The Ohio Public Service Co.

National Labor Relations Board - Board Decisions

Oct 3, 1946

71 N.L.R.B. 184 (N.L.R.B. 1946)

0
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
In the Matter of THE OHIO PUBLIC SERVICE COMPANY, EMPLOYER and
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFFILIATED
WITH THE AMERICAN FEDERATION OF LABOR, PETITIONER
Cases Nos. 8-R-2181 and 8-R-2397,. respectively-Decided October
3, 1.946
Mr. William Patrick Clyne, of Cleveland, Ohio, and Mr. Henry H.
Hoppe, of Warren, Ohio, for the Employer..
Messrs. Arnold Edelman and Ralph Jamieson, both of Cleveland,
Ohio, for the Engineers.
Mr. J. S. Knight, of Cincinnati, Ohio, for the IBEW.
Messrs.. Morton Barrisch, Sam Sponseller, William Munger, and
Clem Lewis, all of Cleveland, Ohio, for the CIO.
Mr. Sydney S. Asher, Jr., of counsel to the Board.
SUPPLEMENTAL DECISION
AND
SECOND DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
On August 1, 1946, the National Labor Relations Board issued a
Decision, Order, and Direction of Elections in Case No. 8-R-2181,1
directing elections among employees of the production department.
In the Decision, the Board stated :
The Amended petition requests a unit composed of production
employees only ... at no time has any party filed a petition seek-
ing 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 em-
ployees would constitute an appropriate unit. However, there
is ample evidence in the present record from which such a de-
termination could be made. Therefore, if any party shall, within
1 69 N. L. R B. 1089.
71 N. L. It. B., No. 24.
184
THE OHIO PUBLIC SERVICE COMPANY 185
five (5) days from the date of the issuance of this Decision, Order,
and Direction of Elections, file a petition requesting an election
among the Employer's distribution employees, we shall, if re-
quested, order such petition consolidated with the present peti-
tion and shall, if necessary, amend our Decision, Order, and Direc-
tion of Elections herein accordingly.
On August 5,1946, the IBEW filed a petition in Case No. 8-R-2327,
requesting an election among the employees of the distribution de-
partment. Subsequently, the IBEW moved to consolidate Cases Nos.
8-R-2181 and 8-R-2327. Thereafter, the Employer filed a motion
for review and reconsideration of the Decision.2 On August 21, 1946,
the Board granted the IBEW's motion for consolidation, ordered the
record reopened for the purpose of taking additional testimony with
respect to employees of the Marion Division and postponed the elec-
tions until such time as the Board should direct. Accordingly, a
supplemental hearing on the consolidated cases was held at Cleveland,
Ohio, on August 23, 1946, before Richard C. Swander, hearing officer.
The hearing officer's rulings made at the hearing are free from prejudi-
cial error and are hereby affirmed.
Upon the entire record in the consolidated cases, the Board makes
the following :
SUPPLEMENTAL FINDINGS OP FACT
A. The questions concerning representation
In 1942 the Marion Reserve Power Company, herein referred to
as Marion Reserve, was a utility corporation unconnected with the
Employer. Its operations were divided into two geographical seg-
ments, known as the Eastern and Western Divisions. The easternmost
part of the Eastern Division covered territory also served by facilities
of the Employer. Local Union B-638 of the IBEW began to bargain
with Marion Reserve in 1942 on behalf of its members in the Eastern
Division. At that time, the bargaining was limited to distribution
employees. On November 8, 1944, pursuant to a Decision and Direc-
tion of Election,8 the Board certified Local Union B-638 of the IBEW
as the exclusive bargaining agent for all production and distribution
employees in the Eastern Division of Marion Reserve. On June 25,
1945, Local Union B-638 of the IBEW signed a collective bargaining
contract with Marion Reserve with respect to the employees described
' The Employer complains of our ruling with respect to employees of the warren Division
but submits no arguments not previously considered. After due deliberation, we are unable
to find any compelling reason to depart from our previous conclusions. The Employer's
motion for reconsideration and review is therefore denied for reasons stated in our Decision
Issued August 1, 1946.
' Matter of The Marion Reserve Power Company, 57 N. L. R. B. 353 and 57 N. L. R B
1292.
186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above. The contract provided, inter alia, that it should remain in ef-
fect until September 30, 1946, and thereafter from year to year unless
written notice of termination should be given by either party on or
before June 1 of any calendar year. On May 30, 1946, Local Union
B-638 of the IBEW wrote a letter to the president of Marion Reserve
stating that it desired "to negotiate provisions for a new agreement." 4
Meanwhile, the Employer had acquired all the common stock of Mar-
ion Reserve and had disposed of the Western Division to another
utility company. Subsequent to the original hearing in Case No. 8-
R-2181, the Employer merged the Eastern Division of Marion Reserve
into its organization and procured the dissolution of Marion Reserve
as a separate corporation. The bulk of the production and distribu-
tion facilities of Marion Reserve now comprise the Employer's Marion
Division.
At the reopened hearing, the Petitioner in Case No. 8-R-2181, herein
referred to as the Engineers,5 moved to amend its petition in that case
to include therein production employees of the Marion Division.'-
The employer took a position in favor of this amendment. The IBEW
and the CIO opposed the amendment on the grounds, inter alia, that
the contract between Local Union B-638 of the IBEW and Marion
Reserve was binding on the Employer as successor to Marion Reserve
and that it constituted a bar to an election among employees of the
Marion Division. We deem it unnecessary at this time to decide
whether or not `the contract was binding on the Employer as the suc-
cessor to Marion Reserve. It is sufficient to point out that the letter
written by Local Union B-638 of the IBEW to Marion Reserve on
May 30, 1946, had the effect of terminating the agreement on Septem-
ber 30,1946 .7 Since the contract has expired, we find that it is not a
bar to a present determination of representative at the Marion
Division.
The CIO further opposes the Engineers' amendment to its petition
on the grounds that the inclusion of the production employees of the
Marion Division was originally requested by the Employer and is,
therefore, tantamount to an Employer petition for investigation and
certification of representatives, that the Engineers was guilty of laches
in not requesting the amendment sooner, and that the CIO has not had
sufficient time to engage in organizational activities among these
employees. We deem these contentions to be without merit. The
argument that the Employer had, in effect, petitioned for the inclusion
' This letter was sent after the close of the original hearing in Case No. 8-R-2181, but
prior to the issuance of the Decision in that case.
5 Referred to in our previous Decision in Case No . 8-R-2181 as "the Petitioner "
6 All the production employees of the Marion Division work in the Scioto power plant.
7 Matter of Condenser Service and Engineering Co., Inc ., Scranton Pump Division, 63
N. L. R. B. 833.
THE OHIO PUBLIC SERVICE COMPANY 187
of production employees of the Marion Division is now moot since the
Engineers has petitioned for their inclusion. The Engineers cannot
be held to be guilty of lathes, inasmuch as the Marion Division was
not part of the Employer's system at the time when the previous hear-
ing was held in Case No. 8-R-2181. Finally, it is the unit considera-
tions to which we must look, rather than the amount of time the
competing unions may have had in which to carry on their organizing
activities. We are of the opinion that the hearing officer did not err
in permitting the Engineers to amend its petition.
We find that questions affecting commerce have 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.
B. The appropriate unit; the determination of representatives
1. Distribution employees
In our previous decision in Case No. 8-R-2181, we stated that the
appropriate unit for production department employees should be
system-wide,in scope subject to the right of production employees in
the Warren Division, where collective bargaining for both production
and distribution employees had existed on a divisional basis for a num-
ber of years, to determine for themselves whether they should be in-
cluded in a system-wide unit or in a separate divisional unit. We
deferred ruling on the appropriate unit or units for distribution em-
ployees pending the filing of a petition, which has now been done,
seeking to represent such employees. We believe that all the unit
considerations applied to the production department employees are
equally applicable to the distribution department employees. Accord-
ingly, we shall establish for distribution employees voting groups
paralleling those already set up for production employees and we
shall defer any unit findings pending the outcome of the elections
directed hereinafter.
2. Marion Division employees
The Engineers and the Employer desire to have the employees in
the Marion Division included in the system-wide units, whereas the
CIO and the IBEW contend that they should be excluded.
Upon absorbing the physical properties of Marion Reserve, the
Employer transferred the employees of Marion Reserve, to its own pay
roll and organized the Marion Division to include the former power
and distribution facilities of Marion Reserve. The Scioto power plant
of the Marion Division is now in the process of being interconnected
with other power plants of the Employer's utility system, a task which
188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is expected to be completed by September 1, 1947; the distribution
facilities of Marion Reserve have already been integrated into the
Employer 's distribution system . Wages, hours , working conditions,
supervision and all other conditions of work are the same for Marion
Division employees as for employees working in other divisions of
the Employer . In short, the Marion Division is simply another
division in the Employer's utility system . These factors indicate the
desirability of including the Marion Division employees in the same
units with other comparable employees in the system . However, pro-
'duction and distribution employees in the Marion Division have a
history of collective bargaining on a divisional basis . This history
indicates , as it did in the case of the Warren Division employees, that
the Marion Division employees might also constitute a separate unit.
Under these circumstances , we shall make no unit determinations
with respect to the Marion Division employees at the present time,
but shall be guided , in part, by the desires of these employees as
expressed in the elections directed hereinafter . As in the case of the
Warren Division employees , we shall establish two voting groups for
Marion Division employees ; one voting group will comprise distri-
bution employees and the other production employees.
3. Specific disputed work categories
The CIO seeks to exclude line gang foremen from the distribution
unit, the IBEW desires the inclusion of these employees and the Em-
ployer and the Engineers are apparently neutral. These employees
supervise line gangs , normally consisting of two or three line men, a
ground man, and a driver . Their immediate superiors are line fore-
men. The crews which they supervise do construction , maintenance,
and repair work. The line gang foreman issues orders to the men
and may refuse to work with a man who is unsatisfactory to the crew.
When one of his crew becomes unsatisfactory , he reports the man to
the superintendent who authorizes an investigation of the facts. At
the termination of the investigation , the superintendent will transfer
the man if such action is warranted . Although the line gang foreman
possesses no authority to hire or to discharge , his refusal to work with
a man on the crew is, in effect , a recommendation of transfer and such
recommendation is accorded considerable weight. We find that line
gang foremen possess authority effectively to recommend the transfer
of employees working under their supervision and that they are, there-
fore, supervisory employees within our usual definition . Accordingly,
we shall exclude them from the voting groups of distribution em-
ployees.
THE OHIO PUBLIC SERVICE COMPANY 189
The Employer, the IBEW, and the CIO agree that system opera-
tors s should be excluded from the distribution unit. In accordance
with the desires of the parties, we shall exclude them.
4. Conclusions
We shall direct that separate elections by secret ballot 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 Second Direction of Elections, subject to the limitations
and additions set forth in the Direction. Our determination of an
appropriate unit or units, if any, will depend, in part, upon the re-
sults of such election. There shall be excluded from each of said
voting groups, in addition to those employees specifically excluded,
clerical employees, results engineers and other technical employees,
and all supervisory employees with authority to hire, promote, dis-
charge, discipline, or otherwise effect changes in the status of em-
ployees, or effectively recommend such action. The respective voting
groups shall be:
1. All employees of the Employer employed at its Lake Park, Edge-
water, Melco, and R. E. Burger power plants, including probationary
employees, assistant foremen of the yard, assistant foremen main-
tenance, and assistant foremen boiler room, but excluding shift engi-
neers.
2. All employees of the Employer employed at its Mahoninside
power plant, including probationary employees, assistant foremen of
the yard, assistant foremen maintenance, and assistant foremen boiler
room, but excluding shift engineers.
3. All employees of the Employer employed at its Scioto power
plant,9 including probationary employees, assistant foremen of the
yard, assistant foremen maintenance, and assistant foremen boiler
room, but excluding shift engineers.
4. All employees of the Employer's distribution department, in-
cluding probationary employees, but excluding line gang foremen,
system operators, and all employees employed at the Warren and
Marion Divisions.
5. All employees of the Employer's distribution department em-
ployed at its Warren Division, including probationary employees, but
excluding line gang foremen and system operators.
8 These employees are located at a central point in the system. They determine in
advance the energy that will be required at all locations and see to it that lines are in
service in sufficient number to carry that amount of energy to those locations.
9 As pointed out above, employees of the Scioto power plant constitute the production
department of the Marion Division.
190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. All employees of the Employer's distribution department em-
ployed at its Marion Division, including probationary employees, but
excluding line gang foremen and system operators.
In accordance with the agreement of the parties, we shall direct that
former employees of Marion Reserve who, since the acquisition of
Marion Reserve by the Employer, have been transferred to other divi-
sions of the Employer, shall vote in the divisions to which they are as-
signed at the date directed for determination of eligibility to vote.
In accordance with the desires of the parties, we shall direct that the
name of the Engineers shall appear on all ballots in the production de-
partment voting groups, that the name of the IBEW shall appear on
all ballots in the distribution department voting groups and upon the
ballot for the production employees of the Marion Division, and that
the name of the CIO shall appear upon all ballots.
SECOND DIRECTION OF ELECTIONS
As part of the investigation to ascertain representatives for the pur-
poses of collective bargaining with The Ohio Public Service Company,
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
Second 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 Sections 203.55 and
203.56, of National Labor Relations Board Rules and Regulations,
Series 4, among the employees in the voting groups described above,
who were employed during the pay-roll period immediately preceding
the date of this Second 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
the United States who present themselves in person at the polls, but
excluding those employees who have since quit or been discharged for
cause and have not been rehired or reinstated prior to the date of the
elections, to determine in voting groups 1 and 2 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, for the
purposes of collective bargaining, or by neither; in voting group 3,
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, affiliated
with the American Federation of Labor, for the purposes of collective
bargaining, or by none of them; in voting groups 4, 5, and 6, to deter-
THE OHIO PUBLIC SERVICE COMPANY 191
mine whether they desire to be represented by International Brother-
hood of Electrical Workers, affiliated with the American Federation of
Labor, or by Utility Workers Union of America, affiliated with the
CIO, for the purposes of collective bargaining, or by neither.
MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the
above Stipplemental Decision and Second Direction of Elections.
717724-47 -v,); 1J ---14