Nebraska Power Co.Download PDFNational Labor Relations Board - Board DecisionsJan 1, 194346 N.L.R.B. 601 (N.L.R.B. 1943) Copy Citation 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. Copy with citationCopy as parenthetical citation