Upper Peninsula Power Co.

National Labor Relations Board - Board DecisionsNov 30, 1954

110 N.L.R.B. 1082 (N.L.R.B. 1954)

1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not thereby limited in application to future elections, but to any future case involving the circulation of an altered sample ballot, to which a valid objection was raised. We find that the Petitioner herein, by circulating a copy of the Board's official ballot, altered as described above, tended to interfere with a free' choice in the election, and the Employer has validly objected to this conduct. Accordingly, we shall set aside the election and direct that a new election be conducted by the Regional Director at such time as he deems proper. [The Board set aside the election and remanded this proceeding to the Regional Director for the Second Region for the purpose of conducting a new election.] UPPER PENINSULA POWER COMPANY, PETITIONER and LOCAL 510, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL and UNITED STEELWORKERS OF AMERICA, CIO UPPER PENINSULA POWER COMPANY and LOCAL 510, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL, PETITIONER. Cases Nos. 18-1 M-151 and 18-RC-92138. November 30, 1954 Decision and Direction of Elections Upon petitions duly filed under Section 9 (c) of the National Labor, Relations Act, a hearing was held before Clarence A. Meter, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain employees of the Employer.' 3. Questions affecting commerce exist concerning the representation of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The Employer engages in electric power generating, transmis- sion, and distribution operations in the Upper Peninsula of Michigan. Its operations are divided into five administrative districts referred to as Houghton, Calumet, Ontonagon, Ishpeming, and Iron River. The Employer and IBEW contend that an employerwide unit includ- ing operating, maintenance, and construction employees in all five districts is the only appropriate unit. Steelworkers contends that a ' Local 510, International Brotherhood of Electrical Workers, AFL, and United Steel- workers of America, CIO, will be referred to hereinafter as IBEW and Steelworkers, respectively. 110 NLRB No. 177. UPPER PENINSULA POWER COMPANY 1083 unit of similar composition confined to the Ishpeming district is separately appropriate. The Employer was formed in 1937 as a result of a merger of three electric utilities : Old Houghton County Electric Co ., Copper District Power Co., and Iron Range Light and Power Co. The systems of the first two of these companies , which included generating as well as distribution facilities located in adjoining counties , are now oper- ated as three contiguous administrative districts , Houghton , Calumet, and Ontonagon . The system of the third company , which purchased its power from the Wisconsin -Michigan Power Co . for distribution within a small separate area near the Wisconsin State line , is operated by the Employer as the Iron River district. In December 1953, the Employer acquired from Cliff Power & Light Co. and Michigan Gas and Electric Co. (Northern Division) their electric transmission and distribution systems which it now oper- ates as a continuous system, called the Ishpeming district , serving parts of four counties. The IBEW has bargained for the operating , maintenance, and construction employees in the Houghton, Calumet , and Ontonagon districts since 1944 . Steelworkers with its Locals 3531 and 3693, respectively , has represented similar employees of Michigan Gas and Electric 's Northern Division since 1945 and of Cliff Power & Light since 1946. However, at the time of the purchase of the electric trans- mission and distribution systems of those companies , the Employer did not assume the Intervenor 's contracts, with the result that the employees of Michigan and Cliff who accepted employment with the Employer 2 have been unrepresented since December 1953. Thera has been no collective -bargaining history for Iron River district employees. The Employer 's central offices are located in Houghton , where the officers of the Employer are located and actively conduct the Employ- er's business . The officers exercise close control over the Employer's operations delegating only day-to - day operating authority to district supervision . The Employer's president handles all labor relations matters and negotiations , public relations , and dealings with various regulatory agencies , in addition to exercising general supervision over all operations . The vice president also serves as general superin- tendent over physical operations , planning and directing mainte- nance, construction , power production , and service. In addition he serves as district manager of the Houghton district . The secretary- treasurer supervises all accounting and clerical functions throughout the system. He establishes routine procedures for all these functions and sees that they are followed by district clerical personnel. All ' 2 There were also other employees in the units represented by Steelworkers who con- tinued to work for Michigan and Cliff and are still represented by the Steelworkers. 1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consumer bills, payrolls, and permanent records for the entire system are made up under his supervision from information forwarded from the district offices to the Houghton office. At the head of each district, except Houghton, is a district manager.3 His functions are generally to carry out company policies originated by the officers. More specifically he supervises the distribution of energy, meter readings, collections, servicing of appliances, and con- struction and maintenance of the transmission lines. The district managers do not have authority to make purchases or expenditures above $15, nor can they sign company checks. All expenditures above $15 require approval of the central management and all checks are signed by one of the Employer's officers. In addition, the authority of the district manager with respect to personnel matters is also limited. They usually can hire or discharge employees only after specific approval by central management. They cannot alter hours of work or authorize overtime except in emergencies. They do not participate in collective-bargaining negotiations. The Houghton, Calumet, and Ontonagon districts are covered by a continuous system of transmission and distribution lines. The electrical energy is supplied from hydroelectric dams and steam plants operated by the Employer, also located in these districts. All electrical energy produced is pooled and distributed as needed throughout the three districts. The Ishpeming district is east of the Houghton, Calumet, and Ontonagon districts and at the time of the hearing was covered by a separate system of transmission and distribution lines. All of its electrical energy was purchased from generating plants operated by Cliff Power & Light Co. and other power producers, and there was no physical connection between the lines in the Ishpeming district and those in any other district. However, the Employer introduced testimony that it was in the process of starting construction of a 68-mile high voltage transmission line to tie up the Ishpeming lines with those in the Houghton, Calumet, and Ontonagon districts. At the time of the hearing in January 1954, 80 percent of the surveying had been completed, right-of-way for more than 20 miles had been purchased, engineering had been completed, and materials were being ordered. The Employer expected the connecting line to be completed sometime during the fall of 1954. After its completion, the Employer proposes to construct a central dispatching station and pool the elec- trical energy in the four districts so that each of the presently sepa- rate transmission systems can supplement the power supply of the other during their respective peak periods. The Houghton office is about 89 miles from the Ishpeming office; the distances from the 3 The position of district manager in the Calumet district had been vacant for about a year at the time of the :hearing. During this period the vice president and his assistant assumed the functions of the Calumet district manager. UPPER PENINSULA POWER COMPANY 1085 Calumet and Ontonagon offices to Ishpeming are greater. It appears that at their closest points the distribution lines of the Ishpeming dis- trict are more than 40 miles from those of the Houghton district 4 The Iron River district is south of the Houghton, Calumet, and Ontonagon districts and southwest of the Ishpeming district. Its transmission lines are completely separate from those of the other districts and there is no evidence that the Employer intends to tie them in. All energy distributed in that district is purchased from other producers. The lines of the Iron River district appear to be at least 60 miles from those of any other district. There is considerable interchange of employees between the Hough- ton, Calumet, and Ontonagon districts. However, there was no evi- dence of interchange of employees between the Ishpeming or Iron River districts and any other district at the time of the hearing, although there was general testimony to the effect that such inter- change did or would occur. All operational employees have similar classifications and duties. Working conditions and hours of employ- ment are also similar in all districts. The Employer contends that the connection of the Ishpeming lines with those of the Houghton, Calumet, and Ontonagon districts will result in closer operational integration of Ishpeming with the other connected districts, includ- ing interchange of employees. Steelworkers contends that the geo- graphical separation of Ishpeming from the other districts makes temporary interchange of employees between the district and other districts infeasible and highly unlikely. It is thus apparent from all the foregoing'that a number of factors including central control of management and labor relations, integra- tion of clerical and accounting functions, and similarity of classifica- tions and working conditions throughout the system; support a finding that a systemwide unit is appropriate in accordance with the Board's long established policy favoring systemwide units in the public utili- ties field.' However, it is also clear that the operations in the Ishpem- ing district are sufficiently independent of the rest of the Employer's operations to warrant a finding that a unit confined to the employees of that district is also appropriate. While the Ishpeming transmis- sion lines may be connected with those 'of the Houghton, Calumet, and Ontonagon districts in the near future, the area served by the Ishpem- ing district will remain separated 'from, that served by the other 3 districts by more than 40 miles. Moreover, Ishpeming will continue to be operated as a separate administrative, district, and so far as appears interchange will be infrequent. Another indication of the continuing separate identity of Ishpeming employees is the fact that 4 The distance information, is derived from, the Rand McNally Road Atlas and from the record 5 See Pacific 0a8 and Electric Company , 87 NLRB 257 at 263 ; Rockland Light and Power Company, 105 NLRB 365. 1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all the immediate supervisors of the Ishpeming employees will con- tinue to be located at the Ishpeming office and will supervise no other employees. Accordingly, we find that the employees in the Ishpeming district may constitute a separate appropriate unit, if they so desire," or may be included in the unit with the other employees of the Employer. In these circumstances, we will direct a self-determination election among the employees in the Ishpeming district to determine whether they wish to constitute a separate appropriate unit or whether they wish to become part of the systemwide unit. There remains the question of the Iron River district employees who, unlike the Ishpeming district employees, are not being sought as a separate unit but as part of the systemwide unit. The fact that the Iron River district employees have been excluded from the estab- lished bargaining unit in the past precludes their merger into that unit without affording the employees an opportunity to register their desires in this matter.' Therefore, we will also direct a self -determina- tion election among the employees in that district to determine whether they wish to be included in the systemwide unit. Accordingly, we will direct that elections be held in the following voting groups : A. All operating, maintenance, and construction employees in the Employer's Ishpeming district, excluding office clerical, managerial, and professional employees, watchmen, guards, and supervisors within the meaning of the Act. B. All operating, maintenance, and construction employees in the Employer's Iron River district, excluding office clerical, managerial, and professional employees, watchmen, guards, and supervisors within the meaning of the Act. C. All operating, maintenance, and construction employees in the Employer's Houghton, Calumet, and Ontonagon districts, excluding office clerical, managerial, and professional employees, caretakers, part-time employees, watchmen, guards, and supervisors as defined in the Act." e Iowa Public Service Company, 1021 NLRB 401. In Rockland Light and Poser Co., supra; Elizabethtown Consolidated Gas Company , 93 NLRB 1270 ; and The Laclede Gas Light Company, 77 NLRB 354, relied upon by the Employer and IBEW, there was no geographical separation of operations and integration was, or was about to become, complete 7 The Zia Company , 108 NLRB 1134, as modified in 109 NLRB 312 and 862; Montana- Dakota Utilities Company, 110 NLRB 1056. 8 The parties were in substantial agreement as to the composition of the voting groups. While Steelworkers contended that part -time employees and caretakers should be in- cluded in the voting groups , there appear to be no employees in either category in the Ishpeming district , the only district in which Steelworkers is seeking representation. Accordingly, we find it unnecessary to consider the unit placement of these categories in the Ishpeming district voting group. However , as the IBEW and the Employer agree that these categories should be excluded from the systemwide unit in accordance with their past practice at Houghton , Calumet, and Ontonagon , we will exclude them from the other voting groups. UPPER ,PENINSULA POWER COMPANY 1087 If a majority of the employees in voting group A vote for the Steelworkers, they will be taken to have indicated their desire to constitute a separate appropriate unit, and the Regional Director is instructed to issue a certification of representatives to the Steelworkers for such unit, which the Board under the circumstances finds to be appropriate for purposes of collective bargaining. If a majority vote for neither, they will be deemed to have expressed their desire to remain unrepresented. If a majority of the employees in voting group B vote against the IBEW, the employees in that voting group will be considered to have indicated their desire to remain outside the pres- ently recognized unit, and the Regional Director is instructed to issue a certification of results of election to that effect. However, if a majority of the employees in either voting group A or voting group B do not vote as set forth above, such group or groups will be appropriately included in the same unit with the employees in voting group C and their votes will be pooled with those in voting group C.9 The Regional Director is instructed to issue a certification of representatives to the labor organization selected by a majority of the employees in the pooled group, which the Board in such circum- stances finds to be a single unit appropriate for purposes of collective bargaining. [Text of Direction of Elections omitted from publication.] MEMBER MuRnociK, dissenting in part and concurring in part : To the extent that my colleagues find that a systemwide unit of util- ity employees may be appropriate, I am in agreement with the major- ity decision. I would not, however, ballot separately the Iron River employees because it is my considered opinion-as indicated by my dissent in Montana-Dakota Utilities Company, 110 NLRB 1056-that the separate balloting of previously unrepresented groups of utility em- ployees is inconsistent with the Board's frequent pronouncement that the most appropriate unit in the utility field is a comprehensive one, whether systemwide or systemwide-departmental. I would not, as my colleagues do, extend to the utility industry, where the element of uninterrupted service to the public by an integrated operation is so important, the Board's recent ruling in The Zia Company, 108 NLRB 1134, 109 NLRB 312, a decision from which I also dissented. There the Board voted separately a fringe group in a manufacturing estab- lishment even though the union seeking to represent them sought an election in the basic appropriate unit. If the votes are pooled , they are to be tallied in the following manner : The votes for the union seeking the separate unit shall be counted among the valid votes cast but neither for nor against the union seeking to represent the more comprehensive unit; all other votes are to be accorded their face value, whether for representation by the union seeking the comprehensive unit or for no union. 1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD As to the, employees of the Ishpeming district, who have had sepa- rate representation and are sought as a separate unit, I would treat them no differently than the Iron River employees, because it is my belief that when there is a bargaining representative prepared to rep- resent the optimum unit, prior bargaining history and geographical considerations serve only to becloud the issue of the appropriate unit for a utility. See The Laclede Gas Light Company, 77 NLRB 354; see also Southern Bell Telephone Company, 108 NLRB 1106. GENERAL FOODS CORPORATION, BIRDS EYE DIVISION and MAINE FISH- ERMEN'S ASSOCIATION OF RoCIKLAND, MAI NE, PETITIONER. Case No. 1-RC-36763. November 30,1954 Decision and Direction of Election Upon a petition duly filed under Section 9' (c) of the National Labor Relations Act, a hearing was held before Robert S. Fuchs, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Upon the entire record in this case, the Board finds : 1 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Petitioner and the Intervenor, Atlantic Fishermen's Union, Seafarers' International Union of North America, A. F. L., are labor organizations 2 claiming to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Petitioner originally sought a unit of fishermen employed on the Employer's nine fishing boats, excluding captains, mates, and engineers . At the hearing, the petition was amended to include the second engineer and to exclude lumpers. The Intervenor urges a 1 The Intervenor 's request for oral argument is denied because the record and the briefs, in our opinion , adequately present the issues and the positions of the parties. 2 The Petitioner urges that the Intervenor is not a labor organization within the meaning of the Act because it has bargained and is bargaining for supervisory personnel, such as captains and mates . We find no merit in this contention as Section 2 (5) of the Act defines a labor organization as a group which exists for the purpose of dealing with employers concerning grievances , wages, conditions of work, etc . The Intervenor urges that the Petitioner is not a labor organization within the meaning of the Act on the ground that it is primarily a strike-breaking group and is employer dominated. We find that the hearing officer correctly ruled in excluding evidence pertaining to this conten- tion of the Intervenor on the ground that these allegations raised issued involving unfair labor practice charges filed by the Intervenor ( in Case No . 1-CA-1742 ), and may not be considered in a representation proceeding . Times Square Stores Corporation, 79 NLRB 361 ;. Everett Plywood cE Door Corporation, 105 NLRB 17,.18. 110 NLRB No. 178.