New York Water Service Corp.

National Labor Relations Board - Board Decisions

Sep 23, 1952

100 N.L.R.B. 1246 (N.L.R.B. 1952)

1246 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is established Board doctrine that participation for a substantial
,period of time in joint bargaining negotiations and the uniform adop-
tion of the agreements resulting from such negotiations indicate a
desire on the part of the participants to be bound by joint, rather
than individual, action and warrants the establishment of a multi-
employer unit 4 However, the Board has held that the mere adoption
by an employer of contracts negotiated by a multiemployer group is
insufficient to require the inclusion of his employees in the multi-
employer unit .5
We are of the opinion that the prerequisites for a multiemployer
unit, encompassing all the Employers named in the petition, have not
been met. Although the record is not fully detailed, it is clear that, at
most, eight Employers 6 have so participated in joint negotiations over
a sufficiently substantial period of time to warrant finding appropriate
a multiemployer unit among the employees of such Employers. Ac-
cordingly there is no basis for finding appropriate the broader multi-
employer unit sought by the Petitioner in this proceeding. Moreover,
we are not prepared to proceed to find a smaller multiemployer unit
appropriate because it does not appear that any eight Employers have
annual out-of-State purchases, either direct or indirect, or any combi-
nation thereof, which meet the minimum jurisdictional standards
announced by the Board in recent decisions.'
We find, therefore, that it would not effectuate the policies of the
Act to assert jurisdiction herein and shall order that the petition be
dismissed.
Order
IT IS HEREBY ORDERED that the petition filed herein be, and it hereby
is, dismissed.
4 Associated Shoe Industries of Southeastern Massachusetts Inc., et at., 81 NLRB 224;
Cleveland Builders Supply Co., 90 NLRB 923.
Coca-Cola Bottling Works, 93 NLRB 1414.
From any group of eight Employers , Sherwin Bakery and Arlington Bakery must be
excluded as it appears that they never have taken part in any negotiations.
_T See Federal Dairy Company , Inc., 91 NLRB 638; Dorn's House of Miracles, Inc, 91
NLRB 632, The Rutledge Paper Products , Inc , 91 NLRB 625.
NEW YORK WATER SERVICE CORPORATION AND WESTERN NEW YORK
WATER COMPANY and UTILITY WORKERS UNION OF AMERICA, CIO,
PETITIONER. Case No. 2-RC-4532. September 23, 1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Louis I. Siegel, hearing
100 NLRB No. 195.
NEW YORK WATER SERVICE CORPORATION 1247
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman Herzog and Members Houston and Murdock].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section 9
(c)'(1) and Section 2 (6) and (7) of the Act.
4. The parties agree, and we find, that a unit of office and clerical
employees at the Employer's main office located at 132 West 43rd
Street, New York, New York, excluding professional employees, con-
fidential employees, guards, watchmen, and supervisors as defined in
the Act, is appropriate. However, the parties disagree on whether
the following employees, otherwise within the unit, are temporary,
confidential, or professional employees, or supervisors :
Alleged Temporary Employees
The Employer contends that engineering stenographer M. Reilly,
mail clerk P. Asary, and pool typist Knoll are temporary employees
because they will be terminated shortly. We do not agree. Reilly was
hired for the duration of the 1952 construction program, but the record
does not show when this program will be completed. Asary and
Knoll were hired on a permanent basis. Although they will be
terminated at some time in the future, when the Employer has com-
pleted its transfer of certain administrative responsibilities pertain-
ing to water properties sold by the Employer to a public authority in
May 1951, the time when this transfer will be completed is not indi-
cated in the record. Thus, the dates when these three employees will
be terminated are indefinite. The mere fact that they will be ter-
minated at some unpredictable future time does not necessarily make
them temporary employees or preclude them from voting.' Accord-
ingly, we find that Reilly, Asary, and Knoll are not temporary em-
ployees and are eligible to vote in the election hereinafter directed.
Confidential Employees
Elizabeth K. Knapp is the private secretary to the chief valuation
engineer, who draws up schedules for submission to the New York
' Snively Groves, Inc., 98 NLRB 1146; The Gas Service Co., 98 NLRB No. 78; Holhngs-
worth & Whitney Co., 97 NLRB 599.
1248 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Public Service Commission on rate determination questions. These
schedules, which frequently contain wage and other information con-
sidered confidential by the Employer, are prepared by Knapp several
weeks before their submission to the Commission. However, once
submitted, the schedules are open to public inspection.
Mary Yoccodine works for the assistant treasurer and is classified
as a paymaster. She prepares the payrolls and vouchers, and controls
the personnel files. The Employer considers these files confidential.
E. Cooper is a secretary on the Employer's legal staff,2 which occa-
sionally prepares legal memoranda of an advisory nature pertaining to
the Employer's labor relations. The lawyers do not participate in
bargaining negotiations.
As Knapp, Yoccodine, or Cooper do not assist persons who formulate
or effectuate the Employer's general labor relations policy, we find that
they are not confidential employees within our definition of that term.3
Grace N. Braisted has been the private secretary to the vice presi-
dent in charge of engineering for the past 25 years. This officer helps
formulate general labor policies. Braisted occupies the same office
with her superior and performs the usual secretarial duties for him.
Accordingly, we find that Braisted is a confidential employee 4
Professional Employees
Engineering Valuation Accountants W. Burt and Mendoza are re-
sponsible for the proper allocation of project costs in accordance with
the permanent system of accounts established in 1938 by the New York
Public Service Commission. The Commission requires that property
costs, essential for rate determinations, be reported in terms of prop-
erty units. Such property units had already been established by the
Employer before the two engineering valuation accountants were em-
ployed. When the Employer adds or retires property from service,
these accountants compare the field reports with plans and specifica-
tions, and allocate the costs to the proper units of property. Except
for labor costs, all other material costs are specifically indicated on the
records. In addition, these accountants check the accounts for errors
and transcribe information from primary record sources into perma-
nent records.' They do not take trial balances, nor do they make up
profit and loss statements or balance sheets. These two accountants
have no college degrees; the Employer accepted their prior experience
As of the date of the hearing D. Keene, formerly the other legal secretary, was no
longer employed.
8 Ford Motor Company, 66 NLRB 1317 ; Hughes Tool Company, 97 NLRB 1107; B. F.
Goodrich Company, 92, NLRB,757 ; Phillips Oil Company, 91 NLRB 534; Inter Mountain
Telephone Company, 79 NLRB 715.
4 Inter Mountain Telephone Company, supra.
NEW YORK WATER SERVICE CORPORATION 1249
in keeping cost records in lieu of educational background 5• As indi-
cated above, the accountants appear to exercise judgment or discretion
primarily with respect to the allocation of labor costs which, unlike
material costs, are not specifically indicated. Further, such allocation
must be made in accord with the system of accounts established by the
Public Service Commission as well as with its accounting rules and
regulations. It thus appears that the knowledge required of these
accountants may be acquired by a thorough and detailed knowledge
of the Employer's accounting system rather than "knowledge of an
advanced type in a field of science or learning customarily acquired by
a prolonged course of specialized intellectual instruction and study in
an institution of higher learning." As the work of these accountants
does not involve consistent exercise of discretion and judgment, and
does not require knowledge of an advanced type customarily acquired
by a prolonged course of specialized intellectual instruction in an insti-
tution of higher learning, we find that they are not professional em-
ployees within the meaning of the Act.'
Accountant Long works under the immediate supervision of the
construction cost accountant. He performs the routine work of post-
ing and taking trial balances from the construction ledger and makes
reports on construction work in progress. Although he has a Bachelor
of Arts degree, he performs only routine mental work. Accordingly,
we find that he is not a professional employee.?
Engineer J. Ciacco has a civil engineering degree, and does work of
a responsible engineering nature. He designs water works and draws
plans for the construction of pumping stations and pipelines. He
supervises the contractors in the proper construction of such work,
and, after completion thereof, processes the claims for payment. As
it appears that Ciacco's work is mainly intellectual and varied in char-
acter, involving constant exercise of discretion and judgment and re-
quiring the type of knowledge customarily required in scientific courses
in institutions of higher learning, we find that he is a professional em-
ployee within the meaning of the Act.8 As the parties stipulated that
the duties and responsibilities of Engineer Tailleur were similar to
those of Ciacco, we find that L. C. Tailleur is also a professional em-
ployee.
Supervisors
Kreischer is a construction cost accountant, who allocates costs on
current projects. P. J. Smith or Smythe is a general accountant in
6 Accountant Burt has 21 years of experience and 6 years of college education, and is
paid $308 00 monthly Mendoza has 35 years of experience and no college education, and
is paid $358 00 monthly.
6 Union Electric Power Company , 83 NLRB 872: Inter Mountain Telephone Company;
supra , of Potomac Electric Power Company, 99 NLRB 219.
I See cases cited in footnote 6, supra.
8 Worden -Allen Company, 100 NLRB 420: see also cases cited in footnote 6, supra.
1250 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
charge of the Employer's bookkeeping. P. G. Komarnicki heads the
cash department, and audits disbursements. M. L. Pye is in charge
of all the Employer's files and the routing of mail. The record shows
that Kreischer,. Smith, Komarnicki, and Pye responsibly direct the
work of one or more employees in the performance of their duties.
In addition, all have authority to recommend the discharge of em-
ployees, and all but Pye have effectively done so. Accordingly, we find
that Kreischer, Smith, Komarnicki, and Pye are supervisors within
the meaning of the Act.
Margaret Eichorn is one of two statistical typists and stenographers
working for the comptroller. She receives a monthly salary of $226,.
while the other typist receives $210. She does not direct the work
of any other typists although, when ordered by the comptroller, she
will divide the work with the other statistical typist and the pool
typist, whose monthly average salary exceeds that of Eichorn. As
Eichorn does not responsibly direct these employees, and does not.
have any other supervisory authority, we find that she is not a super-
visor.
Accordingly, we find that the following employees of the Employer,
constitute a unit appropriate for the purposes of collective bargaining
within the meaning of Section 9 (b) of the Act: All office and clerical
employees at the Employer' s main office located at 132 West 43rd
Street, New York, New York, excluding professional employees, con-
fidential employees, guards, watchmen, and supervisors as defined in
the Act.
[Text of Direction of Election omitted from publication in this;
volume.]
SHIPOWNERS' ASSOCIATION OF THE PACIFIC COAST AND ITS MEMBER
COMPANIES and MARINE COOKS & STEWARDS, AFL, AFFILIATED WITH
THE SEAFARERS INTERNATIONAL UNION OF NORTH AMERICA,1 PETI-
TIONER. Case No. 20-RC-1416. September 03, 1952
Decision and Direction of Election
Upon a petition duly filed under Section 9 (c) of the National Labor
Relations Act, a hearing was held before Robert V. Magor, hearing
I The petition herein was filed by the Sailors Union of the Pacific, Seafarers International
Union of North America , AFL, hereinafter referred to as the SUP. After the hearing, the
SUP moved to substitute as petitioner the Marine Cooks and Stewards , AFL, affiliated with
the Seafarers International Union of North America , hereinafter referred to as the
MCS-AFL, on the ground that the MCS-AFL has succeeded the SUP with respect to its.
jurisdiction over the employees involved . The Board notes that a similar motion was:.
made by the SUP during the hearing in Paoifo Maritime dasooiation and its . Member
Companies, et al., 100 NLRB 1254, a closely related proceeding . In the instant proceeding
100' NLRB No. 200.