The Ohio Public Service Co.

National Labor Relations Board - Board Decisions

Dec 10, 1942

45 N.L.R.B. 1244 (N.L.R.B. 1942)

In the Matter of THE OHIO PUl3LIC SERVICE COMPANY and INTER-
NATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, A. F. L., LOCAL
1324
Case No. R-441,08.-Decided December 10, 1942
Jurisdiction : electric utility industry
Investigation and Certification of Representatives : existence of question : re-
fusal to accord recognition until Board determined appropriate unit; election
necessary.
Unit Appropriate for Collective Bargaining : one of several divisions , including
employees of an outlying district considered part of division but excluding
supervisory , confidential , office and clerical, and sales employees , and guards.
Mr. H. H. Hoppe, of Warren, Ohio, for the Company.
Mr. W. H. Wilson, of Akron, Ohio, for the Union.
Mrs. Platonia P. Kaldes, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition duly filed by International Brotherhood of Electri-
cal Workers , A. F. L., Local 1324, herein called the Union , 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, the National Labor Relations
Board provided for'an appropriate hearing upon due notice before
Max W. Johnstone , Trial Examiner . Said hearing was held at
Sandusky , Ohio, on October 21, 1942.. The Company and the Union
appeared , participated , and were afforded full opportunity to be
heard, to examine and cross -examine witnesses , and to introduce
evidence bearing on the issues.' The rulings of the Trial Examiner
made at the hearing are free from prejudicial error and are hereby
affirmed. On November 4, 1942, -the Company filed a brief which the
Board has considered.
:Upon the entire record in the case, the Board makes the following:
' Utility Workers Organizing Committee (C. I. 0.), although served, did not appear.
45 N. L. R. B., No. 171.
1244
THB OHIO PUBLIC SERVICE COMPANY
FINDINGS of FACT
1. THE BUSINESS OF THE COMPANY
1245
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 ' and purchases and sells
various electrical appliances. - Of the principal materials used by the
Company in the operation of its business during 1940, the following
percentages were purchased from places-without the State of Ohio:
coal, 90 percent; copper wire, 100 percent;-poles, 100 percent; trans-
formers, 95 percent;, meters, 100 percent; cross arms, 100 percent; and
pole-line hardware, 100 percent. Of the principal items purchased
by the Company for resale during 1940, the following quantities were
purchased from outside the State of Ohio : refrigerators, 10 percent;
ranges, 5 percent; water heaters, 5 percent; meters, 100 percent;
washing machines, 75 percent; lighting equipment, 85 percent; appli-
ances, 80 percent; and radio sets, 100 percent. The Company admits
that it is engaged in commerce within the meaning of the National
Labor Relations 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 Sandusky Division.
II. THE ORGANIZATION INVOLVFD
International Brotherhood of Electrical -Workers, Local 1324,'is a
labor organization affiliated with the American Federation of Labor,
admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The parties stipulated that the Union requested recognition as
exclusive bargaining agent of employees of the Company, but that
the Company- refused to grant recognition until the Board deter-
mined the appropriate unit.
A statement by the Regional Director, introduced in evidence at
5 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,land Republic Steel Corpo-
ration.
1246 DECISIONS OF' NATIONAL LABOR -, RELATIONS BOARD
the hearing, shows that the Union represents a substantial number
of employees in the unit alleged to be appropriate.3
We find that a question affecting commerce has arisen concerning
.the representation of employees of the Company, within the meaning
of Section 9 (c)• and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE UNIT
The Union contends that all employees _in the Distribution Depart-
ment of the Sandusky Division, excluding sales, clerical, supervisory
and confidential employees and guards constitute an appropriate bar
,gaining unit. The Company contends that the appropriate unit
should consist of all its employees, excluding supervisory and proba-
tionary employees and' guards.
1. Division or system-wide unit -
The Company is organized on the basis of nine principal geograph-
ical divisions. We have previously found that the Company's dis-
tribution and production employees in its Warren Division constituted
an appropriate unit' The record does not disclose that any attempts
have been made to organize any of the other divisions of the Company
.with the exception of the Warren and Sandusky divisions, nor does
it appear from the record that'collective bargaining on a system-wide
basis is immediately probable or that bargaining on a divisional basis
is not entirely feasible. We do not believe that the opportunity' for
collective bargaining should be denied to the Company's employees
until their union organization on a system-wide basis is accornplished.5
We see no reason, therefore, to depart from our decision in the Warren
case and accordingly we find that employees in the Company's San-
dusky Division constitute mn appropriate bargaining unit.
2. The Bellevue District
The Union desires to'esclude and the Company desires to include
within the appropriate unit the employees of the Bellevue District.
The Union contends that the Bellevue District should not be consid-
3 The statement shows that the Union submitted 20 membership application cards and 9
authorization cards. Of the appluation cards 41 wei.e dated in March 1942, 1 in May
1942, 1 in July 1942, 2 in August 1942, and'.-, were undated Of the authorization Cards,
5 were dated in August 1942, and 4 were undated. All the cards appeared to bear genuine
original signatures and 25 corresponded to the names of persons appearing on the Com-
pany s pay roll of September 15, 1042 Among the 29 original signatures there is 1
duplicate The record shows that as of August 30, 1942, the Company employed at its
Sandusky Division approximately 73 distribution employees , these figures being inclusive
of supervisory. employees and employees at the Bellevue District. n
4Matter of Ohio 'Public Sereiee Company and International Biotlrer •hood of Electrical
11"oikeis ; Matter of Ohio Public Service Company and Local Union No. 177 of the ' Utility
Workers Orgdiiizing Committee,,34 N L R B . 1269. There is no prod uction , department
in the Company 's Sandusky Division.
G Cf. Matter of Pacific Gas and Electric Company, et al, 44 N L R B 665 and cazee
therein cited
THE OHIO PUBLIC SERVICE COMPANY 1247
'eyed as part of the Sandusky Division while the Company insists that
it should be so considered .6 The record discloses that the Bellevue
District pay rolls are made up and kept at the offices of the Sandusky
Division at Sandusky, Ohio, and that the Bellevue District is under
the supervision of a manager who reports to the Sandusky Division
manager. There is an interchange of line employees between
Sandusky and Bellevue. Sandusky employees maintain the Belleview
substations. Moreover, the record establishes that there is a com-'
munity of interest between the Bellevue and Sandusky employees,
Bellevue employees having been customarily included in the social
activities of the Sandusky employees.' The Union, has attempted, to
organize the employees of the Bellevue District as part of its organ-
izational campaign involving "the Sandusky Division. Under the cir-
cumstances we find that the Bellevue District is in effect part of the
Sandusky Division and should not be separated, for the purpose of
collective bargaining, from the employees in the Sandusky Division.
3. "Gang foremen" or "gang pushers"
The Union wishes to include while the Company wishes to exclude
from the appropriate unit certain employees classified as "gang fore-
men" or "gang pushers." ° The record discloses that these employees
are in charge of maintenance truck crews and that they supervise the
'work of these crews. They assist the men only when necessary to do
so in an emergency. Primarily it is their duty to see that the men
doing the work take proper care of themselves and that they use the
proper safety appliances. Neither party introduced evidence as to
the power of these men to hire or discharge employees, to recommend
hire or discharge, or to discipline the `men under them. It does not
appear, however, that the duties of these employees differ substanti-
ally from the duties of certain classes of employees whom the Union
desired to exclude in the Warren case, and whom we excluded from
the appropriate unit in that" case as supervisory employees. We see
no reason to depart from our former position. Accordingly, we find
that gang foremen or gang pushers are supervisory employees and we
shall exclude them from the appropriate unit.
4. Other disputed categories
The Company contends that "probationary employees" should be
excluded from the appropriate unit. According to the standards
O The properties in the Bellevue District are owned by the Toledo-Edison Compariy'but
are operated by the Company , under a lease agreement , as part of the latter 's system.
7 The Company ' did not expressly define its position as to the specific employees involved
although it indicated generally that it desired the exclusion of all supervisory employees
The employees herein are listed on the Company 's pay rolls as "foremen" of various types.
The Company introduced evidence that these men had supervisory duties.,
1248 DECISIONS OF NATIONAL LABOR RELATIONS- BOARD
adopted by the Company employees-are on probation for 1 year. The
Union did not express a position as to this contention of the Company.
In the Warren cage we decided that these employees should not be
deprived of the right to bargain collectively for 1 year after their
employment simply because they are on probation during that period.
We reaffirm our decision in that case and accordingly we will include
such employees within the appropriate unit.
The Union desires to exclude office, clerical, and sales employees
while the Company would include them. In the Warren case we ex-
eluded such employees from the appropriate unit in view of the
essential difference in duties and conditions of employment between
these employees and the employees in the distribution and production
departments. As we have previously pointed-out, there, is no produc-
tion department in the Sandusky Division. No showing has been
made why we should depart from our previous decision. Accordingly,
we shall exclude all office, clerical, and sales employees from the
appropriate unit."
The Company seeks to include, while the Union seeks to exclude,
the following employees from the appropriate unit :
Rolland C. Gegner is listed by the-Company as a "first class meter-
man." He is the overseer of the line power meters or the test equip-
ment, and is regarded by the employees as a foreman.
Betty J. No f tz is listed by the Company as a "service clerk." She
takes complaints from customers and assists in dispatching service-
men to service these complaints, keeps records of these complaints and
of who has been dispatched to service the same.
David H. Olney is classified as a "draftsman" by the Company.
He is employed in drawing blueprints and plots from which.the lipe
crews work. As a preliminary to the drafting of these prints or plots
he does some surveying in the field.
Jacob R. Sabiers is listed by the Company as an "office ,engineer."
He is in charge of the making of plans in the office with respect to the
design of substation underground volt construction or conduit lines
for installation of underground cables. He does some field work, and
also directs the draftsman with respect to his work.
H. Ev1win Stratton is listed by the Company as an "estimator."
He estimates the cost of constructions,^repairs and replacements.
Storekeepers, assistant storekeepers, and storeroom men are men
who, when goods are delivered by trucks to the distribution depart-
ment, unload that material from the truck, haul it^ to the storeroom,
uncrate it and put it in the necessary bins. They also fill requisitions
for materials submitted by the linemen or servicemen. The store-
keeper or assistant storekeeper keeps records of these requisitions.
" Matter o f the Kelly Company, et al, 34 N . L. It. B. 325, and cases therein cited.
THD OHIO PUBLIC SERVICE COMPANY 1249
We find Gegner is a supervisory employee and the Noftz, Olney,
Sabiers, Stratton and the storekeepers, assistant storekeepers, and
storeroom men are office or clerical employees, and we shall exclude
them from the appropriate unit.9
We find that -all employees in the Distribution Department, of the
Sandusky Division of the Company, including employees of this de-
partn7ent in the Bellevue District, but excluding supervisory, confiden-
tial, office, clerical, and sales employees, and guards, constitute a unit
appropriate for the purposes of collective bargaining, within the mean-
ing of Section 9 (b) of the Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that-the question concerning representation, which
has arisen be resolved by an election by secret ballot among the em-
ployees of the Company within the apropriate unit who were eniplbyed
during the pay-roll period immediately preceding the date of the
Direction of Election herein, subject to the limitations and additions
set forth in the Direction.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations-Board by Section 9 (c) of the National Labor Rela-
tions At, and pursuant to Article III, Section 9, of National R3la-
tions Board Rules and Regulations-Series 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with The Ohio Public
'Service Company, Cleveland, Ohio, an election by secret ballot shall
be conducted as early as possible but not later than thirty (30) .days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Eighth Region; acting in this matter
as agent for the National Labor Relations Board, and subject to Article
III, Section 10, of said Rules and Regulations, among the employees
in the unit found appropriate in Section IV, above, who were employed
during the pay-roll period immediately preceding the date of this
Direction, 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 any who have since quit or been discharged for cause, to
determine whether or not they desire to be represented by International
Brotherhood of Electrical Workers, Local 1324, affiliated with the
American Federation of Labor, for the purposes of collective bargain-
ing.
° No evidence was introduced as to the duties of certain employees in the Bellevue Dis-
trict 's distribution department whose duties may be similar to the duties of the employees
herein excluded Our findings are based upon the nature of the work performed and it is
expressly intended that the employees in the Bellevue District'be included or excluded from
the appropriate unit on this basis.
493508-43-vol. 45-79