Indianapolis Power & Light Co.

National Labor Relations Board - Board Decisions

Jul 23, 1943

51 N.L.R.B. 670 (N.L.R.B. 1943)

In the Matter of INDIANAPOLIS PowER & LIGHT COMPANY and UNITED
MINE WORKERS OF AMERICA , DISTRICT 50 (UTILITIES DIVISION)
Case No. B-5454.-Decided July 23, 1943
Messrs. Arthur L. Gilliom and Karl J. Stipher, of Indianapolis,'
Ind., for the Company.
Mr. Stanley E. Stohr, of Terre Haute, Ind., and Mr. Joe B. Board,
of Indianapolis, Ind., for District 50.-
Mr.' Carl Wilde, of Indianapolis, Ind., for the Association.
Mr. Wallace E. Royster, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by United Mine Workers of America,
District 50 (Utilities Division), herein called District 50, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Indianapolis Power & Light Company,
Indianapolis, Indiana, herein called the Company, the National
Labor Relations Board provided for an appropriate hearing upon
due notice before Robert E. Malarney, Trial Examiner. Said hear-
ing was held at Indianapolis, Indiana, on May 6, 7, 27, 28, and 29,
1943. Prior to the hearing the Regional Director granted a motion
to intervene filed by I. P. & L. Employees Protective Association,
herein called the Association. Also prior to the hearing, the Regional
Director denied a motion of the Company to dismiss the petition.
The Company, District 50, and the Association appeared, partici-
pated, and were afforded full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence bearing on
the issues. At the beginning and the conclusion of the hearing the
Company moved to dismiss the petition. The motion is hereby de-
nied. The Trial Examiner's rulings made at the hearing are free
from prejudicial error and are hereby affirmed. All parties were
afforded an opportunity to file briefs with the Board. The Com-
pany and the Association requested a hearing before the Board for
51 N. L. R. B., No. 113.
670
INDIANAPOLIS POWER & LIGHT COMPANY 671
the purpose of oral argument. Since all issues in dispute are amply
discussed in the briefs, the request is denied.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Indianapolis Power & Light Company is a public utility com-
pany incorporated in Indiana with plants and offices in Indianapolis,
Indiana, where it is engaged in the production and distribution of
electrical energy and steam. The operations of the Company are
conducted in several buildings-chief among them being the main
administration building and the four power plants known as Hard-
ing Street, Hill Street, Perry K, and Perry W. The Company
denies that it is engaged in interstate commerce but concedes that its
operations affect commerce. Since the operations of the Company
cause the transport of large quantities of coal in interstate com-
merce, and since interstate carriers and companies engaged in the
transmission of interstate communications depend entirely upon the
Company for electrical energy to continue their operations, we find
the Company to be engaged in commerce within the meaning of the
National Labor Relations Act."
II. THE ORGANIZATIONS INVOLVED
United Mine Workers of America, District 50 (Utilities Divi-
sion ), is a labor organization admitting to membership employees
of the Company.
I. P. & L. Employees Protective Association is an unaffiliated labor
organization, admitting to membership employees of the Company.
M. THE QUESTION CONCERNING REPRESENTATION
Since 1937 the Association has bargained on behalf of the Com-
pany's employees and has been recognized by the Company as their
exclusive bargaining representative. During this period, the Asso-
ciation and the Company have been parties to collective bargaining
contracts the last of which was effective June 6, 1942, to run to June
16, 1943, and thereafter from year to year, subject to termination
by either party by notice given 60 days prior to an anniversary date.
Neither party has served such notice and both consider the contract
presently to be renewed for another term. On March 26, 1943, how-
i See Indianapolis Power & Light Company v. N L. R. B., 122 F. (2d) 757, dated September
15, 1941 (modified opinion superseding opinion filed May 14, 1941) modifying and enforcing
as modified 25 N. L R. B. 193; certiorari denied, 315 U. S. 804.
672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ever, District 50 requested recognition as the exclusive bargaining
representative of certain of the Company's employees. The Com-
pany refused the request, alleging that the contract with the Asso-
ciation precludes it from according such recognition, and denying
that the unit claimed by District 50 is appropriate. Both the Com-
pany and the Association assert the contract as a bar to this pro-
ceeding and cite our Decision in the Mill B case 2 in support of their
position. The doctrine therein adopted by the Board is patently
inapplicable to the present proceeding. As stated above, the claim
of District 50 was formally made to the Company more than 60
days before the contract renewal date. Since the claim was timely,
the contentions of the Company and the Association are without
merit and we find the contract not to constitute a bar to a present
investigation of representatives.
A statement of the Field Examiner introduced into evidence at
the hearing and a statement of the Trial Examiner made at the
hearing, indicate that District 50 represents a substantial number of
employees in the unit it claims appropriates
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
Since 1937 employees of the Company have been represented by the
Association in a company-wide unit embracing substantially tall non-
supervisory, employees in all categories. The Company and the
Association contend that the all-inclusive unit has been established
by custom and usage as appropriate for the purposes of collective
bargaining and that the Board cannot, at this time, consistently with
its established policies, find appropriate the smaller unit, compris-
ing, essentially, production employees, which District 50 requests.
It appears from the record that the unit covered by the contract, and
for which the Company and, the Association contend, includes ap-
proximately 1,000 employees, widely divergent in skills, wages, and
interests. Among them are plant-protection employees, stenogra-
phers, technicians, laborers, salesmen , bookkeepers, and linemen.
2 Matter of Mill B. Inc., division of Irwin & Lyons, partners , doing business under the
assumed name of Irwin & Lyons, 40 N. L. R B. 346
' The Field Examiner stated that District 50 submitted 245 membership authorization
cards, all bearing apparently genuine, original signatures. One hundred and ninety=nine
cards bore the names of persons whose names appear on the Company 's pay roll of
April 13, 1943. There are approximately' 536 employees in the appropriate unit.
At the hearing, District 50 submitted 26 additional cards to the Trial Examiner. All
bore apparently genuine, original signatures and the names of persons whose names appear
on the Company's pay roll of April 13, 1943.
The Association relies upon its contract to establish its interest.
INDIANAPOLIS POWEIR & LIGHT COMPANY 673
The Company urges that our Decision in the Gulf States Utilities
Company case is determinative of the issues herein 4 In that case
a labor organization represented all employees of the Company in
Louisiana and Texas in a company-wide unit. The petitioner sought
a unit embracing a segment of the employees in certain categories
working in the State of Louisiana. The Board found the unit
sought to be inappropriate in that the operations of the Company
were highly integrated and the interests of the employees were not
circumscribed by political boundaries. Since the petitioner in that
case did not request a company-wide unit in the categories it wished
to represent, the analogy fails. While the history of collective bar-
gaining is entitled to weight in making a determination of the unit,
we do not agree that countervailing factors may not determine that
a unit different from the one so established, will better effectuate the
purposes and policies of the Act.b The issue is clearly drawn. The
Company and the Association desire a unit embracing essentially all
non-supervisory employees of the Company. District 50 seeks a unit
composed of those employees directly engaged in the production and
distribution of electrical energy and steam, excluding office and cler-
ical employees, technical employees, plant-protection employees and
those employees with the authority to hire, discharge, or recommend
such action.
The collective bargaining between the Company and the Associa-
tion from its inception has covered the unit for which both now con-
tend. At best this unit has included two disparate groups, i. e.,
production employees and clericals, which the Board ordinarily sepa-
rates.6 The difference in the type of work performed by these two
groups, the traditional divergence in their social outlook, and the
essential dissimilarity in skills and function, are compelling reasons
for the separation of the clerical euployees from those engaged in
production work. Further, it appears that there is a third classifica-
tion of employees, i. e., technical employees, which we have generally
set apart.? Many of the men employed in technical positions are
college graduates whose economic interests and employment rela-
tions are on a different plane from those of the production or clerical
employees. District 50 requests the exclusion of both clerical and
technical employees and in this respect, as found in Section III,
4Matter of Gulf States Utilities Company, 31 N. L. R. B . 740. The Company also quotes
from the Fourth Annual - Report of the Board , pp. 89-91. The section referred to relates
to disputes as to company-wide and plant -wide units . No such situation here confronts us.
5 See Matter of El Paso Electric Company, 5 N. L. R. B. 56. See also Matter of Boston
Edison Company, 51 N L . R. B. 118.
'See Matter of Pacific Gas & Electric Company, 3 N. L. It. B . 835, and subsequent deci-
sions of the Board.
7 See Matter of Boston Edison Company, supra. See also Matter of The Permanente
Metals CorporatiOn, 45 N. L. It. B. 931.
674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
above, apparently reflects the desires of a substantial number of em-
ployees in the production and distribution services. It is argued by
the Company and the Association that the community of interest found
among workers having the same employer is accentuated, in the case
of a public utility whose operations are closely integrated. How-
ever, it is generally conceded that the interest of the worker is cen-
tered primarily in those working along with him performing duties
of a closely allied nature. As the divergence in work extends, the
community of interest decreases. We are not persuaded that the
interests of office employees and technical employees are identical
or even closely akin to those of production and distribution employees.
Generally speaking, the nature of their duties is strikingly dissimilar;
their working conditions are unlike; and their aims and -ambitions
flow along different channels. We do not agree that the long history
of collective bargaining in a single inclusive unit has necessarily
had the effect of lessening these dissimilarities or of channelizing the
divergent interests. The Company alleges that it follows a policy
of transferring employees among the various categories as the exi-
gencies of its operations may require. An examination of such trans-
fers reveals that they are made almost exclusively from one clerical,
technical, or mechanical category to another and in no way serve to
indicate that all the employees form a homogeneous group. Further-
more, it is not certain that the all-inclusive unit resulted from a con-
sidered decision of the employees. Although the Association asserts
that a large majority of the Company's employees are its members, the
employees have not had opportunity to express their desires in this
respect in an election by secret ballot. We shall extend this oppor-
tunity to those for whom it has been requested and shall find that
production, distribution, and maintenance employees alone consti-
tute an appropriate unit.
We shall list in the Appendix hereto, the categories of employees
which all parties agree may be included in an appropriate bargaining
unit and shall discuss separately in subsections A and B, below, those
categories as to which the parties are in disagreement. As stated
elsewhere in this decision the Company and the Association urge the
inclusion of all nonsupervisory employees and this position is taken
as to the categories listed below.
A. We shall include in the unit, although District 50 opposes such
inclusions :
The six load dispatchers. They have attained their position by
skill and experience. Since their function is to determine the amount
of electrical energy permitted to flow through the various lines and
the sequence of turbine operation, they are directly concerned in the
distribution of electrical energy. While their orders to watch en-
INDIANAPOLIS POWER & LIGHT COMPANY 675
gineers and others must be obeyed, they are in no sense supervisory
employees as claimed by District 50.
The survey engineer. This employee performs work practically
indistinguishable from that done by the meter testers who are in-
cluded in the unit by agreement of the parties. He has no supervisory
authority.
Stock clerks. Although designated as clerks the following em-
ployees perform no clerical duties but are engaged variously in the
receipt, distribution, repair, and salvage of parts in the stores depart-
ment : Cleuts F. Brinker, Thomas A. Chumley, William H. Harmon,
Jr., Eddie S. Lindsey, Clarence I. McClain, Russell A. Mohr, Leslie
A. Means, Joseph Sexson, Ed Stucky, John R. Eubinger, John A.
Weathers, and Ralph Omar White.
B. We shall exclude from the unit, in accordance with the conten-
tions of District 50, all clerical and technical employees, and, in
addition :
The two custodians who work and live at Ipalco Hall. They are
not concerned in the production or distribution of electrical energy.
The two firemen and janitors employed in the Building and
Grounds Department. They are not concerned in the production
and distribution of electrical energy.8
The elevator operator in the Building and Grounds Department
since she is not concerned in the production and distribution of elec-
trical energy. -
The housekeeper in the Building and Grounds Department since all
parties agree she possesses supervisory authority.
The six janitors and five janitresses in the Building and Grounds
Department since they are not concerned in the production and dis-
tribution of electrical energy.
The four mechanics in the Building and Grounds Department since
two of them have supervisory authority and the others do maintenance
work in an office building and are not concerned in the production
or distribution of electrical energy.
The nine bill passers since they are not concerned in the production
or distribution of electrical energy.
The five cashiers since their duties are purely clerical.
The floorman in the cashier's department since he is not concerned
in the production and distribution of electrical energy.
The six collectors since their work is of a clerical or administrative
nature.
The floorman in the Customers' History and Service Department
8 Not to be confused with the five ,firemen and groundsmen, listed in the Appendix, who
• work in the same department. The latter employees work in a power station during
several months of the year.
540612-44-vol. 51-44
676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
since he is not concerned in the production or distribution of elec-
trical energy.
The special investigator since his duties are of a clerical nature.
The 24 meter readers since their work is clerical in nature and is
not concerned directly with the production and distribution of elec-
trical energy.
The transformer engineer since he is a technical employee with
specialized training and experience and would more appropriately
be grouped with others of like education and interests.
The service dispatcher since his duties are of a clerical and admin-
istrative nature.
The technician in the meter and relay department since his formal
training and technical skill suggest his inclusion with others of like
training, skill, and interests.
The special police,,substation watchmen, watchmen, and guards in
all departments, in conformance with the settled policy of the Board,
since these employees are armed, uniformed, under the supervision of
the military authorities, or are otherwise deputized.
The dispatcher in the Service Bureau Office since his work is of a
clerical and administrative nature.
The draftsmen and engineers in the Engineering Department since
these employees are skilled technicians and professionals; more ap-
propriately included with those of similar skill, training, and in-
terests.
The range estimator helper and wiring estimators in the Engineer-
ing Department since their duties are clerical and are more closely
related to sales and engineering problems than to the production and
distribution of electrical energy.
The engineers in the Original Cost Department since their work is
related to fiscal problems rather than to the production and distribu-
tion of electrical energy-
The engineers in the Property Records Department since their work
relates to the valuation and location of property rather than to, the
production and distribution of electrical energy.
The two cafeteria employees since they are not cencerned in the
production and distribution of electrical energy.
The special investigator in the Safety and Personnel Department
since he is not concerned in the production and distribution of electri-
cal energy.
The special representative in the Safety and Personnel Department
since his work is of an administrative nature.
The. two laboratory employees in the Harding Street Power Plant
since they are formally trained technicians whose training and in;
INDIANAPOLIS POWER & LIGHT COMPANY 677
terests set them apart from those in the unit herein found appro-
priate.
The two buyers in the purchasing department since their duties are
purely administrative.
The display floor maid in small appliance sales since she is not con-
cerned in the production and distribution of electrical energy.
The clerks in the Stores Department other than those named in
subsection A, above, since their duties are chiefly clerical.
We find that all production and distribution employees of the
Company, including those categories and individuals named in Sec-
tion IV, subsection A, above, and the Appendix following, but ex-
cluding those categories and individuals set forth in Section IV, sub-
section B, above, as well as all clerks, stenographers, typists, teletype
operators, telephone operators, accountants, billers, collectors, sales-
men, saleswomen, guards, special police and watchmen, engineers,
draftsmen, technical employees, special representatives, administra-
tive employees, and all supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the status
of employees, or effectively recommend such action, constitute a unit
appropriate 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 means of an election by secret ballot among
the employees 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.,
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 2, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Indianapolis
Power & Light Company, Indianapolis, Indiana, 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 Ninth Region, acting in
this matter as agent for the National Labor Relations Board, and
subject to Article III, Section 10, of said Rules and Regulations, among
678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, including 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 themselves in person at the polls, but excluding
any who have since quit or been discharged for cause, to determine
whether they desire to be represented by United Mine Workers of
America, District 50 (Utilities Division), or by I. P. & L. Employees
Protective Association for the "purposes of collective bargaining, or by
neither.
MR. GERARD D. REILLY took no part in the consideration of the above
Decision and Direction of Election.
APPENDIX
Department Categories included in unit
Buildings and Grounds ------- Firemen and Groundsmen.
Electrical Operating :
Appliance Repair and Repairmen.
Electric General.
Dispatchers------------- Load dispatchers.
Electricians ------------ Electricians. ,
Garage_________________ All but stenographers.
Meter Installers --------- All.
Meter and Relay -------- All but clerks, stenographers, and
technician.
Overhead lines ---------- All but clerks.
Street Light Patrolmen__ All.
Substations_____________ All.
Transformer' Repairs_--_ All.
Troublemen ------------ All.
Underground ----------- All.
Mechanical ----------------- All but the clerk.
Power Plants :
Harding Street --------- All but clerks, laboratory employees,
special police, and watchmen.
Perry K--------- ---_-_ All but the clerk, storeroom clerks, and
watchmen.
Hill Street------------- All but the clerk, guard, and watchmen.
Perry W--------------- All.
Steam Heat----------------- All but the clerk and stenographer.
Stores---------------------- None but the individuals listed in Sec-
tion IV, subsection A.