West Texas Utilities Co.

National Labor Relations Board - Board Decisions

Jul 18, 1952

100 N.L.R.B. 267 (N.L.R.B. 1952)

WEST TEXAS UTILITIES COMPANY 267
WEST TEXAS UTILITIES COMPANY and INTERNATIONAL BROTHERHOOD
OF ELECTRICAL WORKERS, LooALs Nos. 898, 920, AND 1044, AFL,
PETITIONER. Case No. 16-RC-812. July 18,195,?
Second Supplemental Decision and Direction
Pursuant to a Decision and Direction of Election issued by the
National Labor Relations Board," an election by secret ballot was con-
ducted in the above-entitled proceeding on December 19 and 20, 1951,
under the direction and supervision of the Regional Director,for the
Sixteenth Region. Thereafter a tally of ballots was furnished the
parties, which showed that of the 152 votes cast, 59 valid ballots were
cast for the Petitioner, 47 valid ballots were cast against the Petitioner,
45 ballots were challenged, and 1 void ballot was cast.
On December 28, 1951, the Employer filed objections to conduct
affecting the result of the election, and to the conduct of the election.
On January 8, 1952, the Regional Director issued his report on ob-
jections to the election and challenged ballots, and on January 25,
1952, the Employer filed exceptions thereto.
Thereafter, on February 15, 1952, upon consideration of the Re-
gional Director's Report and the exceptions thereto, the Board issued
a Supplemental Decision, Direction, and Order,2 (1) sustaining the
challenges to 12 of the 45 challenged ballots,3 in accordance with the
Regional Director's recommendations, and in the absence of any ex-
ceptions thereto by either party; (2) in accordance with the Regional
Director's recommendations, and absent any exceptions thereto, over-
ruling the challenges to 3 of the remaining challenged ballots,4 and
directing that these ballots be opened and counted; (3) remanding
the proceeding to the Regional Director, directing that a hearing be
held on the issues raised by the Employer's exceptions with respect to
the remaining 30 challenged ballots,5 and directing that the hearing
officer prepare and serve upon the parties a report containing resolu-
tions of the credibility of witnesses, findings of fact, and recommenda-
tions as to the disposition of said challenged ballots; and (4) reserving
any ruling on the Employer's objections to the election, pending final
action on the challenged ballots.,'
197 NLRB 184.
s 98 NLRB 157.
See schedule A attached to the Supplemental Decision of February 15, 1952.
See schedule B attached to the Supplemental Decision of February 15, 1952.
See schedule C attached to the Supplemental Decision of February 15, 1952.
6 Ruling on these objections is further reserved pending the opening and counting of the
challenged ballots which are hereinafter directed to be opened and counted.
100 NLRB No. 46.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A hearing was held between March 17 and 26, 1952, before Richard
C. Keenan, hearing officer. On June 4,1952, the hearing officer issued
and duly served upon the, parties his report with respect to the 30
challenged ballots, recommending that the challenges be sustained as
to the ballots of the 17 employees listed in schedule I attached hereto,
and that as to the ballots of the 13 employees listed in schedule II
attached hereto, the challenges be overruled.
The Petitioner filed exceptions to the hearing officer's recommenda-
tions with respect to 5 of the challenges, and the Employer filed excep-
tion to his recommendations as to 14 of the remaining challenged
ballots. The Employer also filed a motion to reopen the hearing for
the purpose of submitting further evidence or affidavits.
We' hereby deny the Employer's motion to reopen inasmuch as it
appears that the further evidence or affidavits which the Employer
proposes to adduce would be merely cumulative and repetitious.
'1'lle Employer's Exceptions
The Employer's original exceptions to the Regional Director's
recommendations on the challenged ballots had raised the issue of
the eligibility to vote of those employees of the Employer who spend
part of their working time in operating or maintaining the Employ-
er's Diesel engines. The Employer had contended in those exceptions
that such employees were, generally speaking, eligible to vote. In its
Supplemental Decision of February 15, 1952, the Board had stated
that "only such of those employees as regularly devote a substantial
part of their time to the maintenance or operations of Diesel engines"
would be deemed eligible.
Applying this test, the hearing officer, in his report, found that the
employees listed in schedule I did not regularly devote a substantial
part of their time to the operation or maintenance of Diesel engines
and accordingly recommended that their ballots not be opened or
counted. As to the employees listed in schedule II, the hearing officer
found that they did regularly devote a substantial part of their time
to the operation or maintenance of Diesel engines, and therefore rec-
ommended that their ballots be opened and counted.
The Employer excepts to the hearing officer's recommendations with
respect to 13 of the employees in schedule I,8 contending that they
should have been found to be eligible, on the following grounds:
4 Pursuant to Section 3 (b) of the National Labor Relations Act, the Board has delegated
its powers in connection with this case to a three -member panel [ Chairmgn Herzog and
Members Styles and Peterson].
8 These 13 comprise all the employees in schedule I except L. M. Smith, J. A. Bettis, M. C.
Bell, and Luciana Rodriquez.
WEST TEXAS UTILITIES COMPANY 269
(1) That inasmuch as these 13 employees were hired primarily be-
cause of their ability to operate and maintain Diesel engines, and that
is their most important function, they should be deemed eligible, how-
ever slight their employment in such work. The Employer would, in
effect, substitute a qualitative test for the quantitative test heretofore
applied by the Board in determining the eligibility of employees who
work only part of their time in jobs falling within the unit. This
contention of the Employer is rejected as contrary to Board precedent,
and particularly in view of the express finding in the Supplemental
Decision herein that eligibility in this case depended on substantiality
and regularity of employment in Diesel work.
(2) That, in any event, under the Ocala Star Banner decision,"
substantiality of employment is immaterial, the only requirement for
eligibility being, in effect, that the employees be regularly employed
within the unit. We do not so construe that decision. Moreover, in the
Supplemental Decision herein, as already stated, the Board has
already resolved this question contrary to the Employer's contention.
(3) That the hearing officer's findings that the 13 employees in
schedule I covered by the Employer's exceptions do not regularly
spend a substantial part of their time on Diesel operation or mainte-
nance are erroneous, because, in making these findings, the hearing
officer improperly rejected the oral testimony of the employees and
their supervisors as to the extent of their employment in Diesel work,
and relied solely on summaries of daily time records prepared by the
employees, showing the proportion of their time spent on Diesel opera-
tion and maintenance. The hearing officer, while finding that these
time records did not reflect all the time actually spent on Diesel work,
concluded that the records were more reliable than estimates made at
the hearing by the employees and their supervisors. This conclusion
seems proper in view of the fact that the time records were made by
the employees contemporaneously with their performance of the Diesel
work, and were not prepared with a view to influencing the Board's'
decision in this case, but solely for cost accounting purposes and to
comply with the regulations of the Federal Power Commission. In
any event, it would be contrary to our usual practice to set aside the
hearing officer's resolution of questions of credibility, unless they were
contrary to the clear preponderance of the evidence. We find no such
warrant in this record for reversing the hearing officer's findings. We
will therefore adopt his recommendation that the challenges to the
ballots of these 13 employees be sustained. In the absence of exceptions
thereto, we will also adopt his recommendation that the challenges to
the remaining 4 employees listed in schedule I be sustained.
9 97 NLRB 384.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Employer excepts also to the hearing officer's recommendation
that the challenge to the ballot of A. M. Coplen be overruled. This
employee testified that he spent most of his time in painting and other
maintenance work around the Diesel plant. While evidence of
another employee tended to contradict this testimony, the resolution
of this conflict in testimony was within the province of the hearing
officer. We will, therefore, adopt the hearing officer's recommendation
that Coplen's ballot be opened and counted.
The Petitioner's Exceptions
The Petitioner excepted to the hearing officer's recommendation that
the Board overrule the challenges to the ballots of Chappell, McCreary,
Lindsey, Valenzuela, and Drummond. These exceptions are based
principally on the Petitioner's disagreement with the hearing officer's
resolutions of questions of credibility. However, we find insufficient
basis in the record for disturbing the hearing officer's findings with
respect to these employees. We will, therefore, adopt the hearing
officer's recommendations with respect to these employees, and direct
that their ballots be opened and counted.
In the absence of any exceptions to the hearing officer's recommenda-
tions that the ballots of the remaining employees listed in schedule II
be opened and counted, we will adopt those recommendations.
Direction
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 Section 102.61 of the National Labor Rela-
tions Board Rules and Regulations, Series 6, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with West Texas Utili-
ties Company, the Regional Director for the Sixteenth Region shall,
pursuant to the Rules and Regulations of the Board set forth above,
within ten (10) days from the date of this Direction, open and count
the ballots of the 13 employees listed in schedule II attached hereto,
and thereafter prepare and cause to be served upon the parties a
revised tally of ballots, including therein the count of the aforesaid
13 ballots and of the 3 additional ballots heretofore directed to be
opened and counted in the Supplemental Decision of February 15,
1952.
IT IS FURTtIER DIRECTED that if the revised tally of ballots shows that
the Petitioner has won the election, the said Regional Director shall
so report to the Board and refrain from issuing a certification of
representatives to the Petitioner until after the Board has finally
disposed of the objections to the election filed by the Employer.
THEE CHAIN BELT COMPANY
Schedule I
271
V. L. Smith Eugene Allison R. L. Walker
L. M. Smith J. A. Bettis T. B. Henderson
Miguel Franco Jose Gonzales Luciana Rodriquez
James Price C. L. Reavis C. L. Morrow
F. H. Welling Acie Henderson M. C. Bell
H. L. Jones M. C. Powell
Schedule II
W. A. Cates W. H. Lindsey N. F. Roberson
Lewis R. Tucker W. E. Rule F. F. Loughran
Juan R. Urista John Mullins A. M. Coplen
W. B. McCreary Frank Drummond J. I. Chappell
Francisco Valenzuela
THE CHAIN BELT COMPANY , BALDWIN-DuCKWORI*+H DIVISION ( SPRING-
FIELD PLANT) and UNITED STEELWORKERS OF AMERICA, CIO, PETI-
TIONER . Case No. 1-RC-761. July 18, 1962
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 Sidney A. Coven, hearing
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 Murdock and Peterson].
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 employees 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 Petitioner, which already represents a unit of production
and maintenance employees at the Employer's Springfield belt manu-
facturing plant, now seeks to add to the unit a group of timekeepers
and experimental machinery room employees who have not previously
been included in the unit. Both the Petitioner and the Employer re-
quest that the Board direct an election to determine whether these
employees wish to be represented by the Petitioner as part of the larger
production and maintenance unit. We have previously included time-
100 NLRB No. 42.