Sierra Pacific Power Co.

National Labor Relations Board - Board Decisions

May 12, 1944

56 N.L.R.B. 458 (N.L.R.B. 1944)

In the Matter of SIERRA PACIFIC POWER COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL B-1245, A. F. L.
Case No,. 20-R-1034.-Decided May, 12, 194 ,
Thatcher & Woodburn, by Mr. William, J. Forman, and Messrs. F.'.
A. Tracy and H. P. Dayton, of Reno, Nev., for the Company.,
-41r. C. P. Hughes, of Las Vegas, Nev., Mr. Charles W. Mason, of
San Francisco, Calif., Mr. Oscar A. Holstrom,, of Verdi, Nev., for the.
IBEW. ,
Mr. J.,B. Harker, of North Verdi, Nev.; ,and Mr. Harrold _O. Taber,
of Reno, Nev.; for the Independent.
Miss Frances Lopinsky, of counsel to the Board,
DECISION
AND ,
DIRECTION OF ELECTION
STATEMENT OF THE CASE,
Upon a petition duly filed by•International Brotherhood of Elec-
: trical Workers, Local B-1245, A. F. L., herein called the IBEW, al-
leging that a question affecting commerce had arisen concerning the
representation of employees of Sierra Pacific Power Company, Reno,
Nevada, herein called the Company, the National Labor Relations
Board provided for an appropriate hearing upon due notice before
Louis S. Penfield, Trial Examiner.' Said hearing was held at Reno,
Nevada, on March 21, 1944. The Company, the IBEW, and Sierra
Utility Workers' Union, herein called-the Independent, appeared and
participated. All'parties were afforded, full opportunity to be heard,
to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues., The Trial Examiner's rulings made at the
hearing are, free from prejudicial error, and arehereby affirmed. All
parties were afforded an opportunity to file briefs with the Board.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Sierra Pacific Power Company, a Maine corporation engaged in the
manufacture, sale, and distribution of electrical'energy in northwestern
56 N. L. R. B., No. 89. S
458 '
SIERRA PACIFIC POWER COMPANY 459
Nevada and eastern California and of gas and water in the State of
Nevada, has its general office at Reno, Nevada . It serves an area of
approximately 15,000 square miles and owns franchises and distributes
electrical energy in numerous. towns located in both Nevada and Cali-
fornia. The Company owns and operates, five' hydroelectric stations,
four located in ' the State of Nevada and one in the State of California.
During the year 1943, the Company generated, purchased , and dis-
tributed throughout its system in both Nevada and California approxi-
mately 124,000,000 kilowatt hours of electrical energy, approximately
26 percent of which was purchased from Pacific Gas & Electric Com-
pany and was generated in California and, delivered to the Company
in that State.
The Company admits that it is engaged in commerce within the
meaning of the National .Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
• International Brotherhood of Electrical Workers , Local B-1245,
affiliated with the American Federation of Labor, and Sierra Utility
Workers ' Union, are labor organizations admitting ' to membership
employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
The Independent was incorporated in 1938 for the purpose of rep-
resenting employees of the Company in collective bargaining with
the Company, and was in that year recognized by the Company as the,
exclusive bargaining representative of its employees . The Company
and the Independent thereupon entered into a written agreement pro-
viding for the creation of a Conference Board made up of an equal
number of employer and employee members , to discuss and handle
labor relations problems. The agreement set out rules governing the
operation of the Conference Board and provided for arbitration ma-
chinery should the members become deadlocked on a matter of policy.
The agreement is terminable at any time by either party upon prior
written notice to the other party. In March 1944 , the Company and
the Independent executed a memorandum, which purports to reduce
to writing all of the agreements reached through the machinery, of
the-,Conference Board.
In February,1944 , the IBEW requested recognition as the exclusive
bargaining representative of employees in the Company's physical
fofee. The Company refused recognition on the grounds that it
doubted the IBEW's majority and the appropriateness of its proposed
unit, and that it-was bound by an existing contract recognizing the,
Independent . The IBEW contends that the agreement of 1938 is not a
4
460 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
bar to a present determination of representatives because it is not a
collective bargaining contract. Since the agreement, whatever its
status, has been in effect for. 6 years, and since it is of indefinite dura-
tion, we find, it no bar to this 'proceeding., The memorandum of
March 1944, having been executed after the parties had been informed
of the interest of the IBEW, has no greater effect.2
A statement of a Board agent, introduced into evidence at, the hear-
ing, indicated that the IBEW represents a substantial number of em-
ployees in the unit hereinafter found appropriate.3
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.
IV. THE APPROPRIATE UNIT
The IBEW'claims that a unit comprised of the employees in the
Company's physical ' force, excluding clerical and supervisory em-
ployees, is appropriate for the purposes of collective bargaining. The
Company and the Independent contend that the appropriate unit
should include both the physical force and the clerical force of the
Company, the unit covered by their existing contract entered into in
April 1938. The parties further disagree upon the classification of
certain employees into the categories "physical force," "clerical force,"
and "supervisory empl"o"yees." '
The Company services a wide area, but since a part of it is habitable
only in summer, and construction and repair work can be done during
the winter months in only a small portion of the area, its employees
are relatively few in number and are widely scattered. The majority
of its clerical employees are employed in its Reno, Nevada, office. In
the small towns and districts which the Company serves, clerical work
is performed by agents doing both physical and clerical work, some-'
times with the aid of a part-time clerical employee. A, few full-time
clerical employees are employed outside the Reno office.
The Company and the Independent base their contention that a'
unit including both clerical and physical force employees is appro-
priate on the close integration of the Company's operations and the
fact that the Independent has for 6 years bargained for employees in
such a unit. Since 1938, grievances and working conditions of clerical
employees as well as of other employees have been considered by the
i See Matter of Toyad Corporation, 52 N. L. R. B. 1241
2 See Matter of Eacor, 46 N L. R B 1035-
3 The Field Examiner reported that the IBEW submitted 58 application-for-membership
cards, 53 of which were undated Three were dated November .1943, 2 December 1943.
At the time of the hearing there were 97 persons employed in the unit.
A witness for the Independent testified that at the time of the hearing the Independent
had 115 paid-up, members, 26 who 'were delinquent,. and 6 who had been suspended.
SIERRA PACIFIC POWER COMPANY 461
Confereiice^ Board, ' and clerical employees have from time to time
served as Independent representatives on that Board. The IBEW con-
tends that clerical and .manual workers have, such widely divergent
interests, and that their working conditions are so dissimilar, that they
cannot effectively be represented in a single unit for the purposes of
collective bargaining. We have generally found this to be true. The
issue raised by the' contentions of the parties herein' has been thor-
oughly examined and determined by this Board in several recent cases
in which we have found that a bargaining history based upon repre-
sentation of clerical and,manual workers in a single unit is not deter-
minative of the appropriateness of such a unit, and that the physical
or production and maintenance employees of a utility company can
best be represented for the purposes of collective bargaining in a sep-
arate unit, apart from clerical and other employees.4 We take the
same view here, and we find, accordingly, that the appropriate bar-
gaining unit for employees affected by this proceeding is restricted
to the Company's physical force.
The Company and the Independent would include,in the appropriate
unit and the IBEW would exclude from the unit, the following cate-
gories of employees :
Foremen: Persons classified variously as line foremen, flume fore-
men, junior and senior foremen, and reservoir foremen supervise di-
rectly the work of most employees. Such foremen have crews of from
2 to 10 and in all instances work with their crews. ' The amount of
physical labor they perform varies inversely with the size of the crew.
They work under the supervision of the superintendents in charge
of their respective divisions who normally handle hiring, discharging,
and promotion. Because of the great distances involved, however,
foremen are seldom subject' to direct supervision. They have author-
ity to hire in emergencies and during normal times their recom-
mendations are given weight in matters `of hiring, discharging, and
promoting. One, employee' in the Electric Line Crew is classified 'as a
"supervisory foreman." He was formerly head line foreman but be-
^cause of his age'has been given a job which is primarily to lay 'out and
inspect the work of the linemen. He has no men under him but his
recommendations are accepted regarding the qualifications of men in'
the line crew. We find that the foremen, including the "supervisory
foreman," are supervisory employees and shall exclude them from the
unit.
Agents: Agents are in charge of the Company's business within
particular towns or localities. The areas over which they have juris-
4 See Matter of Boston Edison Company, 51. N L. R. B 118; Matter of Indianapolis
Power & Light Company, 51,N. L. R. B 670; Matter of Westinghouse Electric & Manu-
facturting Company , Lighting Division , 53 N. L. R . B. 1073; Matter of Commonwealth
Edison Company, 55 N. L R. B 431. 1
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
diction are small and- they generally work alone, personally keeping
lines in repair, making installations, making collections, and adjusting
customers' complaints. The agent's wife,-who answers the telephone
and takes messages or accepts payment of bills for him while he is out,
is generally carried on the Company's, pay roll as part of his staff. In
emergencies an agent may hire workmen to help him. Since they
represent the-Company to the public in the vicinity of their-operations,
and since they do' at times exercise supervisory authority, we shall
exclude agents from the unit.'
The district manager Portola District: The Portola District differs
from other, districts in the Company's system in that it has no district
superintendent but is under the direct supervision of the Reno office.
The Company's representative at Portola is classified as a district
manager. His functions and duties are comparable ,to those of the
agents above described. We shall, therefore, exclude him from the'
unit. -
The storekeeper works with the assistant storekeeper in the Reno
warehouse, receiving and handing out supplies. . These employees
keep records of supplies received and disbursed but most of their work
Js manual. The storekeeper has the same authority as foremen and
agents to make recommendations concerning his subordinate. He is,
therefore, a supervisory employee whom we shall exclude from • the-
unit. Since the work of the assistant storekeeper is predominantly
manual, and since all of•his contacts are with physical force employees
and not'with• clerical employees, we shall include him in the"unit.
'Switchboard operators and cashiers: There are two persons outside
the-Reno officeAassified as "switchboard operators" and two as cashiers.
All are wives of Company representatives in, the outlying districts
and perform whatever work they do-for•the Company in their homes.-
, The former do not operate switchboards but merely answer the tele-
phone and note complaints and' messages: The latter perform sub-
-stantially the same duties, and in addition, accept payment of-the -Com-
pany.s bills and issue receipts. These employees have no contact with
the employees in the 'physical force, and since- their duties are clerical
in, nature we shall exclude them from the unit. •
Janitors and janitresses: The Company employs a full-time janitor
at the Reno office and a part-time janitress at its Lovelock District
office. The work of these employees is neither clerical nor similar to
that of the employees within the unit. Since, however, the contacts
of the janitor and janitress are only with clerical employees, we shall
-exclude them from the unit herein found appropriate. • '
Engineers and estimators work in the office and,in the field. They
are, graduate engineers performing intricate technical work. Their_. -
Matter o f Missouri Utilities Company, 54 N. L. R B. 37
i
SIERRA PACIFIC POWER COMPANY 463
background and training and the technical character 'of••their work
make their interests divergent from those of physical force employees B
We shall,'therefore, exclude them from the unit.
Clerk, Electric Meter Department: This clerk is primarily a mes-
senger who carries, messages to and from all departments in the- Reno
vicinity. He does not associate exclusively with any one group of
employees. Since, in our opinion; the nature of his work is more
-nearly clerical than manual, we shall exclude him from the unit.
We find that all employees of the Company's physical force, includ-
ing linemen and apprentice linemen, watchmen, guards,' operators,
substation operators', ditch tenders, repairmen; laborers,- groundmen,
servicemen, electricians, lnetermen, gas plant operators and appren-
tices, fitters and fitters' helpers, mechanics and mechanics' apprentices,
blacksmiths, meter readers, and assistant storekeeper, but excluding
Company officials, district superintendents, district managers, agents,
foremen, radio trouble-shooter," storekeeper, janitors and janitresses,
collectors, engineers and estimators, clerical employees, switchboard
operators and cashiers, the clerk in the Electric Meter Department,
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, constitute a unit appro-
priate for the purposes of collective bargaining within the meaning, of
Section 9 (b) of the Act.' -
V. THE DETERMINATION OF REPRESENTATIVES
We shall' direct that the question concerning representation -which
has arisen be resolved by an election by' secret ballot among the em-
ployees in the appropriate unit who were employed during the pay-
roll period immediately preceding the date of the Direction of Election
herein, subject to the limitations and additions set forth in the
Direction.
During the summer months, the Company hires a number of persons
to perform certain jobs that can be performed only in summer. The
parties advanced no 'contentions as'to-the eligibility to vote of such
employees who might be on the pay roll of the Company when the
election hereinafter' directed its held. The record does not disclose
what percentage of the Company's total complement of employees these
employees' constitute, nor whether or not the sane workmen are hired
by, the Company year after year to perform the construction and repair
6 See Hatter of Indianapolis Power & Light Company, supra
' The guards and watchmen are not members of the auxiliary military police
'This person is not a regular employee of the Company . He is called upon to work
whenever it is reported that the Company 's lines are inteifering with radio reception.
0 The parties are in agreement as to all the categories included and excluded above
except those specifically discussed herein.'
464 DECISIONS 'OF NATIONAL-LABOR RELATIONS BOARD
work which of necessity must be done during the summer months. We
hold' that these employees, if hired for a special project to work only
until the, completion of that project, are ineligible to vote in the elec-
tion. However, those who are hired for an indefinite period, or who
have a substantial expectancy of regular stunmer employment with the
Company, are eligible to vote in the election.
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, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Sierra Pacific
Power Company, Reno, Nevada, 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 Twentieth 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, and the find-
ings in Section V, above, among the employees in the unit found
appropriate in Section IV, above, who were employed during the pay-
roll period immediately preceding the date of this Direction, includ-
ing 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 them-
selves in person at the polls, but excluding those employees who have
since quit or been discharged for cause aiid have not been rehired or
reinstated prior to the date of the election, to determine whether they
desire to be represented by International Brotherhood of Electrical
'Workers, Local B-1245, affiliated, with the American Federation of
Labor, or by Sierra,Utility Workers' Union for the purposes of collec-
tive bargaining, or by neither.