The Ohio Public Service Co.Download PDFNational Labor Relations Board - Board DecisionsAug 1, 194669 N.L.R.B. 1089 (N.L.R.B. 1946) Copy Citation In the Matter of THE OHIO PUBLIC SERVICE COMPANY,, EMPLOYER and LOCAL UNION 878, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFFILIATED WITH THE AMERICAN FEDERATION of LABOR, PETITIONER Case No. 8-R-2181.-Decided August 1, 1946 Messrs. William Patrick Clyne and Henry H. Hoppe, both of Cleve- land, Ohio, for the Employer. Messrs. William H. Thomas, Arnold M. Edelman, and Frank Con- verse, all of Cleveland, Ohio, for the Petitioner. Mr. Sam Sponseller, of Cleveland, Ohio, and Mr. William R. Manger, of Akron, Ohio, for the CIO. Mr. W. H. Wilson, of Akron, Ohio, and Mr. G. S. Knight, of Cin- cinnati, Ohio, for the IBEW. Mr. Sydney S. Asher, Jr., of counsel to the Board. DECISION ORDER AND DIRECTION OF ELECTIONS Upon an amended petition duly filed, hearing in this case was held at Cleveland, Ohio, on May 22, 24, and 25, 1946, before Richard C. Swander, Trial Examiner. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing, the CIO moved to dismiss the petition with respect to employees of the Employer's Warren Division. For reasons stated in Section III, infra, the motion is denied. Upon the entire record in the case, the National Labor Relations Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Ohio Public Service Company, an Ohio corporation, is engaged in the generation, transmission, and sale of electric energy and the I The amended petition also named as Employer "its wholly owned subsidiary , The Ohio River Power , Inc." The subsidiary owns the It . E. Burger Power Plant, which it leases to the parent company . The record does not reveal that any employees of the subsidiary are concerned herein. We shall therefore, upon our own motion, dismiss the petition insofar as it relates to employees of the subsidiary. 69 N. L. R. B., No. 132. 701592-47-vol. 69-70 1089 1090 DECISIONS OF NATIONAL LABOR RELATIONS BOARD purchase and sale of electric appliances. It operates generating plants, transmission lines and transmission substations in Ohio. Of the principal materials used by the Employer in the operation of its business during 1940, the following percentages were purchased from without the State of Ohio : coal, 90 percent; copper wire, 100 per- cent; poles, 100 percent; transformers, 95 percent; meters, 100 per- cent; and pole line hardware, 100 percent. Of the principal items purchased by the Employer for resale during 1940, the following quantities were furnished from outside the State of Ohio : refriger- ators, 10 percent; ranges, 5 percent; water heaters, 5 percent; meters, 100 percent; washing machines, 75 percent; lighting equipmnent,,85 percent; appliances, 80 percent; and radio sets, 100 percent. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. TL TIP: ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the American Federation of Labor, claiming to represent employees of the Employer. Utility Workers Union of America, herein called the CIO, is a labor organization affiliated with the Congress of Industrial Organ- izations, claiming to represent employees of the Employer. International Brotherhood of Electrical Workers, herein called the IBEW, is a labor organization affiliated with the American Fed- eration of Labor, claiming to represent employees of the Employer. III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. Pursuant to an election directed by the Board, the CIO was certi- fied as the exclusive bargaining representative of the employees of the Employer's Warren Division on April 14, 1942.2 The Employer, however, was unwilling to abide by the certification, and refused to bargain with the CIO until ordered to do so by the National War Labor Board on July 31, 1942. Negotiations between the Employer and the CIO commenced on August 19, 1942, and between that date and Oc- tober 28, 1942, eight meetings of the parties were held. On the latter date the parties reduced to writing all points on which they had agreed, including grievance procedure. At the same time the parties listed in a. separate instrument seven issues upon which they were unable to agree. The disputed points were then referred to the National War 2 Matter of The Ohio Public Service Company , 40 N. L. R. B. 530. THIS OHIO PUBLIC SERVICE COMPANY 1091 Labor Board. While these matters were pending before the National War Labor Board the parties met four times to discuss grievances. On March 19,1943, the National War Labor Board issued its direc- tive resolving all disputed issues except the matter of wages. According to this directive the question of wages was to be determined by a job evaluation and analysis to be completed on June 1, 1943. By mutual agreement, an engineer was engaged to compile the job anal- ysis. On June 1, 1943, the parties entered into negotiations, dis- cussing the job analysis. There were seven meetings, the last of which took place on July 14, 1943. At that meeting the CIO's representative refused to deal further with the Employer on the basis of the job analysis. Negotiations were broken off and the dispute was again referred to the National War Labor Board. At the direction of the National War Labor Board the job analysis was continued and was finally completed sometime in July 1944. On the basis of this job analysis the Regional War Labor Board issued a directive dated June 29,1945, setting forth wage rates to be made retroactive to November 1. 1942, and ordering the parties to incorporate its provisions "in a signed agreement reciting the intention of the parties to have their relations governed thereby." Thereupon, the Employer unsucess- fully petitioned the National War Labor Board for a review of the decision of the Regional War Labor Board. On October 10, 1945, the parties resumed the negotiations which had been broken off on July 14, 1943. Between October 10 and December 22, 1945, the parties met 13 times to discuss the application of the Regional War Labor Board's directive order of June 29, 1945. Sometime in December 1945, the parties executed 2 so-called "stipula- tions." S The first "stipulation" contained a recognition of the CIO .as the sole bargaining representative of the employees of the Warren Division, prescribed a method for the calculation of overtime pay, and settled upon June 18, 1944, as the retroactive date for wage rates :set forth in the directive of the Regional War Labor Board. It contained no mention of duration, but provided that "the matters agreed upon be incorporated in a signed agreement reciting the in- tention of the parties to have their relations governed thereby." The second "stipulation" established new rates of pay effective December 15, 1945 (which raves are still in effect), reduced the number of hours in the working week, and provided for progressive future individual increases in pay amounting to 5 cents hourly every 6 months. It contained no mention of duration and provided that its terms "shall be incorporated in and made part of the first labor contract to be a The date of the first "stipulation" appears variously as December 3, 12, or 13, of 1945, "The second "stipuluatlou" was executed December 22, 1945. 1092 DECISIONS OF NATIONAL LABOR RELATIONS BOARD entered into between the Ohio Public Service Company and the Local 177, Utility Workers Union of America, CIO, and be subject to any provision in said contract for reopening of matters of wage rates." There is evidence that the Employer requested the inclusion of a 1-year termination clause, which the CIO refused. As a result of these "stipulations" the Employer paid approximately $215,000 to its employees in the form of back pay.4 From January 18 to April 12, 1946, the parties held 9 meetings at which negotiations were carried on in an attempt to conclude a com- prehensive contract .5 Also at these meetings the CIO submitted 11 grievances with respect to alleged improper classification of em- ployees. Of the 11 employees concerned, 6 were granted higher classifications as a result of these grievance negotiations, and 5 were not. On May 3, 1946, the Employer learned of the filing of the amended petition in the instant case, and thereafter refused to bar- gain further with the CIO with respect to employees of its Warren Division. The CIO contends that the protracted proceedings before the Regional and National War Labor Boards have prevented it from enjoying the full benefits of collective bargaining pursuant to its certification. It argues that, under the doctrine of the Allis- Chalmers case," its prior certification is still a bar to a present election among employees of the Warren Division and that, as to such employees, the petition is premature. We do not agree. In the 4 years since it was certified as the exclusive bargaining agent for the Warren employees, the CIO has been able to obtain many benefits for those employees. It successfully negotiated a retroactive wage rate under the terms of which back pay was paid to employees, secured a wage raise which is still in effect, obtained a shorter work week, and contracted for progressive future individual pay increases. In addition, it set up a grievance procedure and negotiated grievances of employees even during periods when disputed issues were pending before the National War Labor Board. It secured the right to solicit membership on the Employer's property, was recognized by the Employer as the exclusive bargaining agent of the Warren employees, and received written commitments from the Employer on three different occasions. Under the circumstances, we believe that the policies of the Act can best be effectuated by providing the employees of the Warren Division with the opportunity to express their present representation desires in an election by secret ballot.' 4 Only part of this $215,000 was paid to employees of the warren Division , the remainder being paid to employees of other divisions. 5 Among the matters discussed was a demand by the CIO for a wage increase of IS cents per hour. 9 Matter of Allis-Chalmers Manufacturing Company , 50 N. L. R. B. 306. 7 Matter of International Harvester Company, 55 N. L. R. B. 497. THE OHIO PUBLIC SERVICE COMPANY 1093 The CIO also contends that the two "stipulations" of December 1945, are a contractual bar to a present election insofar as the Warren employees are concerned. It is apparent from the testimony, however, that these "stipulations" were not considered by the parties as a final, comprehensive contract governing their labor relations, but rather as a stop-gap until such a contract could be negotiated. This is further evidenced by the fact that, less than 1 month after the signing of the second of these "stipulations," the Employer and the CIO began nego- tiations in an attempt to conclude a complete and comprehensive bar- gaining contract. Moreover, the provisions in both "stipulations" that their terms should be incorporated in a future agreement is ample proof of the true intent of the contracting parties that the "stipula- tions" were merely temporary in natures The CIO argues that the lack of a term in the "stipulation" in the present case is not fatal during the first year of the contract's existence. Although the failure to in- clude a termination date may not in all circumstances be fatal to the efficacy of a contract as a bar, it is a strong indication in this case of the fact that the parties did not intend these two "stipulations" to con- stitute their definitive contract. The conclusion is inescapable that the two "stipulations" were tem- porary expedients only, intended to be superseded at some later time by a comprehensive contract. They therefore are not calculated. to stabilize labor relations and do not constitute a bar to a present elec- tion among the Warren Division employees. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. IV. THE APPROPRIATE UNIT; THE DETERMINATION OF REPRESENTATIVES The Petitioner seeks a unit composed of all production employees throughout the system, while the CIO seeks separate units in each of the 11 divisions, the production and distribution employees to be mingled. The IBEW.proposes a unit composed of all distribution employees throughout the system. The Employer agrees that the units sought by the Petitioner and the IBEW are appropriate and, in the alternative, would be satisfied with a system-wide unit composed of both production and distribution employees. S The CIO relies upon Matter of Standard Oil Company , 63 N. L. It. B. 1223. In that case the parties first signed a contract for a 1-year term which left open certain substantive matters, but provided that future writings concerning such substantive matters would be incorporated into the original contract . A subsequent writing was entered into. The Board held that the two writings could be treated as one comprehensive contract and that since the contract contained a recognition clause , grievance procedure , wage provisions, and a definite termination date, It was a bar to an election during its term. The instant case is, however , distinguishable from the Standard Oil case, for here the parties did not intend the "stipulations" to be anything more than temporary measures. 1094 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A. The Employer's operations The Employer's main office is located in Cleveland. Ohio, and its operations are conducted principally at 11 divisions at various locali- ties in Ohio, all of which are connected by power transmission lines. At 4 divisions there are both power plants and distribution headquar- ters, at 1 division there is a power plant alone, and at the remaining 6 there are only distribution headquarters. The 5 power plants receive coal, generate it into electricity, and fur- nish it to the low tension side of the transmission subbank. The energy proceeds over 325 miles of connecting 132,000 volt transmission lines to the 10 distribution headquarters, which in turn are connected with the communities served by the Employer. The transmission lines are planned, constructed, patrolled, and maintained by the Central Engineering Division, which has line crews traveling to all of the communities served. The distribution lines are serviced and maintained by personnel connected with each distribution head- quarters. Each of the power plants is under the supervision of a Production Superintendent who reports to the Production Manager. He, in turn, is responsible to the Vice President in Charge of Operations. Each of the 10 distribution headquarters is under the supervision of a Distribution Superintendent, who reports directly to the Vice Presi- dent in Charge of Operations with respect to matters of operation. On matters of public relations the Distribution Superintendent re- ports to his local Division Manager. The Central Engineering Divi- sion is headed by a Supervising Engineer who reports to the Vice President in Charge of Operations, and who is in charge of the entire distribution department in his absence. B. Past bargaining history The record discloses that the CIO has bargained for both produc- tion and distribution workers at the Warren Division for the past 4 years. In addition, there is evidence that "a number of years ago" the IBEW bargained with the Employer for distribution workers only at the Mansfield Division but did not obtain a written contract. The IBEW bargained for a. wage increase, and such a, wage increase was granted as a result of the negotiations. C. The geographical extent of the unit The power plants constituting the production department are operated as a unit, and if the production in one plant falls off, other plants must help supply the deficiency. Interchange of production THE OHIO PUBLIC SERVICE COMPANY 1095 employees between plants is frequently necessary. Likewise, the dis- tribution workers are frequently transferred from one division to an- other. All distribution headquarters are connected by an intra- company communications system. In a prior representation proceeding involving certain employees of the Employer,9 in which both the IBEW and the CIO participated, neither union had engaged in organizing any employees except those employed in the Warren Division. The Board held that "in view of the extent of organization we are of the opinion that the unit should be restricted at the present time to employees in the Warren Divi- sion." 10 This holding is not, controlling now, because at the present time all of the unions here involved have extended their organiza- tional activity throughout the entire system of the Employer. There is ample evidence that separate units in each division, as sought by the CIO, would not only reduce the bargaining power of the employees, but would also hamper the Employer's operations, and impair the uniformity of the Employer's operating procedures and safety regulations. Moreover, it would create difficulty whenever the Employer desired to transfer employees from one division to an- other.12 We have frequently pointed out that in different geograph- ical divisions of an electrical utility system there is an interdepen- dence of function which overbalances local differences 13 We are therefore of the opinion that the appropriate unit should be geo- graphically system-wide in scope, subject to the limitations set forth in subsection E, infra. D. The general constitution of the unit The production and distribution departments have separate super- vision, with the same over-all supervision above them both. The rates of pay in the two departments are not related nor similar. The distribution workers are on a 48-hour week while production workers are on a 42-hour average week. The production department works around the clock while the distribution department works daylight 9 Matter of The Ohio Public Service Company, 36 N. L. R. B. 1269. 11 Italics supplied. 11 An official of the Employer testified that when the CIO proposed a certain safety rule for the Warren Division , the Employer would not accept the rule because it conflicted with the Employer 's system-wide standard operating procedure. 12 The CIO representative testified that permanent transfers of employees from one division to another "would have to coincide with the particular seniority arrangements of the contract." There was also evidence that a welder from the Burger power plant was transferred temporarily to another plant and the other workers refused to work beside him because he did not belong to the union in that plant. 13 Matter of Wisconsin Power and Light Company , 6 N. L. R . B. 320; Matter of Ten- nessee Electric Power Company, 7 N. L. R . B. 24; Matter of Gulf States Utility Company, 31 N. L. R. B . 740; Matter of Northern States Power Company of Wisconsin , 37 N. L. R. B. 991 ; Matter of Florida Power A Light Company , 42 N. L . R. B. 472 ; Matter of Pennsyl- oa.nia Electric Company , 56 N. L. R. B. 625. 1096 DECISIONS OF NATIONAL LABOR RELATIONS BOARD hours only. The promotional set-up in the production department and its standard operating procedure differ from those in the dis- tribution department. The distribution department does not follow the production department in geographical location. Job classifica- tions in the production department are not similar to those found in the distribution department. The production workers are trained in a different craft than the distribution workers. Under Ohio law a licensed engineer must be in charge of each power plant at all times, but there is no similar provision of law with respect to distribution headquarters. In the last 5 years, only one transfer was proved to have been made between the production department and the distribu- tion department as a contrast to numerous transfers within each de- partment. There is also evidence that production employees would not be well represented in negotiations by a representative who was a distribution employee and vice versa. In the previous representation proceeding referred to above, the Board merged production and distribution employees in one unit, stating "the production and distribution departments are intimately dependent upon each other and the work of the employees is closely related. Under the circumstances we do not believe that the em- ployees in the production department should be separated, for the purposes of collective bargaining, from the employees in the distribu- tion department." It should, however,-be noted that in the prior hearing evidence was introduced that there had been 34 transfers be- tween the production and distribution departments over the period from 1924 to 1941, whereas, the record in the instant case shows only 1 such transfer within the last 5 years. Moreover, the IBEW's bar- gaining for distribution employees at the Mansfield Division occurred since the prior proceeding. After a comparison of the records in the 2 cases we are of the opinion that since the prior proceeding there has been a trend away from interchange of employees between the production and distribution departments and away from merging employees of the 2 departments for purposes of collective bargaining. In view of the foregoing, we do not feel that the language used in the prior proceeding is now applicable. Upon the basis of the entire record in the case, we conclude that the purposes of the Act can best be effectuated by separating the pro- duction employees from the distribution employees'14 subject to the limitation set forth in subsection E, infra. E. Employees of the Warren Division As set forth above, the employees of the Warren Division have constituted a separate unit for bargaining purposes for the last 4 1+ Matter of Commonwealth Edison Company, 55 N. L. R. B . 465; Matter of Union Elec- tric Company of Missouri and Union Electric Power Company, 64 N. L. It. B. 89. THE OHIO PUBLIC SERVICE COMPANY 1097 years. The unit contains both production and distribution employees. The, production employees within that unit are employed at the Warren Division's power plant, which is known as the Mahoningside- power plant. They could appropriately be permitted to remain within that unit and they could also appropriately be included in a system- wide unit of all of the Employer's production employees. We are of the opinion that the determination of whether these employees should be included in the Warren unit or in the system-wide pro- duction unit should depend, in part, upon the desires of such em ployees, to be expressed in the elections, hereinafter directed among the voting groups set forth below. Consequently, we shall make no final determination of the appropriate unit at this time, but shall defer the determination pending the results of said elections. F. Distribution employees The amended petition requests a unit composed of production em- ployees only. The IBEW set forth in its motion for intervention that it represented employees in the distribution department. At the hearing, the IBEW stated that it desired a unit composed of all of the employees in the distribution department throughout the Em- ployer's system but did not specifically ask for an election in such a. unit. At no time has any party filed a petition seeking an election among the distribution employees. Consequently, we do not deem it necessary to decide at this time whether or not a system-wide unit of all of the Employer's distribution employees would constitute an appropriate unit. However, there is ample evidence in the present record from which such a determination could be made. Therefore, if any party shall, within five (5) days from the date of the issuance of this Decision, Order, and Direction of Elections, file a petition re- questing an election among the Employer's distribution employees, we shall, if requested, order such petition consolidated with the present petition and shall, if necessary, amend our Decision, Order, and Direction of Elections herein accordingly. G. Specific disputed work categories The CIO seeks to exclude from the appropriate unit assistant boiler room foremen, assistant maintenance foremen, assistant yard fore- men, and shift engineers. The Petitioner desires to include all of these employees in the unit. The three types of assistant foremen listed above are minor super- visory employees described by an official of the Employer as "working foremen." They perform various operating jobs and at times assist in supervision. They spend a large majority of their time in manual work and have no authority to recommend, hiring or discharging of 1098 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees under them. We are of the opinion that these employees are not supervisory employees within our usual definition and we shall therefore include them within their appropriate voting group.15 The shift engineers are responsible for the operation of the par- ticular plant in which they are employed, subject to superior super- vision. They are licensed and, under normal conditions, their princi- pal duty is that of supervising and coordinating operations of the plant. They have no authority to recommend hiring or discharging, but have authority to assign duties on their shift. When promotions or demotions among employees under them are contemplated, their recommendations are solicited by superior supervisors and evidently accorded some weight. Accordingly, we are of the opinion that these employees possess responsibilities and authority which bring them within our usual definition of supervisory employees and consequently we shall exclude them from all of the voting groups. Inasmuch as we are not herein directing any elections among the distribution employees, it is not necessary for us to determine at this time whether or not line gang foremen and system operators (who are distribution employees) should be included in any voting groups. All parties are agreed upon the inclusion of probationary employees, who are employees who have served less than 1 year with the Employer. These employees are included in the existing unit at the Warren Di- vision. The parties are also in agreement that clerical employees and results engineers and other technical employees should be ex- cluded from any unit found to be appropriate. We shall respect the wishes of the parties by including probationary employees and ex- cluding clerical employees and results engineers and other technical employees. H. Conclusions We shall direct that the question concerning representation which has arisen shall be resolved by separate elections by secret ballot to be held among the employees of the Employer within each of the voting groups listed below who were employed during the pay-roll period immediately preceding the date of the Direction of Elections herein, subject to the limitations and additions set forth in the Direc- tion. Our determination of an appropriate unit or units, if any, will depend, in part, upon the results of such elections. There shall be excluded from each of said voting groups all clerical employees, all results engineers and other technical employees, and all supervisory employees with authority to hire,,promote, discharge, discipline, or 16 These categories no not appear at the Mahoningside power plant and therefore will be included in the first voting group only. THE OHIO PUBLIC SERVICE COMPANY 1099 otherwise effect changes in the status of employees, or effectively recommend such action. The respective voting groups shall be : 1. All employees of the Employer employed at its Lake Park, Edgewater, Melco, and R. E. Burger power plants, including pro- bationary employees, assistant foremen of the yard, assistant foremen maintenance, and assistant foremen boiler room, but excluding shift engineers. 2. All.employees of the Employer employed at its Mahoningside power plant, including probationary employees, but excluding shift engineers. We shall direct that the names of the Petitioner, the CIO, and the IBEW shall appear on both ballots. If the IBEW does not desire to participate in the elections, it may withdraw its name from the ballot, providing it notifies the Regional Director within five (5) days from the date of the issuance of this Decision, Order, and Direction of Elections that it does not desire to participate in the elections. ORDER -Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the National Labor Relations Board hereby orders that the petition for investigation and certification of representatives of employees of The Ohio River Power, Inc., Cleveland, Ohio, filed by Local Union 678, International Union of Operating Engineers, affilia- ated with the American Federation of Labor, be, and it hereby is, dis- missed, insofar only as it relates to employees of the said Ohio River Power, Inc. DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the purposes of collective bargaining with The Ohio Public Service Com- pany. Cleveland, Ohio, elections 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, Sections 10 and 11, of National Labor Relations Board Rules and Regulations- Series 3, as amended, among the employees in the voting groups de- scribed 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 said pay-roll period because they were. ill or on vacation or temporarily laid off, and including employees in the armed forces of tha United States who present themselves in person at the polls, but excluding those employees who have since 1100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD quit or been discharged for cause and have not been rehired or rein- stated prior to the date of the elections, to determine. whether they desire to be represented by Local Union 878, International Union of Operating Engineers, affiliated with the American Federation of Labor, or by Utility Workers Union of America, affiliated with the CIO, or by International Brotherhood of Electrical Workers (AFL), for the purposes of collective bargaining, or by none of them. MR. JOHN M. HOUSTON took no part in the consideration of the above Decision, Order, and Direction of Elections. Copy with citationCopy as parenthetical citation