Duke Power Co.

National Labor Relations Board - Board Decisions

Oct 21, 1968

173 N.L.R.B. 240 (N.L.R.B. 1968)

240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Duke Power Company and System Council U-20,
International Brotherhood of Electrical Workers,
AFL-CIO,' Petitioner . Case I1-RC-2716
October 21, 1968
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING , JENKINS , AND ZAGORIA
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held before John J. Connerton, Hearing
Officer. Following the hearing, pursuant to Section
102.67 of National Labor Relations Board Rules and
Regulations and Statements of Procedure, Series 8, as
amended, this case was transferred to the National
Labor Relations Board for decision. Thereafter, briefs
were filed by the Employer and the Petitioner, and
the latter also filed a supplemental brief, all of which
have been duly considered.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds no prejudicial
error. The rulings are hereby affirmed.
Upon the entire record in the case, the Board finds:
1. The Employer is engaged in commerce within
the meaning of the Act2 and it will effectuate the
policies of the Act to assert jurisdiction herein.
2. The labor organization3 involved claims to
represent certain employees of the Employer.
3. The Employer is a North Carolina corporation,
operating as a Public Utility within and between the
States of North and South Carolina, and is engaged in
the generation, distribution and sale of electricity.
The function of distributing the power is performed
by the Employer's Distribution Department. Each of
the 18 districts in the Distribution Department is
fully equipped to serve on a day-to-day basis cus-
tomers located within its geographical region. These
districts contain 68 branches, most of which, de-
pending upon the number of people within their
geographical region, can either function as do the
districts, or be a mere collection office. In most of the
districts and a few of the larger branches there are
operation centers,' which are composed of the five
1 The name of the Petitioner appears as amended at the hearing.
2 During the past 12-month period , the Employer had gross revenues
m excess of $250,000 , and during the same period received materials for
use at its facilities within North and South Carolina , from points outside
both States , in excess of $50,000.
3 Though the Employer refused to stipulate that the Petitioner is a
labor organization within the meaning of the Act the record shows that
the Petitioner is made up of a combination of six local unions that
represent various employees of the Employer These local unions are
173 NLRB No. 41
subdepartments that come under the Distribution
Department, namely- Line Department, Meter De-
partment, Service Department, Stores Department,
and Engineering Department
The Employer and various locals of the IBEW have
been parties to contracts spanning many years. The
latest of these covers the approximately 115 "units"
for which one or another local has been recognized
voluntarily by the Employer over the years. As each
"unit" was recognized, it was added to the parties'
contract. The current contract, as with several pre-
ceding it, provides for uniform conditions of employ-
ment, including classifications and wages. All provi-
sions, with the exception of seniority, span "unit"
lines Bargaining has been conducted jointly with the
various locals that have been recognized in the many
units. The parties have long bargained in an overall
unit, which is composed of, and has subsumed, the
many so-called smaller units. We therefore find that
the employees covered by the contract constitute a
single unit.
The Petitioner, System Council U-20, is a com-
posite of the six local unions of IBEW (to wit, Local
Unions 355, 407, 745, 913, 957, and 962) that
currently jointly represent the employees in this unit.
The parties' current contract covers some 850 "phys-
ical labor" employees in the Distribution Department,
and 35 clerks from the Line, Meter, and Service
Departments. The Petitioner seeks an election in a
unit that includes these 885 employees, plus the
remaining physical labor employees in the Distribu-
tion Department, and the clerks who work in the
operation centers. In its brief this is referred to as a
systemwide unit of employees in the Distribution
Department, apparently excluding the engineering
subdepartment, except for the engineering clerks here
sought.
The Employer's first contention is that the petition
raises no question concerning the representation of
approximately 885 of the employees sought, as the
parties' current contract is a bar to an election among
them. We find no merit in this contention. Even
though this proceeding involves a bargaining unit now
represented by the Petitioner, the Petitioner, under
established Board principles, is entitled to the benefits
of Board certification.' Thus, the Petitioner would be
entitled to an election for purposes of gaining
certification in the historical unit. However, it does
not seek an election in that unit. Rather, it claims to
represent the employees in the overall unit, including
chartered by the IBEW and accept into membership employees of the
Employer. The employees participate in the operation of the Union and
part of the purpose of the Union is to deal with the Employer
concerning wages, hours, and working conditions . Petitioner has used
the processes of the Board in the past and has been a party to at least
two representation proceedings The Board is satisfied that the
Petitioner is a labor organization within the meaning of the Act.
4 There are 13 districts and 2 branches with operation centers
5 Bell Aircraft Corporation , 98 NLRB 1277, 1278
DUKE POWER CO.
both the currently represented employees and the
currently unrepresented (approximately 415) em-
ployees. The contract cannot, of course, bar an
election as to those employees currently unre-
presented.
We find, accordingly, that a question affecting
commerce exists 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 appropriate unit.
The overall organization of the Employer's opera-
tions is set forth in detail under section 3 above. The
Petitioner, as pointed out, seeks an election in the
entire Distribution Department; it describes the al-
leged appropriate unit as follows- All employees in
the Distribution Department, including linemen, ser-
vicemen, truck drivers, groundmen, cable splicers,
helpers, meter testers, meter readers, garage me-
chanics and attendants, water meter testers, special
equipment operators, water plant operators, laborers
(Distribution), janitors, and operation center clerks
(Distribution), excluding employees outside the Dis-
tribution Department, office clerical employees, su-
pervisors and those excluded by the Act.
There are employees throughout the systemwide
Distribution Department who are in identical classifi-
cations and who perform identical or substantially
similar job functions who are represented by the
Petitioner at one or more operation centers, or in one
or more branches or districts, but who are unrepre-
sented in others, because the Employer has in the past
granted recognition to the Petitioner on that basis.
The makeup of the unit has thus become neither
geographically nor functionally coherent.
The Employer is in substantial agreement that an
overall unit would be appropriate.' It argues however,
first that the current contract is a bar to any election,
and in the alternative that, if there is to be an election
it should only be a self-determination election among
the 415 unrepresented employees in the Distribution
Department.
The contract bar issue we have settled above. Based
upon the parties' agreement, and the entire record in
this case, we are satisfied that the overall unit is an
appropriate one. Indeed, a unit encompassing only
the 885 employees which the Petitioner represents,
and excluding the remaining 415 employees still
unrepresented, would, in the absence of a bargaining
history, have been beyond question an inappropriate
unit. The unrepresented group here derives from
historical accident, not from any real difference in
b Its positions as to engineering clerks and store clerks are dealt with
below.
7 Cf. The Martin Co., 162 NLRB No. 20, where an identifiable
group of unrepresented technicians was found an appropriate voting
group, without reaching the question of their appropriateness as a
separate unit.
8 D. V. Displays Corp, etc, 134 NLRB 568, 571.
9 These store clerks form two groups One group does certain
241
functions. It is an unidentifiable fragment, and the
result of a Union defeat in the fragmentized unit
would be to preserve a unit which could derive its
appropriateness only from the bargaining history.
Upon consideration of all the facts in this case, we
find that the unrepresented group is not entitled to a
self-determination election,' that the parties' contract
does not bar an election in a unit including the
covered employees, and that an election should be
held in the overall unit herein found appropriate.'
We turn to the final question of the inclusion or
exclusion in the appropriate unit of the engineering
clerks and store clerks.' The Petitioner contends that
both the engineering clerks and store clerks should be
included in the unit, stating in essence that the nature
of their work gives them a close community of
interest with the other clerks and employees that are
included in the unit. The Employer believes that both
these groups should be excluded, contending that the
store clerks are really office clerks (who are ex-
cluded), and that the engineering clerks should be
excluded as technical employees. Further, it argues
that even if they are not found to be technicals, they
do not possess the requisite community of interest to
be included with the other employees.
The duties of the store clerks consist of requisi-
tioning and keeping inventory of the materials they
have on hand. In each of the operation centers there
are other clerks (the "physical store clerks" spoken of
above) who go into the storage areas to take
inventory and physically move stock. The store clerks
in question also occasionally perform these functions.
The store clerks and physical store clerks are in the
same departments, work under the same supervision,
work the same hours, and enjoy fringe benefits
identical to the physical clerks and others included in
the unit. They are located in buildings separate from
those in which office clerical employees work, and
work in conjunction with physical store clerks on a
daily basis. We find that the store clerks perform
duties typical of plant clerical employees. We here
find that their duties and interests are closely related
to those of physical store clerks and other production
and maintenance employees, and we shall include
them in the unit found appropriate.' o
With regard to engineering clerks, the record shows
that their duties consist of making load studies and
short circuit calculations, assisting the engineer and
making minor surveys, handling lighting requests, and
assisting in the design of the overhead and under-
ground installations to homes and industrial cus-
physical labor described below. These store clerks will be called
"physical store clerks " The Employer agrees they should be included.
The other group keeps records on the inventory and it is this group that
we are concerned with. We will refer to them simply as store clerks
10 See, e.g ., Raybestos Manhattan , Inc., 115 NLRB 1036. The
Board ordinarily will include plant clericals in a production and
maintenance unit unless the parties have agreed to exclude them.
242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tomers In essence their job is an apprenticeship
consisting of on-the-job training If they become
proficient, they will be advanced to the position of
assistant engineer Their contact with the employees
from the Line and Service departments comprises
only 10-15 percent of their work The engineering
clerks' entire function is to aid and inform the
engineers Their immediate supervisor is either an
engineer or an assistant superintendent in charge of
engineering, and they are considered part of the
Engineering Department 1' Considering all pertinent
factors, especially the engineering clerks' separate
supervision and departmental location, and the nature
of their job as an apprenticeship to employees
excluded from the unit, we shall exclude engineering
clerks from the unit as they do not possess the
requisite community of interest with those included
in the unit
11 This is as opposed to the line service and meter clerks who work
under a line supervisor or a meter supervisor etc in their own
respective departments
12 An election eligibility list containing the names and addresses of
all the eligible voters must be filed by the Employer with the Regional
Director for Region 11 within 7 days after the date of this Decision and
Accordingly, we find that the following employees
constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act
All employees in the Distribution Department,
including linemen, servicemen, truck drivers, ground-
men, cable splicers, helpers, meter testers, meter
readers, garage mechanics and attendants, water
meter testers, special equipment operators, water
plant operators, laborers (Distribution), janitors, and
operation center clerks (Distribution), excluding all
employees outside the distribution department, en-
gineering clerks (operation center), office clerical
employees, supervisors as defined in the Act, and all
other statutory exclusions
[Text of Direction of Election' 2 omitted from
publication ]
Direction of Election The Regional Director shall make the list
available to all parties to the election No extension of time to file this
list shall be granted by the Regional Director except in extraordinary
circumstances Failure to comply with this requirement shall be grounds
for setting aside the election whenever proper objections are filed
Excelsior Underwear Inc 156 NLRB 1236