Kentucky Utilities Co.

National Labor Relations Board - Board Decisions

Jan 6, 1943

46 N.L.R.B. 818 (N.L.R.B. 1943)

In the Matter of KENTUCKY UTILITIES COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS (A. F. OF L.)
Case No. R-1k578.-Decided January 6, 1913
Jurisdiction : electric, water, ice, and gas utility. -
Investigation and Certification of Representatives : existence of question : refusal
to accord recognition without Board certification ; election necessary.
Unit Appropriate ,for Collective Bargaining : part of previously-determined
system-wide unit held appropriate in light of changed circumstances ; all pro-
duction, maintenance, and construction employees of one division, with specified
inclusions and exclusions, held appropriate.
Mr.' Squire R. Ogden, of Louisville, Ky.,, and Mr. E. W. Brown, of
Lexington, Ky., for the Company.
Mr. W. H. Wilson, of Akron, Ohio, and Mr. Ira Braswell, of Win-
chester, Ky., for the Union.
Miss Melvern R. Itrelow, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon petition and amended petition duly filed by International
Brotherhood of Electrical Workers (A. F. of L.), herein called the
Union, alleging that a question affecting commerce had arisen con-
cerning the representation of employees at the Central Division of
Kentucky Utilities Company, Lexington, Kentucky, herein called the
Company, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Paul S. Kuelthau, Trial Ex-
aminer. Said hearing was held at Lexington, Kentucky, on November
20, 1942.,, The Company and the Union appeared, participated, and
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 are,hereby affirmed. At the hearing the Com-
pany filed a motion to dismiss the petition on the ground that the unit
sought herein by the Union is inappropriate, since there has been no
46 N. L. R B., No. 91.
818 '
KENTUCKY UTILITIES COMPANY 819
change in circumstances warranting a departure from the system-wide
unit found appropriate by the Board in a prior decision.' The Trial
Examiner reserved ruling. For reasons hereinafter set forth, the
motion is hereby denied. After the hearing was concluded, the parties
entered into a stipulation providing that the transcript be corrected
in certain particulars. Said stipulation is hereby made a part of the
record.
On December 2, 1942, the Company filed a brief \yl ich the Board has
considered.
Upon the entire record in the case, the Board- makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Kentucky Utilities Company, a Kentucky corporation, is engaged in
supplying electric; gas, water, ice,, and, hits service 'in the State of
Kentucky. The common stock of the Company is owned by the Middle
West Corporation, a holding company. Old Dominion Power Com-
pany, Dixie Power & Light Company, and South Fulton Light &
Power Company are subsidiaries of the Company. On _ or about
January 1, 1940, Lexington Utilities Company, a subsidiary of the
Company prior thereto, was dissolved and its properties and assets
were acquired by the Company. In January 1941, the Company ac-
quired the assets and properties of Kentucky Power & Light Company.
During 1941, the total sales of electric energy was 543,337,428 kilo-
watt hours. Of this amount, the Company- delivered 64,620,570 kilo-
Watt. hours outside-, the -State of Kentucky, and received 51,651,533
ilowatt'hou`rs! from` biAside the Stitte'of'Kentucky. The''Company
supplies electric energy-to interstate railroads, telegraph companies,
alid radio stations. The Company supplies electric energy for' navi-
gation lights on the Kentucky,and Ohio Rivers, and for the operation
of .locks and dams. In 1941, the Company. purchased from points
outside the. State of Kentucky, $120,000 worth of copper, wire and
cables, $36,000 worth of.poles, $182,000 worth of transformers and
meters; and about $285,000 worth of merchandise and appliances.
H. THE ORGANIZATION INVOLVED
International Brotherhood of Electrical Workers is a labor organ-
ization affiliated with the American Federation of Labor, admitting
to membership employees of the,,Company.
i See Matter of The Middle West Corporation et at. and International Brotherhood of
Electrical Workers (A. F. of L.),,1365 S. 6th Street, , Paducah, Kentucky , 10 N. L. It B 018.
H2O DECISIONS OF NATIONAL LABOR RELATION-IS BOARD
III. THE QUESTION CONCERNING JZEPRESENTATION
On August 31, 1942, the Union informed the Commissioner of
Conciliation and Arbitration for the State of Kentucky that it'repre-
sented a majority of the Company's employees in-the Central Divi-
sion. The Commissioner forwarded a copy of the Union's letter to the
Company, requesting an election or pay-roll check for the purpose of
determining the Union's majority." During the month of September,
1942, the Company replied that the matter of recognition of the
Union should be decided by the Board'.
A report prepared.by a Field Examiner of the Board, and intro-
duced in evidence at the hearing, indicates that the Union represents a
substantial number of employees in the unit hereinafter found to be
appropriate.2
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 National Labor
Relations Act.
IV. THE APPROPRIATE UNIT
The Union contends that a unit, consisting of all employees of the
Central Division of the 'Company, with certain -inclusions-and exclu-
sions noted below, is appropriate. The Company urges that a system'
wide unit is appropriate, and in addition, differs with the Union as to
the classifications of employees to be included and excluded.
In 1938 the Board found appropriate a unit consisting of all em-
ployees in the gas, water, electric, and ice departments, with specified
exclusions, of the Middle West Corporation, Kentucky Utilities Com-
pany, Kentucky Power & Light Company, and Old Dominion Power
Company, and directed an election.3 This unit was. the one sought
by the Union, which, as here; was -the., only labor organization in-
volved. The Union lost the election. The Union's 'contention herein
is that the Central Division is an appropriate collective 'bargaining
unit because it is substantially independent of the other divisions and
because self-organization of employees of the Company is at present
confined to the Central Division.
The Company's main office is located in Lexington, Kentucky,
where its general policies are determined and the executive control
of the Company is centered. For managerial and operating purposes,
the Company's system is separated into 5 geographical divisions with
' The Field Examiner reported that the Union submitted 56 authorization cards dated
in July and August 1942 , 1 undated . Of the 56 cards presented , 53 bear apparently
genuine signature's of persons whose names appear 'on the Company 's pay-roll list dated
October'3 , 1942 . Said pay roll 'contained 129 names of persons in the unit hereinafter
found to be appropriate
See footnote 1, supra.
KENTUCKY UTILITIES COMPANY, 821
the number of employees in the various divisions ranging from 147
to 261. Each division has a division manager as its administrative
head. :Within each division- are districts, and , each district has an
administrative head known as a district or local manager. The vari-
ous operations within the division are in charge of certain supervisory
officials., The' division managers,, before hiring or discharging em-
ployees within the divisions, must secure authorization from the main
office in-Lexington. 'In emergencies, the division managers may hire'
people to work in their divisions on a temporary basis without first
obtaining such authorization. All employees are engaged in similar
duties throughout the system.- Except as to some slight differential
in, the wages of certain classes of employees in one division, brought
about by the fact that living costs in and near that division are higher
than elsewhere in the system, the wages and hours of, work of all
employees throughout the system are ' similar. There are occasional
transfers of employees from one division to another. , However, the
duties, responsibilities, and functions of employees within each di-
vision are principally confined to that division:
As we have previously stated`, a prior determination of an appro-
priate unit is not necessarily controlling,4 and where there has been
material change in circumstances we will depart 'from our earlier
determination.5 Here we observed first that whatever may earlier,
have been the situation, no employee self-organization -of any conse-
quence now exists on, a system-wide basis. The Union,, which is the
only organization involved, has disclosed evidence of substantial
membership only in the Central Division, indicating the present desire
of those employees -to secure the bei efits of collective bargaining.e
Although a,system-wide unit, as urged by the Company, would-not be
inappropriate, the record shows that the employees in the Central
Division are an integrated and "identifiable group and can"effectively
function as a unit-for the purposes of collective bargaining, pending
more complete organization in the other divisions. Under these
circumstances, we find that a unit limited to employees in the Central
* Matter of Pacific Greyhound Lines and Amalgamated Association of Street , Electrao
Railway and Motor Coach Employees of America, 9 N L. R. B 557, 573-574.
'See for example Post-Standard Company and Syracuse ' Mailers Union, Local No. 73,
39 N. L. R. B. 1308. See also Matter of Jones & Laughlin Steel Corporation and National
Organization Masters, Mates & Pilots of America, Local No.,25, Affiliated with the American
Federation of Labor, 37 N. -L. R. B. 366; Matter of International Nickel Co ., Inc. and
square Deal Lodge No. 110, Amalgamated Association of Iron, Steel, and Tin Workers of
North America, Through Steel Workers Organizing Committee, 7 N L R ' B 46; Matter
of Hoffman Beverage Co. and International Brotherhood of Firemen and Oilers, Local
#55,'8 N. L R. B. 1367 ; Matter of Wilson and Co., Inc. and International Brotherhood of
Teamsters , Chauf eurs, Stablemen and Helpers of America ,' Local # 202, affiliated with the
A. F. of L., 25 N. L. R. B. 938. . t
6 See Matter of Pacific Gas & Electric Company and Utility Workers Organizing Com-
mittee, C. I. 0., 3 N. L. R B. 835, 13 N. L. R. B. 268, 40 N. L. R. B. 591, and-41 N.'L. R. B.
1182.
4
822 DECISIONS OF NATLONAL LABOR RELATIONS BOARD
Division is appropriate. Our' finding in this respect, however; does
not preclude a later` determination that a larger unit is appropriate
when ,effective organization has extended to employees in other part's
of the Company's system.?
The Company, contends that if the Board finds the Central Division`
constitutes an" appropriate unit,-the unit should include all produc-
tion, maintenance, and construction employees of the Central Divi-
sion; and that the division manager , the district managers , the local
managers who do not spend substantial time on service work, office
employees, technical engineers, the superintendent of construction, the'
salesmen, the janitors and janitresses, the foreman of the maintenance
crew at Danville, the division crew foreman at Danville, the service,
man manager, at Eminence, they service- man manager at Leitchfield,'
the ice-production superintendent at Glasgow, the service ` man -at
Upton, the superintendent and assistant superintendent at Dix Dam,'
the foreman -of the division line-crew at Shelbyville, and the military
guards at Dig Dam, should'be excluded. The Union agrees with the'
Company's ,contention, but would add to' the exclusions'the following
classifications of employees, whom the Company would include :
Gas production foreman at Danville: The record indicates that this`
employee is in charge of the gas plant at Danville. It is a ,small
plant with only four or five employees, and the gas production .,fore-
man works a shift in the same manner that the other operators at the
plant do. However, his'rate of pay is higher than that of the othe'r'
operators, and he has the authority to recommend hiring or dis=
charging. " -
Ice- and water-plant manager aG Stanford: This employee engages
most of the time in the production of ice and -in the maintenance of
the plant equipment. His duties are virtually the same as those of
the `gas production foreman at Danville, and he has the same author-
ity to recommend hiring and discharging.'
Ice-production engineer'at Lebanon: This employee's work is'par-
allel to the work done by the ice- and water-plant engineer at Stan-
ford: He has general control over the plant and has the authority
to direct the work of the other operators and to recommend hiring and
discharging. -
Chief operator-Ice and electricity-at Franklin: This employee
engages in the production of ice and in the maintenance of 'electrical
equipment. He works on a ,shift along with the other employees, but -
is charged with the general direction of their work and has authority
to recommend hiring and discharging. ,
- 7 Matter of Southern California Gas Company and Utility Workers Organizing Committee,
Local 111, C 1. 0, 31 N. L R. B 461 ; Matter of Oklahoma Gas -& Electric Company and
Internatroonal,Brotherhood of, Electrical Workers of Oklahoma City, Local B-1111, 42 N "L;
R. B. 750 Cf. Matter of Pacific Gas and Electric Company and International Brotherhood
of Electrical Workers , etc, 44 N . L R B. 665. -
KENTUCKY UTILITIES ' COMPANY 823
Gas' and water 'prodic ,ction superintendent
.
at Shelbyville : This -em-
ployee is . engaged - in work with regard to the production of. gas and
the pumping of water. He works on a shift and has a helper. He
is charged with the general direction of work at -that plant and has
the authority to recommend hiring and discharging.
We conclude that all the above employees are supervisory and shall
exclude them from the unit.
Service -man managers at Hodgenville and Wilmore :` These em-
ployees are located in small' communities in' which the Company
maintains a small office for the collection of bills. The Company
employs in each of these offices a bookkeeper who, is charged with
the collection of the money and the keeping of records thereof. The
bookkeeper is under the general supervision of the service-man
manager: The duties of the- employees consist of ' maintaining
service; taking care of all distribution work, together with temporary
assistance ' from time to time, doing customers ' contact ` work, and
reading meters.' '
We conclude that these employees are representatives of manage-,
ment and shall exclude them'from the unit.
Chief operator at Dix Dam,: This employee engages in duties simi-
lar to those of the other employees at the plant-with the exception
that he has an assistant ,' and is classified as' a chief operator because'
he works during the chief power-producing period. His responsi=
bility extends only to the work of his assistant, and he has no general
control over the other 'operators . We conclude that this employee's
duties are, similar to those of employees sought to be included by
the Union 'in the appropriate unit. ' We shall; therefore , include,him'_
in the unit.
We find that all production , maintenance , 'and construction em-
ployees of the Central' Division of the Company, including the chief
operator at Dix , Dam but excluding ' the division , manager, the 'dis-
trict managers , the local managers who do not spend substantial time'
on service work, office employees , technical engineers , the superin-'
tendent of construction , the salesmen , 'the janitors and janitresses;
the foreman of the maintenance crew at Danville, the division `crew'
foreman ' at'Danville , - the serviceman ,'nianaber at Eminence, the
service-man manager at Leitchfield, the ice-production superintendent
at Glasgow, the service man at Upton, the superintendent and assist-
ant superintendent at Dix Dam, the foreman of the division line-crew
at Shelbyville, the military guards at Dix Dam, the gas-production
foreman at Danville, the ice- and water-plant manager at Stanford,
the ice-production engineer at Lebanon, the chief operator-ice and
electricity at Franklin , the gas -- and water -production superintendent
at Shelbyville; and the service-man- managers' at Hodgenville and,
824- DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
WilmOre; 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 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. - -
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 Rela-
tions 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 Kentucky Utili-
ties Company, Lexington, Kentucky, at its' Central Division, 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 Rela-
tions Board, and subject to Article III, Section 10, of said Rules
and Regulations, 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, including any such
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 any, who have since quit
or been discharged for cause, to determine whether or not they desire
to be represented, by the International Brotherhood of Electrical
Workers (A. F. of L.), -for the purposes of collective bargaining.'
i