Utah Power & Light Company

National Labor Relations Board - Board Decisions

Sep 30, 1981

258 N.L.R.B. 1059 (N.L.R.B. 1981)

UTAH POWER & LIGHT COMPANY
Utah Power & Light Company and Kent C. Jaffa
and Rafe G. Black, Petitioners, and Union
Local No. 57 of the International Brotherhood
of Electrical Workers. Case 27-RD-535
September 30, 1981
DECISION AND DIRECTION OF
ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
Upon a petition duly filed under Section 9(c) of
the National Labor Relations Act, as amended, a
hearing was held on April 10, 1981, before Hearing
Officer Wayne L. Benson of the National Labor
Relations Board. Following the hearing and pursu-
ant to Section 102.67 of the National Labor Rela-
tions Board Rules and Regulations, Series 8, as
amended, the Regional Director for Region 27
transferred this case to the National Labor Rela-
tions Board for decision. Thereafter, the Petitioners
filed a brief and a supplemental brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that they are
free from prejudicial error. They are hereby af-
firmed.
The Board has considered the entire record
herein and makes the following findings:
1. The Employer is a public utility engaged in
generating, transmitting, and distributing electrical
power and energy to the States of Utah, Idaho, and
Wyoming. The Employer also provides steam heat
in Salt Lake City, Utah. The Employer has annual
gross volume of business in excess of $250,000. The
parties stipulate, and we find, that the Employer is
engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act. Accordingly, we find
that it will effectuate the policies of the Act to
assert jurisdiction herein.
2. The parties stipulate, and we find, that Union
Local No. 57 of the International Brotherhood of
Electrical Workers is, and at all times has been, a
labor organization within the meaning of Section
2(5) of the Act.
3. The Petitioners seek a decertification election
among the Employer's engineers.' The engineers
are currently part of a production and maintenance
unit represented by the Union. The current unit
' The petition requests a unit consisting of "Graduate engineers from
accredited colleges of Engineering recognized by the National Society of
Professional Engineers." At present. approximately 100 employees of the
Employer conform to this description.
258 NLRB No. 138
contains approximately 2,600 employees of the Em-
ployer, including, inter alia, mechanics, technicians,
electricians, custodians, warehousemen, and clerks.2
The Petitioners contend that we should order an
election because the engineers are professional em-
ployees within the meaning of Section 2(12) of the
Act, and are therefore entitled under Section
9(b)(1) to vote as to whether they desire to be in-
cluded in the unit. The Union urges that the peti-
tion be dismissed. The Union asserts that the engi-
neers are not professional employees, and, more-
over, that the unit for decertification sought by the
Petitioners is inappropriate because it is not coex-
tensive with the existing unit. The Employer has
taken no position except to agree with the Petition-
ers that the petitioned-for unit consists entirely of
professional employees. There are no professionals
in the current unit who are not in the unit sought
by the Petitioners.
Since 1938, the Employer has recognized the
Union as the bargaining representative for all of its
employees, excluding management and supervisors.
The bargaining unit was determined that year pur-
suant to a stipulation by the Employer and the
Union.3 The engineers have never had an opportu-
nity to vote separately as to whether or not they
desire to be included in the unit.
Sec. 2(12)(a) defines "professional employee" to
mean:
(a) any employee engaged in work (i) pre-
dominantly intellectual and varied in character
as opposed to routine mental, manual, me-
chanical, or physical work; (ii) involving the
consistent exercise of discretion and judgment
in its performance; (iii) of such a character that
the output produced or the result accom-
plished cannot be standardized in relation to a
given period of time; (iv) requiring 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
or a hospital, as distinguished from a general
academic education or from training in the
performance of routine mental, manual, or
physical processes.
The engineers employed by the Employer in-
clude specialists in electrical, civil, mechanical,
aeronautical, and nuclear engineering. The current
collective-bargaining agreement classifies the engi-
2 The current unit, as stipulated by the Employer and the Union in
1938. consists of "all employees of the Company. excluding management
and those supervisory officials who have authority to hire and fire"
a The unit was thus determined prior to enactment of Sec 9(b)() of
the Labor Management Relations Act of 1947
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neers into three grades-junior engineers, associate
engineer, and senior engineer. A newly hired engi-
neer enters the company as a junior engineer, and
will generally be promoted to the higher grades
within the next few years.
The record indicates that the engineers are as-
signed to produce highly complex and technical
projects. For example, electrical engineer Gordon
Bowan testified that he is responsible for "defining
protective relay schemes" to prevent serious
damage to company equipment in case of short-cir-
cuits or faults in the company's electrical systems.
He is responsible for designing these systems, de-
termining what equipment is necessary, and ensur-
ing that the systems are constructed properly. Civil
engineer Gary Bowls is responsible for designing
steel lattice transmission towers. He also submits
these designs to construction firms and evaluates
competing bids based on quality and cost-effective-
ness. In order to perform these functions, he em-
ploys his knowledge of advanced mathematics and
computer technology.4
Several engineers testified without contradiction
that they work with a minimum of supervision. Su-
pervisors assign projects to the engineers, and meet
with them periodically in order to review their
progress.5 However, the engineers often have more
training and greater experience in specialized areas
than their supervisors and may be better equipped
to solve specific problems. Associate engineers and
senior engineers are responsible for all aspects of
their projects. They are expected to set the work
schedules, order equipment, prepare cost analyses,
and oversee construction.
With respect to educational qualifications, the
record reveals that virtually all of the engineers
have a B.S. degree from an accredited 4-year engi-
neering program.6 Many have also received M.S.
degrees in specialized fields of engineering. Addi-
tionally, in order to keep abreast of the rapidly
changing developments in their fields, engineers
attend college courses and professional seminars
and conferences, and subscribe to professional jour-
nals.
The foregoing and the entire record demonstrate
that the engineers in the petitioned-for unit are en-
gaged in challenging intellectual work which re-
' Several other engineers testified that their responsibilities also require
extensive technical knowledge. The projects assigned to engineers vary in
accordance with their specific areas of expertise.
The engineers meet with their supervisors between once a week and
once a month.
6 Manager of Employee Relations Haycock testified that the Employer
does not officially require a B.S. degree, but would consider hiring an
applicant that had the "equivalent" He stated that it is "not impossible"
to obtain the equivalent of a degree, hut it would require a combination
of a substantial amount of formal education and work experience. At
present, one engineer employed by the Employer does not have a B S.
degree.
quires advanced knowledge of engineering, and
consistent use of informed discretion. Accordingly,
we find that they are professionals within the
meaning of Section 2(12) of the Act. See, e.g., New
England Telephone and Telegraph Company, 179
NLRB 527 (1969); cf. The Chesapeake & Potomac
Telephone Company of Maryland, 192 NLRB 483
(1971).
The language and legislative history of Section
9(b)(1) of the Act clearly indicate that professional
employees are entitled to vote as to whether or not
they wish to be included in a mixed unit with non-
professional employees. This section provides:
That the Board shall not . . . decide that any
unit is appropriate . . . if such unit includes
both professional employees and employees
who are not professional employees unless a
majority of such professional employees vote
for inclusion in such unit; . . .
In enacting this proviso, Congress clearly recog-
nized that professional employees often have a sep-
arate community of interest from other employees.
The Senate Report, with reference to professional
employees, states that:
Since their number is always small in compari-
son with production or clerical employees,
collective agreements seldom reflect their de-
sires. Under the committee bill, the Board is
required to afford such groups an opportunity
to vote in a separate unit to ascertain whether
or not they wish to have a bargaining repre-
sentative of their own.'7
Senator Taft explained Section 9(b)(1) to his col-
leagues on the Senate floor as follows:
It would mean that the Board could not in-
clude professional employees with non-profes-
sional employees if the majority of the profes-
sional employees in a plant did not desire to be
in the general union.8
The Supreme Court has found Section 9(b)(l) to
be "clear and mandatory." 9 In Leedom v. Kyne,
supra, the Court indicated that the self-determina-
tion election was a "right" given by Congress to
professional employees and that Congress intended
that right to be enforced. In compliance with Sec-
tion 9(b)(1), when faced with a petition for a unit
' S. Rept. 105, 80th Cong. st sess., p.1 I Leg. Hist. LMRA 417
(1947).
' Remarks of Senator Taft. 93 Cong. Rec. 3952. 1 Leg. Hist. LMRA
1009 (1947).
' Leedomn v. Kyne, 358 U.S. 184, 188 (1958). The Court therein held
that a Federal district court had jurisdiction of an original suit to vacate a
Board determination that a mixed unit was appropriate, where the Board
did not first conduct a self-determination election among the professional
employees to authorize their inclusion in such a unit.
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UTAH POWER & LIGHT COMPANY
of both professional and nonprofessional employ-
ees, the Board will order a self-determination elec-
tion among the professionals to determine whether
or not they wish to be represented in a unit which
includes nonprofessionals. See, e.g., Chrysler Corpo-
ration (Airtemp Division), 192 NLRB 1208 (1971);
Sonotone Corporation, 90 NLRB 1236 (1950).
The Petitioners, however, do not request that we
certify a new unit, but that we decertify part of an
existing unit. The Board will not normally direct a
decertification election in a unit not coextensive
with the existing unit. ° In accordance with this
principle, in Westinghouse Electric Corp., 115
NLRB 530 (1956), the Board refused to direct a
decertification election in a unit of professional en-
gineers who were part of a larger mixed unit. In
that case, the Board stated that:
although the desirability of according special-
ized representation to specialized groups of
employees is sufficient to warrant disrupting
an existing relationship when separate repre-
sentation is sought, such considerations are not
operative in a decertification proceeding
which does not result in separate representation
for purposes of collective bargaining.
The Board concluded therein that neither statutory
mandate nor policy considerations warranted or-
dering a decertification election. 12
Westinghouse Electric, supra, however, does not
control our determination herein. In that case, the
professional engineers that sought decertification
had been included in the mixed unit pursuant to
their vote in an earlier self-determination election.
The instant case is clearly distinguishable in that
the professional engineers here were never afforded
an opportunity to vote whether to be included in
the unit, as required by 9(b)(1).' 3
We reaffirm the policies set forth in Campbell
Soup and Westinghouse Electric, supra, and will con-
' See Campbell Soup Company. I NLRB 234 (1955). See also Bell &
Howell Airline Service Company, 185 NLRB 67 (1970); Great FIalk Em-
ployers Council. Inc., 114 NLRB 370 (1955)
However, the Board has not followed this rule when to do so would
perpetuate the existence of a mixed unit of guards and nonguards. See
Sec. 9(b)(3) of the Act, Fisher-New Center Co., 170 NLRB 909 (1968).
See also Newhouse Broadcasting Corporation d/b/a W.4PI-TV-.4M-FM, 198
NLRB 342 (1972).
" Westinghouse Electric Co.. supra, 533.
'2 By refusing to conduct an election. the Board did not indicate that
the mixed unit was appropriate, but only that the existing bargaining rela-
tionship should not be disrupted
See also Retail Clerks Union Local Local No. 324 (Vincent Drugs No. 3.
Inc.), 144 NLRB 1247 (1963).
i3 We note that in contrast to Westinghouse Electric. upra. in a prior
decision, Illinois Bell lephone Company., 77 NLRB 1073 (1948). we or-
dered a decertification election pursuant to a petition filed on behalf of
professional employees who were part of a larger existing unit. In Illinois
Bell, as in the instant case, professional employees were included in a
mixed unit as a result of an agreement between the parties. without a self-
determination election. Westinghouse Electric did not oerrule Illinois Bell.
but reached a different result based on policy considerations
tinue to require that the unit for decertification be
coextensive with the existing unit. However, since
in this unique situation the professional employees
seeking decertification have never had an opportu-
nity to vote in a self-determination election, the
policies inherent in Section 9(b)(l) require that we
make an exception herein. Accordingly, we con-
clude that the unit petitioned for is not inappropri-
ate and that an election should be directed as re-
quested by the Petitioners.4
We find that a question exists concerning the
representation of employees of the Employer
within the meaning of Sections 9(c)(1) and 2(6) and
(7) of the Act.
4. In accordance with the above findings and the
record as a whole, we find that the following unit
may constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Sec-
tion 9(b) of the Act:
All employees of the Company; excluding
management and those supervisory officials
who have authority to hire and fire.
The unit set out above includes professional and
nonprofessional employees. However, as discussed
previously herein, it is necessary to ascertain the
desires of the professional employees as to inclu-
sion in a unit with nonprofessional employees.
We shall therefore direct an election in the fol-
lowing voting group:
All professional engineers employed by the
Employer; excluding managerial employees
and supervisors, as defined in the Act.
4 In ltlernational Telephone & Telegraph Corporation (11'7 Federatio
Laboratories). 159 NLRB 1757 (1966) (Members Fanning and Jenkins dis-
senting in pertinent part), enfd. as modified 382 F.2d 366 (3d Cir. 1967). a
Board majority held that an employer violated Sec 8(a)(5) of the Act by
withdrawing recognition from the union on the ground that the proffes-
sional employees had been included in a mixed unit without a self-deter-
mination election The majority held that the respondenlt was .estIopped
from contesting the appropriateness of a unit that it had accepted for 14
years. but that its holding was "not to he construed as freclosi g tIh
professionals in the unit from seeking self-determination at an appropriate
time and in the appropriate proceeding." International Teltephone & Tile-
graph Corporation (17T Federal Laboratories). supra at 1764. fn. 15 This
proceeding was initiated at an appropriate time by professional emploees
under a provision intended for their protection. nt bh an employer who
seized upon this issue as an asserted basis for w.ithdrasing recognition in
the midst of a strike by its employees. Our opinion herein is also con,risl-
ent with the dissenting iew in that case. hich would hale found that
the bargaining relationship as based on cernlficationll hich as oid
ab inirio since the professionals were not afforded a self-determinatllion
election
'" As noted herein. the petition requests a unit consistting f "CJridute
Engineers from accredited College, of Engineering recognied hb he
National Societly of Professional Engineers. The rectrd indiclca that
the Employer currentl. employ,s ne non degree-holdling engineer hl'
engineer. and others so ho may be hired in the futurc, hae the saite joh
responsibiliies a the degree-holding eginieers Accordingl. re findl
that non-degree-holding engineers are prorfessionals o i ihin 1the m llinllg of
Sec 2(12)(a) of the Actl and hase included heni ill the profe-soll;il suit
10(1
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The employees in the above voting group will
be asked the following question:
Do you desire to be represented for the pur-
pose of collective bargaining by Union Local
No. 57 of the International Brotherhood of
Electrical Workers in a unit composed of all
professional and nonprofessional employees of
the Employer?
If a majority of the employees in the voting
group vote "yes," the professional engineers will
continue to be represented for the purpose of col-
lective bargaining by the Union, as part of the cur-
rent mixed unit. If a majority vote "no," the pro-
fessional employees will be severed from the exist-
ing unit. 16 No labor organization seeks to represent
these employees in a separate, all-professional unit.
Therefore, if a majority vote "no" the engineers
will be unrepresented.
In accordance with the above, we now make the
following findings in regard to the appropriate unit:
l" The Union Aill continue to be cerified as the collective-bargaining
representative of the Emplo)er's nonprofessional employees.
If a majority of the professional employees vote
for inclusion in the unit with nonprofessional em-
ployees, the following will constitute the unit ap-
propriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act:
All employees of the Company; excluding
management and those supervisory officials
who have authority to hire and fire.
If a majority of professional employees do not
vote for inclusion in the unit with nonprofessional
employees, the following two groups of employees
will constitute separate units appropriate for the
purposes of collective bargaining within the mean-
ing of Section 9(b) of the Act:
Unit (a)
All employees of the Company; excluding pro-
fessional employees, management and those su-
pervisory officials who have authority to hire
and fire.
Unit (b)
All professional engineers employed by the
Employer; excluding managerial employees
and supervisors as defined in the Act.
1062