office and clerical and sales employees should be excluded from the appropriate unit.' The Company seeks to include, while both unions desire to exclude, the following employees from the appropriate unit : William Edward Bland is listed by the Company as an "assistant foreman." The Company explained that it calls him "assistant fore- man" because he is in charge in the absence of his foreman, but that he is actually a "pusher." It appears, however, that Bland is in charge of the men who build certain boilers for the Company, assign- ing work and giving orders to these men. About 25 per cent of his time is spent in assisting the men if they need his help, while the rest 9 The Kelly Company and Warehousemen 's d Distribution Workers' Union, Local .2-9 (C. I. 0.) and Warehouse Employees ' Union, Local 197 , International Brotherhood of Teamsters , Chauffeurs, Warehousemen d Helpers of America (A F of L.), 34 N L. R B, No 56, and cases therein cited. THE OHIO PUBLIC SERVICE COMPANY 1275 of his time is devoted to supervising, instructing, and inspecting. - He has power to recommend hiring and discharging. Vern Clyde Daugherty is employed in the machine shop, spending most of his time operating a machine. He has a regular full-time machinist working under him, to whom he assigns work. Occasionally, he has another machine operator assisting him. He has power to recommend that men under him be discharged or disciplined. Frank Edward Finn works in the filter plant. The Company states -that his duties involve testing samples and working out dosages of chemicals, and that although Finn has a helper, he does a substantial amount of physical labor. The record indicates, however, that most of his time is spent in supervisory and clerical work and that only a relatively small amount of his time is spent in manual work. Alva Frederick Fusselman works at a desk, keeps the stockroom book, collects money, checks incoming stock, and signs freight bills, doing practically no manual work. He has one assistant who dis- tributes tools to the employees, when request is made therefor. Henry Hale works directly under the production superintendent as a safety man, interviewing and inspecting, and submitting report s. He does no manual work in the plant. Donald Hare is listed by the Company as "assistant boiler room fore- man," but the Company states that he has this title only because he is in charge in the absence of the foreman. The evidence shows that he is in charge of a group of 20-30 employees, inspects the fires, and gives orders to the men, many of whom go to him for advice. When the men are rushed, or if an emergency arises, Hare assists them in their work. He may recommend discharge and has power to discipline. Ivan 0. Hawk, Jr. -is a graduate engineer in training to become a superintendent or manager of the Company. He does no physical work, never enters the plant in the course of his duties, but remains in the office where he does drafting work. Alfred Herman I hlen f eld, Sr., is considered a "pusher" by the Company. He is employed in the production department, having ,25-30 men under his direction. He has power to recommend em- ployees for discharge or discipline. Robert John Kelly is listed by the Company as "assistant boiler room foreman." His duties are essentially similar to Donald Hare's supra. He has 20-25 men under him and is engaged in manual work approximately one-fourth of the time. He can discipline and recommend discharge. Jonathan Whiting Lester is a student engineer - in training. He has a desk in the office and does no physical work in the plant. He works on equipment recording, obtains test data, and takes pictures. Angus MacAulay is listed by the Company as "assistant turbine 1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD room foreman," in charge in the foreman's absence. About half of his time is spent in giving orders and transmitting them ° the re- mainder in physical work. William Pierce works in the boiler room and has 1-10 men under him to whom he gives orders. He is able to work any place in the boiler room as a maintenance man. In the absence of the foreman of the boiler room, he has power to discipline the men and recommend their discharge. Scott Clarence Reichard is listed as "assistant yard foreman" by the Company. In the foreman's absence, he is in charge and gives orders to the men. Ordinarily, he takes the men out to load coal and works with them. He also does all the clerical work for the foreman. Ralph Waldo Simpson does manual work about one-third of the time, and works at a desk in the office the rest of the time. On occasion he takes photographs in the plant for the Company. Ralph Willson Sprague is listed by the Company as a "special engineer." He occasionally inspects the meters in the boiler room, and records the readings, but a majority of his time is spent in office work. He runs boiler tests- and makes reports on the high- pressure boiler. The Company and the I. B. E. W. wish to include, and the U. W. O. C. to exclude, Alonzo Earl Smith. He is listed by the Company as "assistant chief electrician," in charge in the chief 'electrician's absence. He transmits orders, assigns work to 3-4 men, recommends disciplining and discharge. As one of the more com- petent electricans in the Company, he works with blue prints, install- ing conduits, wires, and cables. He is in charge of the switchboard. We find that Bland, Daugherty, Finn, Hare, Ihlenfeld, Kelly, MacAulay, Pierce, Reichard, and Smith are supervisory employees and that Fusselman, Hale, Hawk, Lester; Simpson, and Sprague are office or clerical employees, and we shall exclude them from the appro- priate unit. We find that all employees engaged in the production and dis- tribution of electrical energy in the Warren Division of the Company, excluding supervisory, office and clerical, and sales employees, and construction workers; constitute a unit appropriate for the purposes of collective bargaining and that such unit will insure to employees of the Company the full benefit of their right to self-organization and to collective bargaining and otherwise will effectuate the policies of the Act. ' In Matter of Borden 'Mills, Inc and, Textile Worlers Organizing Committee, 13 N. L. F. B. 459 , 465, the Board held • "Once an employee is vested with the authority to give orders, he'becomes a pact of the supervisory and managerial system, even if the orders he gives are not initiated by him " • THE OHIO PUBLIC SERVICE COMPANY " 1277 VI. THE DETERMINATION OF REPRESEN LATIVES We find that the question concerning representation which has arisen can best be resolved by an election by secret ballot. The U. W. O. C. contends that eligibility to vote should be based on the pay roll' of July 17, 1941, in order to include all construction workers laid off after that date. However, for reasons stated in Section V, above, construction workers shall not be eligible to participate in this election. Accordingly, we shall adhere to our usual practice of determining eligibility to vote on the basis of a current pay roll. Both the U. W. O. C. and the I. B. E. W. requested that they be permitted to appear upon the ballot, reserving to themselves the privilege of withdrawing therefrom. We shall, therefore, direct that the names of both labor organizations appear upon the ballot. However, if either union desires to withdraw from the ballot, it shall notify the Regional Director to that effect within five (5) days after the receipt of this Decision and Direction of Election; thereupon, its name shall be omitted from the ballot. In accordance with our usual practice, we shall direct that those eligible to vote in the elec- tion shall be the employees within the appropriate unit who were em- ployed by the Company during the pay-roll period immediately preceding the date of the Direction of Election, subject to the limita- tions'and additions set forth in the Direction. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSIONS OF LAW 1. A question affecting commerce has arisen concerning the repre- sentation of employees of The Ohio Public Service Company, Cleve- land, Ohio, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the National Labor Relations Act. , 2. All employees engaged in the production and distribution of electrical energy in the Warren Division of the Company, excluding supervisory, office and clerical, and sales employees, and construction workers, constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9 (b) of the National Labor Relations Act. DIRECTION OF ELECTION ' By virtue of and pursuant to the power vested in the National - Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Article III, Section 8, of National Labor Relations Board Rules and Regulations-Series 2, as amended, it is hereby 1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DIRECTED that, as part of the investigation authorized by the Board to ascertain representatives for the purposes of collective bargaining with The Ohio Public Service Company, Cleveland, Ohio, an elec- tion by secret ballot shall be conducted as early as possible but not later than thirty (30) days from the date of this Direction, under the direction and supervision of the Regional Director for the Eighth Region, acting in this matter as agent for the National Labor Rela- tions Board, and subject to Article III, Section 9, of said Rules and Regulations, among all employees engaged in the production and distribution of electrical energy in the Warren Division of the Com- pany, who were employed during the pay-roll period immediately preceding the date of this Direction of Election, including employees who did not work during such pay-roll period because they were ill or on vacation or in the active military service or training of the United States, or temporarily laid off, but excluding supervisory, office and clerical, and sales employees, and construction workers and employees who have since quit or been discharged for cause, to deter- mine whether they desire to be represented by International Brother- hood of Electrical Workers, A. F. L., or by Local Union No. 177 of the Utility Workers Organizing Committee, C. I. 0., for the purposes of collective bargaining, or by neither.