West Penn Power Co.

National Labor Relations Board - Board Decisions

Nov 7, 1962

139 N.L.R.B. 810 (N.L.R.B. 1962)

810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the strike was called off on July 10, 1959, and furthermore , is required to prove
that if such a change in policy was made , it was made for the purpose of and did,
in fact, result in discrimination against the strikers.
If a change in policy or practice did occur, it must have occurred more than a
year before the filing of the first charge on March 14, 1961. Under Section 10(b),
therefore, September 16, 1960, must be the latest cutoff date, more than a year
after the termination of the strike and the failure to employ all strikers who applied
for reinstatement.
As recorded in footnote 2, supra, Case No. 10-CA-4176, the prior case, 133 NLRB
877, is now pending before the Circuit Court of Appeals for the Second Circuit.
In view of my findings set forth above, I do not find it necessary to determine
whether the proviso of Section 10(b) is applicable in the instant case. If it were
necessary to decide the question, I would find that the acts complained of here, even
if the evidence supported them , cannot be construed as continuing violations of such
a nature as would toll the running of the limitation proviso of Section 10(b) of
the Act.
Upon the basis of the foregoing findings of fact , and on the record as a whole,
I make the following:
CONCLUSIONS OF LAW
1. Fitzgerald Mills Corporation , the Respondent herein , is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Textile Workers Union of America, AFL-CIO, is a labor organization within
the meaning of Section 2(5) of the Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
consolidated complaint.
4. The General Counsel has failed by the preponderance of evidence to support
the allegations of the consolidated complaint.
5. The motion of the Respondent to dismiss the consolidated complaint herein
should be granted.
RECOMMENDED ORDER
I recommend that the motion of the Respondent to dismiss the consolidated
complaint herein be granted, and that an order be entered dismissing the consolidated
complaint in its entirety.
West Penn Power Company and Utility Workers of America Sys-
tem Local 102, CIO . Case No. 6-RC-846. November 7, 1962
DECISION AND ORDER
On June 20, 1951, following a consent election, the Board certified
the Petitioner as the collective-bargaining representative of the follow-
ing employees : "All load dispatchers of the West Penn Power Com-
pany who are located in the Springdale, Pennsylvania, power station,
and Charleroi, Pennsylvania, dispatching center, excluding all other
employees and guards, professional employees, and supervisors as de-
fined in the National Labor Relations Act, as amended." There-
after, the parties entered into collective-bargaining agreements cover-
ing this unit.
On February 7 and March 14, 1962, the Employer filed motions
with the Board for clarification and/or amendment of the certification,
contending that certain employees classified as "transmission and dis-
tribution supervisors" were supervisors within the meaning of the
Act, and were not, therefore, properly includable in the bargaining
unit. On March 15, 1962, the Petitioner filed its statement of position
on the Employer's motions.
139 NLRB No. 64.
WEST PENN POWER COMPANY 811
On April 3, 1962, the Board issued an order remanding the matter
to the Regional Director for the Sixth Region for the purpose of re-
ceiving evidence on the issues involved. Pursuant thereto, a hearing
was held on June 11, 14, and 25, 1962, before Alfred C. Dybeck, hear-
ing officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed.
Pursuant to Section 3(b) of the National Labor Relations Act, the
Board has delegated its powers herein to a three-member panel
[Chairman McCulloch and Members Rodgers and Leedom].
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
Prior to September 1, 1960, the employees in the certified unit were
divided into three classifications, namely, Charleroi first load dis-
patchers, Charleroi second load dispatchers, and Springdale load dis-
patchers. On the above date the Employer, as part of certain en-
gineering and organizational changes, essentially a decentralization
program, discontinued and abolished the latter two classifications and
created in their stead the classification of transmission and distribution
supervisors, herein called T & D supervisors.' All employees who had
formerly been Charleroi second load dispatchers and Springdale load
dispatchers were interviewed for the position of T & D supervisor and
all but one of these employees were "promoted" to the new classifi-
cation. Of the 24 T & D supervisors chosen, 18 were former load
dispatchers.
The Employer now centends that the T & D supervisors have greater
duties and responsibilities than the load dispatchers had, and are
either managerial employees or supervisors within the meaning of the
Act. The Petitioner denies this, and contends that the position of
T & D supervisor is not a new job, but entails essentially the same
duties as that of the former Springdale load dispatcher and Charleroi
second load dispatcher. The Petitioner further argues that the new
duties and responsibilities allegedly assigned to the T & D supervisors
are either routine in nature or "paper duties."
Prior to the Employer's effectuation of its decentralization program
on September 1, 1960, its dispatching centers , located in Charleroi and
Springdale, were responsible for the transmission and distribution of
i At the same time, the Employer changed the Charleroi first load dispatcher classifica-
tion to power dispatcher with admittedly no change in duties . On or about June 27, 1962,
the Employer filed a motion to amend its motion for clarification , seeking to introduce
testimony that the power dispatchers were supervisors or managerial employees On
July 17, 1962, the Board denied the motion to amend, in part on the ground that nothing
contained in the motion warranted exclusion of the former dispatchers as supervisors or
managerial employees . Thereafter , the Employer filed a petition for review As nothing
new has been presented warranting either a hearing or a reversal of the Board 's Order
denying the motion to amend the original motion for clarification , the Employer's petition
for review is denied
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
power from the generating stations to the district substations. The
substations broke the power down to lower voltages for distribution
to the Employer's customers. As a means of increasing both its effi-
ciency and economy of operation, the employer established a new
operating center in each of its divisions and converted substantially
all of its substations to a fully automated basis. The T & D supervi-
sors at the operating centers are now responsible for the complete
transmission of power from the generating stations to the customers.
In addition, the T & D supervisors were given the duties formerly
performed by the operating instructors, another classification abolished
by the Employer on September 1, 1960 2 Accordingly, the present
duties and responsibilities of the T & D supervisors consist of work
formerly performed by the Charleroi second load dispatchers and
Springdale load dispatchers, work done by the operating instruc-
tors, and certain duties set forth below not previously performed by
any of the above.
The principal duties of the former load dispatchers, now performed
by T & D supervisors, include : controlling the operation of all substa-
tions, transmission, subtransmission, and communication facilities;
maintaining adequate power and voltage at all important substations;
coordinating both scheduled and emergency outages of all transmission
and substation facilities in their assigned area ; calling out and dis-
patching field personnel to switching locations and, during switching
assignments, directing field personnel in the performance of switching
and tagging operations required to either remove equipment from
service or restore it to service.
All of the above operations, however, involve only predetermined
procedures which are set out in detail by the Employer in its operating
manuals. In cases involving other power companies, the Board has
found such operations not to be indicative of supervisory status, but
rather to be merely a routine exercise of authority not requiring the
use of independent judgment within the meaning of Section 2(11) of
the Act.'
The duties which were performed in the past by the operating in-
structors and are now the responsibility of the T & D supervisors con-
sist of the training of linemen, servicemen, substation operators, and
electricians in switching, and the initial rating and subsequent re-
examination of the aforementioned employees, along with general fore-
men and line foremen, in their switching eligibility. This work re-
quires the T & D supervisors at each of the operating centers to spend
a portion of their time in the field, usually on a rotating basis. The
2 Although witnesses for the Employer testified that the operating instructors were
considered supervisors, no such determination was ever made by the Board, or agreed to
by the parties; nor does the evidence establish that they were supervisors.
s See The Connecticut Light and Power Company , 121 NLRB 768 ; Carolina Power d
Light Company, '80 NLRB 1321 ; Illinois Power Company, 70 NLRB 1043.
WEST PENN POWER COMPANY 813
evidence in the record, however, convinces us that neither the training
nor the rating of field personnel requires the use of any independent
judgment on the part of the T & D supervisors. The job of switching
and the procedure involved in the switching operation is fully set out
by the Employer in its manuals. Thus the T & D supervisor merely
trains the field employees according to the manual and then tests them
on the procedures they have been taught. In addition, a form con-
taining specific questions to be asked as a part of such test is given the
T & D supervisor by the Employer. One of the T & D supervisors
testified that when he was an operating instructor he had no employ-
ees under his supervision and was not authorized to discipline any field
personnel. He further testified that the field personnel, depending on
their category, were supervised by the district operating superintend-
ent, general foreman, district manager, substation foreman, or line
foreman. In these circumstances, it is clear that the training and
rating of employees are of the routine nature only and are not indicia
of supervisory status.
The new duties which the Employer contends are performed by the
T & D supervisors include : assigning and directing the work of com-
munications technicians; recommending disciplinary action to be taken
with employees engaged in switching, and participating in the adjust-
ment of first-level grievances on differences arising from work under
their supervision; attending management meetings; manning the
districts in the event of storms or in emergency situations; controlling
the amount of employee overtime; and being in complete charge of
the division during other than regular office hours. The Employer
relies for the most part on the aforementioned responsibilities as war-
ranting exclusion of the T & D supervisors for the unit as either
managerial employees or supervisors within the meaning of the Act.
The communication technicians repair radios at the substations.
They report to the T & D supervisors and are dispatched by the latter
to whatever substation has need of them. However, the T & D super-
visors testified that they have no personal knowledge with respect to
radio repairs and do not not actually supervise the communication
technicians in their work. Rather, the function of the T & D super-
visor again calls for the application of purely routine direction and
assignment of these technicians.
At the hearing, contradictory statements were elicited from the
T & D supervisors as to their authority to hire, discharge, discipline,
or promote employees, or effectively to recommend such action. Simi-
larly, there was a lack of agreement as to their authority to participate
in the adjustment of grievances. Although the job description for a
T & D supervisor vests in him the authority to discipline employees
and participate in the adjustment of first-level grievances, the Board
must consider all the circumstances, and not merely the Employer's
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
self-serving declarations, to determine whether such supervisory
authority actually exists 4 The record herein contains no mention of
any instance of discipline or recommended discipline by a T & D super-
visor in the period of almost 2 years since the establishment of that
classification. The same is true for the settlement of employee griev-
ances. In fact, the only indication of actual supervisory authority
on the part of any of the 24 T & D supervisors is 1 single recommenda-
tion of a promotion. Certainly, this is too isolated an incident to be
proof that all or any of the 24 are supervisors.
The T & D supervisors attend management meetings. However,
the record does not disclose what matters are discussed at these meet-
ings, and we are not convinced from an appraisal of the duties and
responsibilities of the T & D supervisors that they attend the meetings
in a supervisory capacity. To the contrary, their attendance can be
explained by the fact that they are responsible for the safe and proper
transmission of power from the generating station to the Employer's
customers, pursuant to any operating changes the Employer may put
into effect from time to time.
The T & D supervisors are authorized to call out personnel to man
the districts under specific situations detailed in the Employer's
manual. These situations arise either when the T & D supervisors
have received notice of an approaching storm, or when, for some
reason, the division office is receiving more phone calls than it can
handle. This authority, however, is a routine effectuation of com-
pany policy, fully set out in the Employer's operating manuals.
The granting of overtime by a T & D supervisor takes place most
often in the circumstance where a lineman in the field has been dis-
patched to a trouble spot, but is unable to finish the job without run-
ning into overtime. The lineman may at that time request to be
relieved from performing any overtime work. It is standard proce-
dure under these circumstances for the T & D supervisor to relieve
the employee if another employee is available, but to have the same
employee complete the work (which is almost always of an emergency
nature) if no other lineman can be summoned. The Board has dealt
with this situation before and has found the granting of overtime in
these circumstances to be routine and to fall short of being a supervi-
sory function 5
Finally, there is the fact that the T & D supervisors are in complete
charge of their respective divisions at night, on weekends, and on
holidays. However, there appear to be very few added duties at such
times, and the total work involved continues to be merely routine,
encompassing little more than those duties formerly assigned to the
load dispatchers.
* The Connecticut Light and Power Company, supra.
5 Boston Gas Company, 136 NLRB 219.
AMERICAN MANUFACTURING COMPANY OF TEXAS 815
In view of all the foregoing, and on the basis of the entire record,
it appears that the T & D supervisors are primarily concerned with
the transmission of power from the Employer's generating plants to
its customers, and that their other duties are merely incidental to this
function, and are routine and not indicative of supervisory status re-
quiring the use of independent judgment. In these circumstances, we
find that the T & D supervisors are not supervisors within the meaning
of the Act.
Nor can we find that the T & D supervisors are managerial em-
ployees. Although they receive a salary as compared to the hourly
wages of field personnel, and although their fringe benefits are some-
what higher than those of other employees, there is no evidence that
they participate in the formulation of the Employer's policy matters
or in any other manner qualify as managerial employees.'
As we have herein found that the transmission and distribution su-
pervisors are neither managerial employees nor supervisors within
the meaning of the Act, we shall include them in the unit heretofore
found appropriate.
ORDER
IT IS HEREBY ORDERED that the certification issued in the above-
captioned proceeding be, and it hereby is, clarified by specifically
including in the unit all transmission and distribution supervisors.
6 The Connecticut Light and Power Company, supra.
American Manufacturing Company of Texas and Local 47, Inter-
national Brotherhood of Teamsters , Chauffeurs , Warehouse-
men and Helpers of America . Case No. 16-CA-1386. Novem-
ber 8, 1962
DECISION AND ORDER
On February 6, 1961, Trial Examiner Robert E. Mullin issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. He also found that the Respondent had not engaged
in certain other unfair labor practices as alleged in the complaint and
recommended that these particular allegations be dismissed. There-
after, the Charging Party and the Respondent filed exceptions to the
Intermediate Report. The General Counsel also filed exceptions to
the Intermediate Report together with a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed.. The
139 NLRB No. 57.