Virginia Electric and Power Co.

National Labor Relations Board - Board Decisions

Jun 7, 1946

68 N.L.R.B. 504 (N.L.R.B. 1946)

I
In the Matter of VIRGINIA ELECTRIC AND POWER COMPANY and INTER-
NATIONAL BROTHERHOOD OF LOCAL UNIONS ON V. E. P. PROPERTIES,
A. F. L.
In the Matter of VIRGINIA ELECTRIC AND POWER COMPANY and INTER-
NATIONAL BROTHERHOOD OF LOCAL UNIONS ON V. E. P. PROPERTIES,
A. F. L., AND UTILITY WORKERS UNION
Cases Nos. 5-R-2000 and 5-RE-10, respectively
SECOND SUPPLEMENTAL DECISION
AND
SECOND DIRECTION OF ELECTION
June 7, 1946
On March 4, 1946, the Board issued a Decision and Direction of
Election in the above-entitled proceeding.' In that decision, the Board
postponed consideration of the question with regard to representation
of certain categories of foremen in issue only between the I. B. E. W.2
and the Company3 until a later date. We are here concerned only with
that issue.
I. THE QUESTION CONCERNING REPRESENTATION
Since 1939 the I. B. E. W. has been the contractual bargaining repre-
sentative of those foremen at VPS4 in the categories now in dispute.
In 1939 and part of 1940, the I. B. E. W. bargained separately for
these foremen. Since 1940, however, these foremen have been included
in the same bargaining unit with VPS's production and maintenance
employees and contractual relations have proceeded on that basis. The
last such contract and the supplement thereto followed the merger of
166 N L R. B. 271.
2 International Brotherhood of Local Unions on V. E. P. Properties, A. F. L.
' Utility Workers Union was the other party involved in the issue decided in the original
decision
4 As noted in our original decision, Virginia Public Service Company was merged with
Virginia Electric and Power Company on May 26, 1944. Whenever it is necessary to dis-
tinguish between the two companies as they existed before the merger, the Virginia Electric
and Power Company is referred to as V. E P. and the former Virginia Public Service Company
as V. P. S.
68 N. L. R. B., No 72.
504
VIRGINIA ELECTRIC AND POWER COMPANY 505
VPS and VEP and was entered into between the Company and the
I. B. E. W. The I. B. E. W. has never bargained for any of the foremen
in the disputed categories in VEP.5
Shortly after the merger of VEP and VPS, the I. B. E. W. requested
the Company to recognize it in a system-wide unit of employees and
urged that the composition of that unit be comparable in all respects
with that represented by it in VPS. The Company has apparently indi-
cated its willingness to recognize the I. B. E. W. as bargaining agent
for its production and maintenance employees on a system-wide basis
but refused to include in such a unit any of the categories of foremen
sought by the I. B. E. W.6 On June 13, 1945, the I. B. E. W. filed its
petition herein.
We found in our original decision that no contractual bar7 existed
to a determination of representatives. For the same reasons stated in
that decision, we find that we may proceed to a present determination
of representatives with respect to the issue now before us.
A statement of a Board agent, introduced into evidence at the hearing,
indicates that the I. B. E. W. represents a substantial number of em-
ployees among the disputed categories of foremen.8
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 .9
6 A Board decision issued in 1943 (49 N. L . R. B. 1095 ) excluded working foremen from a
unit of production and maintenance employees at V. E. P. Specifically mentioned as working
foremen were local supervisors , combination foremen and welders in the Gas Department,
assistant shop foremen , assistant maintenance foremen, boiler room foremen , and plant elec-
ti icians, all of whom are among the categories in dispute here.
9 The categories of foremen which the I. B. E W. seeks to represent (with the exception
of local supervisors ) are listed on a chart introduced in evidence by the Company ( Company's
Exhibit 17 F) containing classifications of the V. P. S. foremen presently represented by the
1. B E. W. and comparable classifications of V. E. P. foremen . The categories sought are as
follows: foremen (power station efficiency ), shift supervisors , watch engineers , assistant watch
engineers , plant operators , foremen of janitors , foremen-coal handling ( including the em-
ployee listed as "working foreman" ), hydro-maintenance foremen, boiler room foremen (400
pounds), boiler room foreman (900 pounds ), boiler room foreman (200 pounds ), assistant hoilei
room foreman , assistant high pressure boiler room fireman, plant electricians , electrical firemen
(including the 2 employees listed as "working foremen" ), foremen (mechanical maintenance),
assistant maintenance foremen, maintenance foremen, chief maintenance man (mechanical),
substation foremen, plant engineer ( ice), substation foreman (transmission ), shop foreman
(transmission), line foreman (transmission ), line foremen ( including the 2 employees listed as
"working foremen"), underground lines foreman , foreman (underground lines ), emergency
service foremen , foremen of meters and installation , supervisors of appliance service, foremen
(installation ), chief wiring inspectors , labor foreman , foremen (welding and service ), foremen
(service ), gas street foremen, plant operators (Gas Department ), foreman (meter shop ), chief
meter readers, building superintendents , toremen (auto ), garage foremen, and local supervisors.
I The terms of the contract covering the V. E. P. unit and the V . P. S. unit are set out in
footnotes 5 and 6, respectively , of our original decision.
S The Board agent repoited that the I . B. E. W. submitted 85 membership application caids
bearing the names of the disputed foremen listed on the Company 's July 31, 1945 , pay roll.
There are approximately 190 persons in the disputed categories of foremen.
9 The parties appear to be in an agreement that, except for the disputed categories of
foremen and the disputed employees in issue in our original decision , no question of repre-
sentation exists regarding the production and maintenance unit.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE APPROPRIATE UNIT
The I. B. E. W., in seeking the inclusion of the disputed categories of
foremen in a system-wide production and maintenance unit, contends
that these employees are not supervisors. It argues further that, even
if supervisory, these foremen occupy the lowest level in the Company's
supervisory hierarchy and are the type of foremen customarily included
in such units in the power and light industry. The I. B. E. W. has
indicated, in the alternative, that it would desire to represent these
employees in a separate unit, should the Board so determine.
With respect to the primary position of the I. B. E. W., the Company
contends that the foremen are supervisory and, as such, should be
excluded from the production and maintenance unit. In answer to the
I. B. E. W.'s argument that the past history of collective bargaining in
VPS since 1940 supports its position that the foremen should be in-
cluded, the Company points to the prior Board decision excluding
working foremen at VEP from the production and maintenance unit as
supervisors and VEP's past history of collective bargaining consonant
with that Board determination. With regard to the I. B. E. W.'s alterna-
tive position, .the Company contends that no unit of foremen would
be appropriate, and attempts to distinguish this case from the Packard
case10 on the grounds that it is not engaged in a mass production
industry and that the foremen involved here possess greater powers
and authority than did the foremen in that case. The Company argues
further that, even assuming a separate unit of foremen to be appro-
priate, the representation of those foremen by the same organization
which represents the rank and file will be detrimental to the best
interests of the Company.
In its brief, the Company requests that, if the Board rejects its con-
tentions, a "single determination for this group of employees as a class"
be made and that the Board not "determine the unit on the basis of
exclusion of some of these classifications and inclusion of others." How-
ever, at the oral argument, the Company seemed to attempt to distinguish
between the duties and responsibilities of shift supervisors, watch engi-
neers, assistant watch engineers, plant operators, line foremen and local
supervisors on the one hand and those of the remaining disputed cate-
gories on the other hand. In our discussion hereinafter, we shall give
particular attention to these categories apd to others about which some
question exists.
1. The issue concerning the inclusion of disputed categories of foremen
in the production and maintenance unit.
The record in the instant case indicates that the disputed foremen in
both VEP and VPS fall into the lower levels of the Company's super-
30 Matter of Packard Motor Car Company , 61 N. L . R. B. 4.
VIRGINIA ELECTRIC AND POWER COMPANY 507
visory hierarchy, and that, generally, all of them perform comparable
functions and possess similar authority 11 In the prior proceeding con-
cerning the VEP foremen, we found that "Working foremen recommend
disciplinary action, transfer, employment and discharges." It is now, in
effect, contended by the I. B. E. W. that the supervisory status of these
foremen can be established only if a finding is warranted that the recom-
mendations of these employees are effective. The instant record indicates
that the recommendations of the foremen are subject to the approval
of those higher in the Company's supervisory hierarchy, and, at the
hearing, a number of foremen testified with regard to instances in which
their recommendations had not been followed. However, it is clear
from the record that the foremen do make recommendations and that
higher company officials place reliance on them. We are accordingly of
the opinion that these employees have effective power to recommend
changes in the status of their subordinates within the meaning of our
customary definition of the term supervisory.'-
In furtherance of its position in favor of inclusion of foremen, the
I. B. E. W. endeavored to prove that the unit sought by it was customary
in the industry here involved. It introduced into evidence 126 agree-
ments between the I. B. E. W. and various power and light companies
which agreements included foremen in such units. Although the agree-
ments are pertinent on this issue, we are of the opinion that the
evidence is not of sufficient probative value to establish such a custom.
Accordingly, for the reasons stated above, and on the basis of the
entire record, we find that the foremen in issue are supervisory, and
therefore, should not be included in the production and maintenance unit.
2. The issue concerning a separate supervisory unit for the disputed
categories of foremen.
The arguments made by the Company against establishing a separate
unit of foremen have been answered by a majority of the Board in 2
cases issued after the Packard case. In the first of these cases, Matter
of L. A. Young Spring & Wire Corporation,-13 the majority held that
foremen are employees within the meaning of the Act; that as "em-
ployees" they are entitled to be placed in some bargaining unit under
Section 9 (b) ; that the kind of industry in which the foremen are
employed, whether mass production or non-mass production, is immate-
11 As indicated above, those whose functions or powers appear to be distinguishable will be
discussed hereinafter.
12 The I. B. E. W., in support of its contention that the foremen here concerned are not
supervisory , relies upon our decision in Matter of The Toledo Edison Company , 63 N. L. R. B.
217, in which we included certain categories of foremen in a production and maintenance
unit, basing our finding partly on the fact that their recommendations were subject to inde-
pendent investigation. However, we are persuaded that the 2 cases ate distinguishable on their
facts and we therefore do not regard the cited case as controlling here.
is 65 N. L. R. B. 298.
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rial; and that the nature of the duties and responsibilities of foremen is
relevant only insofar as it may bear upon the question of proper grouping
for collective bargaining purposes. In the second case, Matter of Jones &
Laughlin Steel Corporation,14 the majority of the Board held that it had
no power under the Act to limit the choice by foremen of a collective
bargaining representative to an independent, unaffiliated foremen's labor
organization because the Act guarantees to all employees, including fore-
men, the right to bargain collectively "through representatives of their
own choosing," not our choosing. Accordingly, the majority refused to
dismiss a petition filed by an affiliate of the labor organization which
represented the same company's rank and file employees. By the same
reasoning, the Board cannot refuse to entertain this petition.15
Although the Company calls our attention to certain difficulties which
have arisen from the representation of both rank and file and super-
visory employees by the same organization in VPS and appears to
anticipate similar difficulties should we determine upon a separate
supervisory unit for the Company's employees, we are of the opinion,
as indicated in our decision in the Jones & Laughlin case, that these are
matters to be settled by the Company and the bargaining representative
of the foremen through collective bargaining.16 Moreover, we regard
as salutary in this connection the expressed willingness of the I. B. E. W.
to set up a separate local for the disputed foremen in the event the Board
finds a separate unit of these employees to be appropriate.
Unit findings
The unit sought by the I. B. E. W. is essentially a unit of production
and maintenance supervisory personnel who either have direct super-
vision over the rank and file or assist in such supervision. Although those
with direct supervision appear to have more responsibility than those
who assist them in such work, it is apparent that all these employees
have substantially the same duties and supervisory powers with respect
to their subordinates. They also seem to fall within the lower levels of
the Company's supervisory hierarchy, and are themselves subject to
the supervision of other employees not sought by the I. B. E. W. There
appears to be some question, however, in regard to the inclusion of the
following classifications in this unit :
Shift supervisors, watch engineers, plant operators, and assistant watch
engineers: The record appears to indicate that the shift supervisors
la 66 N. L R. B. 386.
15 Like the supervisors in the Jones & I a,cghlin case, the foremen involved in this proceeding
are not policy making officials, although the Company attempted to prove otherwise.
-, Although the Company stresses certain difficulties that have arisen because of the inclusion
of foremen, it nevertheless admits that the history of collective bargaining in V. P. S. has
been, on the whole, successful.
VIRGINIA ELECTRIC AND POWER COMPANY 509
have more responsibilities than the foremen in other disputed categories.
However, it is clear that, like the other foremen in dispute, they directly
supervise some rank and file workers and possess authority similar in
nature to that of the other foremen included in the unit hereinafter
found appropriate. At the oral argument, the Company stressed the
fact that, unlike most of the foremen, all the above categories work on
a 3-shift schedule and, therefore, are frequently in charge of operations
in the absence of higher supervisory employees, who work only during
one shift. As a result, they may independently decide questions, upon
occasion, with respect to which higher supervisory personnel is ordi-
narily consulted. However, it is clear that they actually exercise only
a few of the functions of their supervisors and that they later report to
them on any unusual action taken. We are of the opinion that none of
the above classifications possess attributes warranting its exclusion. We
shall, therefore, include shift supervisors, watch engineers, plant
operators, and assistant watch engineers in the unit.
Line foremen: At the oral argument, the Company stressed the fact
that these employees do much of their work at a distance from the
Company's plants where they are not under the direct supervision of
others and that their recommendations in regard to their subordinates
are accorded special weight. We believe that such attributes do not
differentiate these employees in any material way from the other super-
visory categories included by us in the unit hereinafter found appropriate.
Accordingly, we shall include the line foremen in the unit.
Local supervisors: These employees are the Company's representatives
in the smaller communities. Unlike the other foremen in dispute, they
do not, as a rule, supervise groups of subordinates nor do they themselves
work under the immediate supervision of others.17 Working individually,
they perform a wide variety of functions, some manual, others clerical,
and some of an executive nature. Because of their unique position, these
employees do not appear to have interests in common with the usual
production and maintenance supervisors. We shall, therefore, exclude
them from the unit.
Building superintendents: The building superintendents have under
their supervision janitors and maids who work in the Company's office
buildings. In our original decision in this case, we determined that these
janitors and maids should be included in the clerical unit represented
by the U. W. U. In accordance with our holding in the Jones & Laughlin
case18 that production and maintenance supervisors should be repre-
sented separately from clerical supervisors, we shall exclude the building
superintendents from the unit.
TT The local supervisors report at intervals to the District Managers, The latter are company
officials who appear to occupy important managerial positions.
is See Matter of Jones & Laughlin Steel Corporation, supra,
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chief meter readers and supervisors of meter readers and bill deliv-
erers: The chief meter readers supervise the Company's meter readers
and bill collectors in the VPS area and the supervisors of meter readers
and bill deliverers perform the same functions in VEP territory. The
I. B. E. W. sought to include chief meter readers but not supervisors
of meter readers and bill deliverers, taking the position that the latter
category possessed a greater degree of authority than the former. The
Company contends in its briefthat there is no great difference in the
degrees of authority of the 2 categories. The record supports this con-
tention and, moreover, we note that the Company stated on the record
that it intended in the near future to give all supervisors of meter
readers in both areas the same authority. In view of the facts that both
these categories perform similar functions, that both directly supervise
rank and file workers, and that the difference, if any presently exists
in their respective authorities, is slight, we see no reason to distinguish
between them.
As indicated above, chief meter readers and supervisors of meter
readers and bill deliverers supervise meter readers and bill collectors.
The latter 2 categories are variously classified as meter readers, meter
readers and collectors, collectors, and collectors, jr. These classifications
as a result of an election held pursuant to our original decision have
indicated their desire to be part of the production and maintenance
unit on a system-wide basis. In view of the foregoing and in accordance
with our practice of following in the case of supervisory employees the
bargaining pattern established for the rank and file in the absence of a
history of collective bargaining for supervisors in the industry con-
cerned, we shall include the chief meter readers and the supervisors
of meter readers and bill deliverers in the unit.
Supervisors of appliance service: The Company employs two indi-
viduals within this category, one at Richmond and one at Norfolk. The
one at Richmond, as a result of a recent change, performs a dual func-
tion. In addition to his duties as supervisor of appliance service, in
which he occupies a position comparable to the other disputed foremen,
he also acts as supervisor in the installation and meter department. We
find it unnecessary to decide whether, as the Company contends, the
classification of supervisor of appliance service has ceased to exist at
Richmond as a result of this change. For we are persuaded in any event
that, in the performance of his function as supervisor in the installation
and meter department, the employee in question at Richmond occupies
a position in the Company's supervisory hierarchy similar to other super-
visors whom the I. B. E. W. has agreed to exclude. We shall, therefore,
include the supervisor of appliance service at Norfolk but shall exclude
the individual in that classification at Richmond.
VIRGINIA ELECTRIC AND POWER COMPANY 511
The parties appear to be in agreement that pension workers, pen-
sioners, part-time employees and temporary employees who have been
employed for less than 90 days should be excluded, and that special
temporary employees who have been employed for more than 90 days
be excluded 19 We shall adopt the apparent agreement of the parties.
We find that all foremen (power station efficiency), foremen of jani-
tors, foremen-coal handling (including working foremen doing coal
handling), hydro-maintenance foremen, boiler room foremen (400
pounds), boiler room foremen (900 pounds), boiler room foremen (200
pounds), assistant boiler room foremen, assistant high pressure boiler
room foremen, electrical foremen (including working foremen doing
electrical work), foremen (mechanical maintenance), assistant mainte-
nance foremen, maintenance foremen, substation foremen, substation
foremen (transmission), shop foremen (transmission), line foremen
(transmission), line foremen (including working foremen on lines),
underground lines foremen, foremen (underground lines), emergency
service foremen, foremen of meters and installation, foremen (installa-
tion), labor foremen, foremen (welding and service), foremen (ser-
vice), gas street foremen, foremen (meter shop), foremen (auto), garage
foremen, shift supervisors, watch engineers, assistant watch engineers,
plant operators, plant electricians, chief maintenance men (mechanical),
chief wiring inspectors, plant operators (Gas Department), chief meter
readers, supervisors of meter readers and bill deliverers, the plant engi-
neer (ice), and the supervisor of appliance service at Norfolk, and also
including special temporary employees and temporary employees in the
included categories who have been employed 90 days or more, but
excluding temporary employees who have been employed for less than
90 days, the supervisor of appliance service at Richmond, building
superintendents, local supervisors, and all other supervisors constitute
a unit appropriate for the purposes of collective bargaining within the
meaning of Section 9 (b) of the Act.
III. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which has
arisen be resolved by an election by secret ballot among employees in
the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein, sub-
ject to the limitations and additions set forth in the Direction.20
rV These exclusions and inclusions were directed by the Board in the prior case.
10 As heretofore noted, we regard as salutary the expressed willingness of the I. B. E. W.
to set up a separate local for the foremen in the event the Board finds a separate unit of these
employees to be appropriate. Should the I. B. E. W. effect such a change in organization
within the near future and so notify the Regional Director in timely fashion, he is authorized
to change the designation of the I. B. E. W. on the ballot in accordance therewith.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
SECOND 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 Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations Board
Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representatives
for the purposes of collective bargaining with Virginia Electric and
Power Company, Richmond, Virginia, 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 Fifth Region, acting in this matter as
agent for the National Labor Relations Board, and subject to Article
III, Sections 10 and 11, of said Rules and Regulations, among employees
in the units found appropriate in Section II, above, who were employed
during the pay-roll period immediately preceding the date of this Direc-
tion, including employees who did not work during said pay-roll period
because they were ill or on vacation or temporarily laid off, and includ-
ing 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 election, to determine whether or
not they desire to be represented by International Brotherhood of Local
Unions on V. E. P. Properties, A. F. L., for the purposes of collective
bargaining.
MR GERARD D. REILLY, dissenting :
For the reasons stated in my dissenting opinion in Matter of Packard
Motor Car Company, 61 N. L. R. B. 4, and Matter of Jones & Laughlin
Steel Corporation, 66 N. L. R. B. 386, I am constrained to dissent from
the majority opinion in this case.
There is an additional observation I should like to make, however.
The majority have candidly recognized that the classifications included
in the proposed bargaining unit are clearly supervisory, yet the organ-
ization which has filed the petition to represent them is the same local
of the International Brotherhood of Electrical Workers which already
represents the production and maintenance employees of this utility
system.
It is true that the Board has expressed the hope that these supervisors
will be transferred to another local between the time of the issuance of
this decision and the date of the election. Nevertheless, there is nothing
in the text of this decision which requires such separation. I assume
that such a result is inevitable, in view of the broad grounds upon which
the majority decision in the Jones & Laughlin case was rested. However.
VIRGINIA ELECTRIC AND POWER COMPANY 513
it is worth noting that in this opinion the Board is completely abandoning
all implications in prior cases that there should be some segregation of
representaton as between supervisors and the rank-and-file.
The difficulties with which management will be faced as a result of this
decision have been set forth cogently in the Company's brief. A striking
aspect of this decision, however, is the short-sightedness of the peti-
tioning union in arguing for a ruling which is bound in the long run
to have an adverse effect upon the interests of the union itself, so far
as this industry is concerned. The impingement of this doctrine upon
the organizational activities of rank-and-file unions will soon become
apparent, for in the utility industry, where the preponderance of workers
have been represented by unaffiliated organizations, we have found that
in numerous instances these groups were company-dominated and had
no rights under the Act because of the presence of supervisors among
their membership. In Cleveland Electric21 we laid down a set of rules
which have served as a guide for the industry and the workers with
respect to the permissible limits of organizations activity by supervisors.
Since we are apparently approving in this decision the very activities we
have hitherto prescribed, it is obvious that this Board can no longer
properly restrain the penetration of independent unions by supervisory
employees.
"-' Matter of The Cleveland Electric Illuminating Co 49 N L R B 300