Nebraska Power Co.

National Labor Relations Board - Board Decisions

Jan 1, 1943

46 N.L.R.B. 601 (N.L.R.B. 1943)

In the Matter of NEBRASKA POWER COMPANY and THE JOINT COUNCIL
OF THE INTERNATIONAL BROTHERHOOD OF ELECTRICAL ' WORKERS
UNION No . B-763 AND THE INTERNATIONAL ASSOCIATION OF
MACHINISTS LOCAL LODGE No. 31 , AFFILIATED WITH THE AMERICAN
FEDERATION OF LABOR
Case No. R-4487.-Decided January 1, 1943
Jurisdiction : electric utility industry.
Investigation and Certification of Representatives : existence of question: re-
fusal to accord recognition until appropriate unit determined; election
necessary.
Unit Appropriate for Collective Bargaining : all employees engaged in the pro-
duction and distribution of electricity, with specified inclusions and exclu-
sions, as laid down in prior determination in representation proceeding
involving sane company and same employees held conclusive in absence of
facts warranting a change.
Kennedy, Holland, Delacy and Svoboda, by Mr. Ralph E. Svoboda
and Mr. L. J. Tierney, of Omaha, Nebr., for the Company.
Mr. Lawrence F. Daly, of Washington, D. C., and Mr. J: Harris
Igou, of Austin, Minn., for the Joint Council.
Mr. Raymond E. McGrath, of Omaha, Nebr., for the Independent.
Mr. A. Sumner Lawrence', of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a third amended petition duly filed by the Joint Council of
the International Brotherhood ,of Electrical Workers Union No.
B-763 and the International Association of Machinists, Lodge No. 31,
affiliated with the American Federation of Labor, herein called the
Joint Council, alleging that a questionaffecting commerce had arisen
concerning the representation of employees of Nebraska Power Com-
pany, Omaha, Nebraska, herein called the Company, the National
Labor Relations" Board provided for an appropriate hearing upon
due notice before Robert S. Fousek, Trial Examiner. Said hearing
was held at Omaha, Nebraska, on October 23, and November 5 and 6,
46 N. L. •R. B., No. 71.
601
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1942. The Company, the Joint Council, and Independent Employees
Association of the Nebraska Power Company, herein called the Inde-
pendent, 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.
Both unions, and the Company filed briefs which the Board has, duly
considered.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE COMPANY
Nebraska Power Company, a Maine corporation, has its principal
office in Omaha, Nebraska, and various branch offices in the States
of Nebraska and Iowa. The Company is engaged in the generation
and distribution of electricity to the general public in the adjoining
States of Iowa and Nebraska and to numerous railroads, post offices,
telephone companies, airplane fields, newspapers, grain elevators and
exchanges, together with steam for the operation of packing houses
and,war production plants in and about Omaha, Nebraska. During
the year 1941, a substantial amount of equipment and supplies
amounting in value to.$290,000 was purchased outside the State of
Nebraska. During the same period, the ^ Company sold at retail
electrical appliances in the total approximate amount of $307,000 and
$73,000 in the States of . Nebraska and Iowa, respectively. Of the
purchases of equipment and supplies consummated with local dealers
within the State of Nebraska, 90 percent of such supplies originated
by production or manufacture outside the State of Nebraska. We
find, contrary to its contention, that the Company is engaged in
commerce within the meaning of the National Labor Relations Act.'
II. TIIE ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Worker's Union No. B-763,
and International' Association of Machinists, Local Lodge No. 31, are
labor organizations affiliated with the American Federation of Labor,
admitting to. membership employees of the Company.
Independent Employees Association of the Nebraska Power Com-
pany is a labor organization affiliated with the United Utilities Union,
admitting to membership employees of the Company.
I See Consolidated ' Edtson Co . v. N. L. R. B., 305 U. S. 197 ; N. L. R. B. v. Vsrginia Elec-
tric & Power Co, 314 U. S. 469.
NEBRASKA POWER COMPANY
III. THE QUESTION CONCERNING REPRESENTATION
'603
On July 28, 1942, at a joint conference attended by representatives
of the, Joint Council, the Independent, and the Company, the officers
of the Joint Council informed the Company of the formation of the
Joint, Councilfor the purposes. of collective bargaining. The Com-
pany took-the position that it could not bargain with anyone until
those eligible to vote in an election of representatives for collective
bargaining had been determined by the Board.
A statement by the Field Examiner, introduced in evidence at the
hearing, shows'that the Joint Council and the Independent each rep-
resents a substantial number of employees in the unit hereinafter
found 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 Act.
IV. THE APPROPRIATE UNIT,
The Joint,Council contends that the appropriate unit 'should consist
of all employees in the production, generation, construction, transmis-
-sion , distribution, transportation, maintenance, repairs, service, and
metering departments, exclusive of office, clerical, and sales employees,
main office building maintenance, meter readers, service representa-
tives, engineering department employees, parking lot attendants,
chemists, laboratory assistants, efficiency men, lunchroom hostesses;
watchmen, guards, temporary common laborers, janitors and -jani=
tresses who work in office buildings other than the main office building,
and supervisory employees having the right to hire and discharge.
The Company and the Independent, on the other hand, are in sub-
stantial agreement 3 in urging a company-wide unit as opposed to the
unit of selected departments requested by the Joint Council.
With respect to,the broad phases of the dispute in connection with
the appropriate unit, it appears that the Joint Council bases its pro-
posed unit upon the alleged community of interest of employees ac-
2 The Field Examiner reported that the Joint Council had submitted a ledger book which
showed the names of 202 dues -paying members of the Joint Council, of which 184 names
appear on the Company 's pay roll of July 7, 1942 , containing the names of 407 employees
within the alleged ' appropilate unit The Field Examiner further reported that the
Independent had submitted an affidavit signed by its secretary -treasurer with an attached
list of 292 names of persons claimed as members of the Independent , of which 292 names,
227 appeared , to be the names of.'persons on the Company 's pay roll of July 7, 1942,
containing the names of 462 employees in the unit which the Independent claimed to be
apropriate.
a The Company. and the Independent differ slightly in their statement of the appropriate
unit. The unit proposed by the Independent comprises all employees except executive and
supervisory employees , rural emergency , and retired employees The Company would in-
clude all employees other than representatives of management . Both the, Company and the
Independent agree In urging the Inclusion of clerical and maintenance employees generally.
604 `DECISIONS OF,NATIONAL LABOR RELATIONS BOARD
tively connected with the production and distribution of electricity as
distinguished from employees only indirectly connected therewith.
The Company and the Independent, however, contend that by reason
of the integration of departments, 'the concentration of labor policies
under i single head,- the benefits 8 and social activities 6 open alike to
all employees, and the practice of the Company in dealing with both
unions on a company-wide basis,' the appropriate unit should be com-
pany-wide and include clerical and other'employees not directly con-
nected with the production and distribution of electricity. The Joint
Council relies upon the decision of the Board in a prior representation
case involving the same Company and rejecting the claim of the Inde-
pendent that office and clerical employees and salesmen should be
included within the appropriate unit. The Company contends that
the prior case is not a final adjudication of the issue and, relies upon
the Board's decision in Matter, of Gulf States Utilities Company 8 as
pointing the way of decision upon the present record.
While it is true that a prior decision of the Board with respect to
an appropriate unit in a given case does not prevent the Board from
reexamining its decision in the light of further facts and subsequent
.developments which would indicate a unit different from that already
determined, the Board will, nevertheless, give due weight to its prior
decision and will not depart therefrom in the absence of evidence that
the prior determination was based upon a mistake in fact, or that
subsequent events have occurred which would make the previous unit
inappropriate. In the present instance, the record contains no evidence
of any change in the organization of the Company or other circum-
stances not then existing which would indicate that office, clerical, and
sales employees should now be included within the appropriate unit.
We find, accordingly, that the office, clerical, and sales employees of
the Company have insufficient interests in common with the production
and maintenance 'employees to justify including them within the unit
4 While all employees have to clear through the personnel office at the Company's head-
quarters , the selection in the matter of-hiring is generally done by the head of the depart-
ment concerned.
8 The benefits offered by the Company include group insurance , health and accident bene-
fits,, educational facilities , medical examinations and care, credit union facilities , pensions,
sick leave , and service pin system.
asocial activities include membership in the Nepoco club with a branch for women em-
ployees , an annual Christmas party given by the Company, numerous sports, and activities
connected with the publication of "Flash," a monthly magazine edited by all employees at
company expense.
' while'the Company has dealt with both unions through representative committees on
questions affecting all employees and not confined to union members only, it has never
recognized either union as exclusive bargaining agent and has never entered into a formal
collective bargaining agreement with either union.
8 See Matter of Gulf States Utilities Company ' and International Brotherhood of D'ectrical
Work °rs A. F. L., 31 N. L It. B. 740. In this case , however, it appeared that the Company
had recognized an organization as representative of its employees for purposes of collective
bargaining and had entered into a written agreement with that organization.
NEBRASKA POWER COMPANY 605'
herein found to be appropriate. We further find that the employees
of the Company in the production, generation, construction, trans-
mission, distribution, transportation, maintenance, repairs, service,
and meter departments, constitute the nucleus of an,appropriate unit
based upon a community of interest in the production and distribution
of electric energy and the maintenance of the equipment and means
required for the accomplishment thereof.
There remains for consideration the question of specific exclusions
from the appropriate unit. The Joint Council would exclude in addi-
tion to office, clerical, and sales employees and the usual supervisory
employees, various groups comprising service representatives, meter
readers, engineering department employees, parking lot attendants,
chemists, laboratory assistants, efficiency men, main office building
maintenance employees, lunchroom hostesses, watchmen, and janitors
who work in office buildings other than the main office building, which
groups will be considered in the order named.
(a) Service representatives
These employees,were sales representatives before the war curtailed
the production of consumer goods. They are now engaged in stimulat-'
ing the sale of electricity by.a house-to-house canvassing' program in
which they give advice and make minor repairs on equipment. They
are not `essential production or distribution employees. We find that
they have'few interests in common with the employees directly engaged
in the production and distribution of electric energy. We shall, ac-
cordingly, exclude them from, the appropriate unit.
(b) Meter readers
These employees were originally-included by the Joint Council in
the statement of its position to the Trial Examiner. Later in the
hearing, it developed that the duties of meter readers did not provide
an opportunity for advancement to the meter department. As a result
thereof, the only witness for the Joint Council stated on cross-examina-
tion that he did not think meter readers should be included within the
appropriate unit. ' At the hearing, no formal motion was made to ex-
clude meter readers from the proposed unit as first outlined, though
their exclusion is now requested in the brief filed by the Joint Council
since the completion of the hearing. As to the merits of the proposed
exclusion, it appears that meter readers have been included with pro-
duction and distribution employees in many collective bargaining
contracts in the industry. The witness for the Joint Council further,
stated that meter readers come within the jurisdiction of the Interna-
tional Brotherhood of Electrical Workers for the reason that meter
readers are closely related to other electrical workers. Although 80
percent of the Company's meter readers devote full time to reading
meters, whereas in utilities in rural areas or in' the small towns the
606" DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lineman is the meter reader, it is clear that-they are not clerical em-
ployees. We find that,, in view of-the relation between meter readers'
and electrical workers and the general practice of including meter
readers with electrical workers for purposes of collective bargaining,
meter readers should be included within the appropriate unit.
(c) Engineering department employees
These employees are skilled workers. They draw graphs, make
blueprints, plan construction programs, survey and prepare direc-
tions, for construction works. They are essentially professional
employees, and for that reason we shall exclude them from the appro-
priate unit.
(d) Parking lot attendants
These employees check on the cars•of the Company as they are taken
to and removed from the parking lot of the Company. The Joint
Council has asked to include a chauffeur. Their work is an essential
part of the transportation department which is otherwise included.
We shall include them within the appropriate unit.
(e) Chemists, laboratory assistants, and efficiency men
These employees are self-trained practical chemists and technicians.
Their work is not similar to that of other production and distribution
employees. They are engaged in the technical work of testing mate-
rial to maintain high efficiency. We find that they have few interests
in common with the production workers and shall exclude them from
the appropriate unit.
(f) Main office building maintenance employees
These employees maintain a separate office building which houses
the majority of office, clerical, and executive employees. Part_ of the
office space is rented to other concerns. These employees are not
immediately connected with the production and distribution of 'elec=
tricity. They will be excluded from the appropriate unit.
(g) Lunchroom hostesses (cafeteria employees)
The two hostesses are in the power and transportation department.
Their work is not intimately connected with the generation, distribu-
tion, and transmission of electricity. The Joint Council states that
they are not eligible to membership. We find that they have few
interests in common with the electrical workers and shall exclude
them from the appropriate unit.
(h) Watchmen
These men perform the usual duties of watchmen and in many cases
have maintenance duties as well.9 It appears that watchmen have
been included in contracts of the International Brotherhood of Elec-
I In addition to the -watchmen whom it actually employs, the Company has a special
protection force of guards whom it does not employ and who ate supplied by an.agency
under contract with the Company.
NEBRASKA POWER COMPANY 607
trical Workers. We find that th&watehmen have interests in common
with-those of production and distribution employees and shall include
them within the appropriate unit.
(i) Janitors and janitresses who work in office buildings other than
the main office building
The Joint Council has attempted to draw a distinction between
certain janitors and janitresses who are not in the main office building
but are; in other smaller offices or power or distribution stations.
The Joint ,Council would include those in power or distribution sta-
tions but exclude those in the smaller offices. We find no merit in
the distinction. All do the same type of work. No separate unit
would be feasible for these employees. We shall include all such
janitors and janitresses who are outside the main office building, in
the appropriate unit.
We find that all employees of the Company in the production,
generation, construction, transmission, transportation '(including
#"a king'lot' attendants) maintenance (including all jani'tors`and'jani-
.tresses,,6utsidethe'nrnain office building)repairs, service'and'mete'ring
departments (including meter readers), and watchmen, but excluding
office, clerical, and sales employees, main office-building maintenance
employees, temporary common laborers, lunchroom hostesses, and
supervisory employees having the right to hire and discharge, consti-
tute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act.
V. TIIE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by, 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 our Direction of
Election herein, subject to the limitations and addition's set forth in
the Direction."
The Joint Council requested that it be designated on the ballot as
"International Brotherhood of Electrical Workers Union, affiliated
with the American Federation of Labor." The Independent requested
that its name appear on the ballot as the "Independent Employees
Association of the Nebraska Power Company, affiliated with the
United Utilities Union." The requests are hereby granted.
io The Company contends that no election should be directed at the present time because
of the absence of a number of its employees who are serving in the armed forces of the
United States ' The contention is without meat and is hereby rejected
608 DECISIONS OF NATIONAL LABOR' .RELATIOINTS BOARD
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 Rela-
tions 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 Nebraska Power
Company, Omaha, Nebraska, 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 Seventeenth 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 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 such 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 employees who have since quit or been discharged for cause,
to determine whether they desire to be represented by International
Brotherhood of Electrical Workers, Union, affiliated with the Ameri-
can Federation of Labor, or by Independent Employees Association-
of- the Nebraska Power Company, affiliated with the United Utilities
Union, for the purposes of collective bargaining, or by neither.