Consumers Power Co.

National Labor Relations Board - Board Decisions

Nov 8, 1938

9 N.L.R.B. 742 (N.L.R.B. 1938)

In the, Matter of CONSUMERS POWER COMPANY and INTERNATIONAL
-BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 876
Case ; No. R- 100.11.-Decided November 8,'1938
.Electric ;and Gas Utility Industry-Investtigation, of 1 Representatives: contro-
versy concerning representation of employees:, rival organizations; employer's
refusal to grant; recognition of union-Unit Appropriate,for Collective Bargain-
'tng: all employees except supervisory and office empioyees, 'technical ' employees,
and temporary 'common laborers,- but including crew foremen; janitors and
watchmen, and meter readers and bill distributors ; form of self- organization ;
history of collective bargaining in industry as a whole-Election Ordered:
labor organization which was found to be company-dominated in Decision of
even date, excluded from ballot.
Mr. Charles F. McErlean, for the Board.
Bisbee, McKone, Badgley cC Kendall, by Mr. Don T. McKone, and
Mr. Walter D. Kline, of Jackson, Mich., for the Company.
Padway, Goldberg cC Tarrell, by Mr. A. G. Goldberg, of Mil-
waukee, Wis., for I. B. E. W.
Mr. Maurice Sugar, of Detroit, Mich., for U. W. O. C.
Mr. Frank C. Painter, of Jackson, Mich., for the Independent.
Mr. Joseph B. Robison, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
On February 2, 1938, International Brotherhood of Electrical
Workers, Local 876, herein called I. B. E. W., filed with the Regional
Director for the Seventh Region (Detroit, Michigan) a petition
alleging that a question affecting commerce had arisen concerning
the representation of employees of Consumers Power Company,
Jackson, Michigan, herein called the Company, and requesting an
investigation and certification of representatives pursuant to Section
9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called
the Act. On August 12, 1938, the National Labor Relations Board,
herein called the Board, acting pursuant to Section 9 (c) of the Act
9 N. L. R. B., No. 67.
742
DECISIONS AND ORDERS 749
and Article III, Section 3, of National Labor Relations Board Rules
and Regulations-Series 1, as amended, ordered an investigation and
authorized the Regional Director to conduct it and to provide for
an appropriate hearing upon due notice.
On August 18, 1938, the Regional Director issued a notice of hear-
ing, copies of which were duly served upon the Company, I. B. E. W.,
Independent Power Employees' Association, herein called the Inde-
pendent, and Utility Workers Organizing Committee, herein called
U. W. O. C., the latter two being organizations claiming to repre-
sent employees directly affected by the investigation.' Pursuant to
the notice, a hearing was held on August 29 and 30, 1938, at Detroit,
Michigan, before Tilford E. Dudley, the Trial Examiner duly desig-
nated by the Board. The Board, the Company, I. B. E. W., U. W.
O. C., and the Independent were represented by counsel and partici-
pated in the hearing. Full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the
issues was afforded all parties.
At-the commencement of the hearing, U. W. O. C. moved to inter-
vene as a party in the proceeding. The motion was granted. The
Independent made a similar motion, which was denied on the ground
that the Independent was already a party by virtue of the,fact that
it was named in the petition. U. W. O. C. reserved its right to ob-
ject to further participation by the Independent in this proceeding
in the event that the Board held that that organization was com-
pany-dominated.2 The Company made a motion to dismiss the pro-
ceeding on various jurisdictional and constitutional grounds. The
motion was denied. The Company renewed the motion at the end
of the hearing, at which time the Trial Examiner reserved decision.
All parties were given 10 days from the end of the hearing to request
oral argument before the Board. During the course of the hearing
the Trial Examiner made several rulings on other motions and on
objections to the admission of evidence. The Board has reviewed
the rulings of the Trial Examiner, including the rulings described
above, and finds that no prejudicial errors were committed. The
rulings are hereby affirmed. The motion on which the Trial Exam-
iner reserved decision is hereby denied.
i On February 2, 1938, a charge was filed by Local 740, United Electrical, Radio &
Machine Workers of America , herein called the United , in Matter of Consumers ' Power
Company, a corporation and Local No. 740, United Electrical, Radio h Machine Workers
of America, Case ' No. C-790, alleging that the Company Thad' engaged ' in unfair, labor
practices affecting commerce, within the meaning of the Act In a Decision and Order
of even date with the instant Decision (9 N. L. R B. 701), the Board found that
the Company had dominated and interfered with the formation and administration of
the Independent and had contributed support to it, and ordered the Company to cease
and desist from such domination , interference , and support , and to refrain from recog-
nizing the Independent as representative of any of its employees.
2 See footnote 1, sup? a. --
744 NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Counsel for the Board, the Company, and I. B. E. W. entered into
a stipulation whereby certain portions of the record in Case No.
C-790I were incorporated in the record in the instant proceeding.
The stipulation was accepted by U. W. O. C. and the Independent.
In a Decision in Case No. C-790, of even date with this Decision,
certain findings of fact with regard to the operations of the Company
are made, which are based on the portions of the record referred to
in the stipulation. The findings of fact in Case No. C-790, entitled
"I. The business of the respondent," are hereby incorporated in this
Decision and are made a part of the Findings of Fact herein.
H. THE ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers is a labor organi-
zation affiliated with the American Federation of Labor. Local 876
thereof admits to membership electrical workers who are employees
of the Company. It is divided into several branches on a geo-
graphical basis.
Utility Workers Organizing Committee is a labor organization
affiliated with the Committee for Industrial Organization, herein
called the C. I. 0., admitting to membership employees of the Com-
pany.
Independent Power Employees' Association is an unaffiliated labor
organization, which admits to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
It was stipulated by all parties that I. B. E. W., U. W. O. C. and
the Independent each represents-a substantial number of the Com-
pany's employees. I. B. E. W. has been organizing employees of the
Company since the beginning of 1937. The Company had a contract
with predecessor organizations of U. W. O. C. which was executed
on June 8, 1937. The latest extension of this contract expired on
September 4, 1938. All these labor organizations claim to represent
all of the employees in an appropriate bargaining unit, and these
claims have been called to the attention of the Company. The Com-
pany is of the opinion that none of them represents a majority.
I. B. E. W. contends that an election should be held to determine
representatives for the purposes of collective bargaining. U. W. O.
C. denies that such an election is necessary. Counsel for the Com-
pany stated that it had no objection, to the holding-of an. election.
8 See footnote 1, supra.
DECISIONS AND ORDERS 745
We find that a question has arisen concerning representation of
employees of the Company.
IV. THE EFFECT OF THE QUESTION CONCERNING REPRESENTATION UPON
COMMERCE
We find that the question concerning representation which has
arisen, occurring in connection with the operations of the Company
described in Section I above, has a close, intimate, and substantial
relation to trade, traffic, commerce, transportation, and communica-
tion among the several States, and tends to lead to labor disputes
burdening and obstructing commerce and the free flow of commerce.
V. THE APPROPRIATE UNIT
It was agreed by all parties that a single unit composed of em-
ployees throughout the Company's entire system is appropriate for
the purposes of collective bargaining. It was also agreed by stipula-
tion at various points in the hearing that the following -groups of
employees should be excluded from the unit : Office employees : sales-
men; collectors, including those listed by the Company in its "credit
and collections" departments; connected load inspectors; electrical,
mechanical, and civil engineers; efficiency men and junior engineers;
draftsmen; surveyors; chemists; architects; temporary common
laborers hired for a specific job and for not more than 6 months;
part-time local service men and local service men or agents who do
not perform mechanical work in the regular course of employment;
and storekeepers with supervisory powers who do no mechanical
work. - As to the 'last two categories, U. W. O. C. agreed to the exclu-
sions contained in the stipulation, but contended that they were not
broad enough. U. W. O. C. also contended that certain other groups,
as described below, should be excluded. It was agreed that the
exclusion of temporary common laborers was not to exclude seasonal
employees. We see no reason for not excluding from the appropri-
ate unit any of the categories of employees whose exclusion was
agreed upon by the parties. We consider now the groups concerning
which there is dispute, all of which U. W. O. 'C. wishes to exclude,
and I. B. E. W. to include, in the appropriate unit. Since, as a
result of our Decision and Order in Case No. C-790,4 the Independ-
ent's claim for certification is to be disregarded, we do not consider
the contentions as to the appropriate unit advanced by it.
Crew foremen.-Crew foremen are clearly supervisory employees.
They direct the work of crews of from 2 to 10 men working away
from headquarters on electric lines, gas mains, and the like. They
have great responsibility and are consulted- with regard to raises, pro-
See footnote 1, supra.
746 NATIONAL LABOR RELATIONS BOARD
motions, and demotions, of the men under them. There is evidence
that on some occasions they have exercised the power to discharge.
The Company considers them to be supervisory employees and be-
lieves they should be excluded.
Despite the clearly supervisory nature of the duties of the crew
foremen, however, we believe they should not be excluded from the
appropriate unit. In case of curtailment of the Company's pay roll,
they may lose their status as crew foremen and become simply mem-
bers of the remaining crews. I. B. E. W. admits them to membership.
U. W. O. C. and its predecessors likewise admitted them to member-
ship and attempted to bargain for them. It is clear that the crew
foremen were excluded from the contracts between the Company and
the C. I. O. unions solely because the Company 'demarided their exclu-
sion. This was over the,express opposition of the C. I., O. repre-
sentatives. U. W. O. C. still,numbers ,crew foremen among its mem-
bership. It contends that the fact that they were excluded from the
contract prevented U. W. O. C._ from inducing other crew foremen to
join. We do not consider this argument persuasive for their exclu-
sion. Representatives of, U. W.-O. C. admitted that if the crew fore-
men had not been excluded from the contract they would now have
no objection to their inclusion in the appropriate unit. U. W. O. C.
has a contract with at least one other power company which covers
foremen. Finally it is the established practice of I. B. E. W. to
include foremen among its membership, to bargain for them, and to
include them in its contracts.
The fact that certain employees have duties of a clearly supervisory
nature does not necessarily preclude their inclusion in a bargaining
unit, where, as here, it is the established practice in the industry to
include them, and that, practice has been recognized, as to employees
of the Company in question, by the labor organizations involved. We
will include crew foremen in the appropriate, unit.
Plant supervisors.-The Company employs shift supervisors, who
are in charge of a particular plant during one•shift, and turbine-room
and boiler-room supervisors, who direct the work in, parts of plants,
under the direction of shift supervisors. Shift supervisors do no
manual work, but turbine-room and boiler-room supervisors do a lim-
ited amount of such work. A representative of the Company testified
that the authority of the latter is parallel to that of the crew foremen.
It appears in addition that they are in charge of substantial prop-
erties -of the Company. -
It thus appears that, as in the case of crew foremen, the plant
supervisors have duties of a clearly supervisory nature. However,
although I. B. E. W. admits them to membership, U. W. O. C. does
not. Thus the case of plant supervisors differs from that of crew
foremen in that U. W. O. C. does not admit the former, and has not
; ,.,,,DECISION'S AND ,ORDERS, , . 7,47
tried to bargain for them. We will consequently adhere to our usual
practice of, excluding minor supervisory employees, where one of the
participating,labor•organizations desires such exclusion.,,,,,,;, , .
Other supervisory employees.-There_is no stipulation excluding
supervisory, employees generally from the unit. Such, employees are
eligible to membership in I.; B. E., W•, but, not in, U. W.. O., C.
U. • W. , O. , C. ,wishes to exclude such employees ,from the. appropriate
unit and I. B. E. W. is, willing to. exclude general foremen. • In the
absence of evidence that supervisory employees generally should be
included, we will follow our usual practice and exclude them from the
appropriate unit, except as specifically noted. As used hereinafter,
the term, supervisory employees, means employees who have the
power to hire or discharge or the power to recommend hiring or dis-
charging, and includes general foremen, assistant foremen, plant,
supervisors, and all other employees above the rank of crew foremen.
Load dispatchers.-Load dispatchers have positions of consider-
able responsibility, and, receive high salaries. Their work is not
supervisory, however, since no employees work under their direction.
They direct the output of the Company's various plants regarding
the turning on and off of plants and adjusting loads. They antici-
pate load-requirements and the water supply for hydraulic produc-
tion. Finally, they control the Company's private communications
system. The Company considers them close to management and
supervision.
I. B. E. W. contends that the work of load dispatchers is merely
that of switchboard operators. While it appears that their duties
are of a responsible nature, we do not believe that the record shows
that they should be excluded from the appropriate unit.
Meter readers and bill distributors.-Meter readers and bill dis-
tributors perform the functions their names suggest. Their duties
are partly clerical, and consist otherwise of the labor of traveling
from one customer to another. To some extent their work is inter-
changeable. Bill distributors receive lower pay than meter readers.
Both work out of offices and are part of the customers' accounting
department. They require no training, and although they advance
most commonly into the office staff, there is nothing about their work
which prepares them for either office or manual work with the Com-
pany. The Company considers them outside workers.
Both U. W. O. C. and I. B. E. W. admit meter readers and bill
distributors to membership, and both have included, them in con-
tracts with other electric power companies. U. W. O. C. contends,
however, that they should be excluded here because, at the insis-
tence of the Company, they were excluded from the contracts above
mentioned. -
748 NATIONAL LABOR RELATIONS BOARD
In view of the established practice of both unions here involved,
and the fact that the inclusion of meter readers and bill distributors
in the appropriate unit is not unreasonable, they will be included.
Janitors and watchmen.-The Company employs watchmen and
janitors in office buildings and in service buildings and plants. As
used herein, plant janitors and watchmen will include service build-
ing janitors and watchmen. U. W. 0. C. contends that office janitors
and office watchmen should be excluded. The Company contends
that all watchmen should be excluded. I. B. E. W. desires the in-
clusion of all these groups.
We fail to see any merit in the Company's contention that the
nature of the duties of the watchmen is so confidential as to require
their exclusion from the appropriate unit. It appears that in some
,cases, the duties of watchmen and janitors may be combined in a
single employee. Moreover, the watchmen are not segregated in a
separate department, but work under the direction of the supervisor
of the building in which they are stationed. Both unions admit
plant watchmen to membership and desire their inclusion in the
appropriate unit.
We sustain the contention of U. W. 0. C. with regard to office
janitors and watchmen, although they are eligible to membership
in both I. B. E. W. and U. W. 0. C. While the duties of these em-
ployees do not differ from those of the plant watchmen and fore=
men, they do not come in contact with other employees who are in-
cluded in the appropriate unit. Since office employees are being ex-
cluded from the unit, we will also exclude office janitors and
watchmen.
Local service inen.-As noted above, it was stipulated that the
local service men to be excluded from the appropriate unit should
include at least those who do not perform mechanical work in the
regular course of employment. U. W. 0. C. desires to include in
the unit only those local service men who have no supervisory pow-
ers, and who devote a substantial part of their time to mechanical
work.
Local service men are representatives of the Company operating
in communities which are out of reach of those towns in which the
Company has established operating headquarters. Their duties are
to take care of any matters affecting the Company which they can
handle. They receive and transmit applications for service. They
turn customers' service on and off. In some cases they read meters.
They make minor repairs and in some cases work even on energized
lines. Finally, in case of an emergency requiring additional help,
they may hire temporary employees and supervise their work.
The record shows that some local service men have joined
U. W. 0. C. and that U. W. 0. C. has tried to bargain for them in
DECISIONS AND ORDERS 749
the past. We see no reason for excluding any local service men
other than those whose exclusion was agreed on.
Storekeepers.-During the course of the hearing the parties agreed
to the exclusion of storekeepers with supervisory powers who do not
ordinarily do mechanical work. The record does not clearly show
whether U. W. 0. C. maintained its position that other storekeepers
should be excluded.
The work of storekeepers varies from those who are in charge of
large storerooms, who do little or no mechanical work, and who have
power to hire and discharge, to others who have no assistants and
who do other work such as that of timekeepers or pay-roll clerks.
A representative of the Company stated that he considered that those
whose work was largely clerical should be excluded and that those
whose work was largely manual should be treated as operating
employees.
We see no reason for excluding any storekeepers other than those
whose exclusion was agreed upon.
We find that all the employees of the Company, excluding general
and assistant foremen, plant supervisors, and other supervisory
employees except as expressly included below, office employees, office
building janitors and watchmen, collectors, connected load inspec-
tors, electrical, mechanical, and civil engineers, efficiency men and
junior engineers, draftsmen, surveyors, chemists, architects, tempo-
rary common laborers hired for a specific job and for not more than
6 months, part-time local service men and local service men who do
not perform mechanical work in the regular course of employment,
and storekeepers with supervisory powers who do not ordinarily do
mechanical work, but including crew foremen, load dispatchers,
meter readers and bill distributors, plant janitors and watchmen, and
storekeepers other than those excluded above, constitute a unit appro-
priate for the purposes of collective bargaining and that said unit
will insure to employees of the Company the full benefit of their
right to self-organization and to collective bargaining and otherwise
effectuate the policies of the Act.
VI. THE DETERMINATION OF REPRESENTATIVES
It is not contended that either of the labor organizations here
involved can be certified without the holding of an election, nor is
there any evidence in the record on which such a certification could
be based. Hence we find that the question concerning representation
which has arisen can best be decided by holding an election by secret
ballot. Since we have held in a decision of even date' that the
5 See footnote 1, supra
750 NATIONAL LABOR RELATIONS BOARD
Independent has been dominated, interfered with, and supported by
the Company, its name will not appear on the ballot.
At_the hearing all parties but U:- WW: O. C. agreed that in the event
an election was directed by the Board, employees of, the Company on
the payroll of July 31, 1938, should, -be eligible to participate.
Counsel for-U. W. OX. reserved j udgment,, and thereafter expressed
no opinion. Counsel for the Company stated that he' was informed
that-,the pay roll would not change materially for 2 or 3 months.
No reason was offered for the selection of July 31. We will therefore
direct that employees within the appropriate unit, who were on the
pay roll of the Company for the pay-roll period next preceding the
date of the commencement of the hearing, August 29, 1938, will be
eligible to vote.
- Upon the basis of the above findings of fact and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. A question affecting commerce has arisen concerning the repre-
sentation of employees of Consumers Power Company, Jackson, Mich-
igan, within the meaning of Section 9 (c) and Section 2 (6) and (7)
of the Act.
2. All the employees of the Company, excluding general and assist-
ant foremen, plant supervisors, and other supervisory employees
except as expressly included below, office employees, office building
janitors and watchmen, collectors, connected load inspectors, electrical,
mechanical, and civil engineers, efficiency men and junior engineers,
draftsmen, surveyors, chemists, architects, temporary common labor-
ers hired for a specific job and for not more than 6 months, part-time
local service men and local service men who do not perform mechan-
ical work in the regular course of employment, and storekeepers with
supervisory powers who do not ordinarily do mechanical work, but
including crew foremen, load dispatchers, meter readers and bill dis-
tributors, plant janitors and watchmen, and storekeepers other than
those excluded above, constitute a unit appropriate for the purposes
of collective bargaining, within the meaning of Section 9 (b) of
the Act.
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 Rela-
tions Act, and pursuant to Article III, Section 8, of National Labor
Relations Board Rules and Regulations-Series 1, as amended, it is
hereby
DIRECTED that, as part of the investigation authorized by the Board
to determine representatives for the purposes of collective bargain-
DECISIONS AND ORDERS 751
ing with Consumers Power Company, Jackson, Michigan, an elec-
tion by secret ballot shall be conducted within forty-five (45) days
from the date of this Direction, under the direction and supervision
of the Regional Director for the Seventh Region, acting in this mat-
ter as agent of the National Labor Relations Board, and subject to
Article III, Section 9, of said Rules and Regulations, among all the
employees of the Company, excluding general and assistant fore-
men, plant supervisors, and other supervisory employees except as
expressly included below, office employees, office building janitors
and watchmen, collectors, connected load inspectors, electrical, me-
chanical, and civil engineers, efficiency men and junior engineers,
draftsmen, surveyors, chemists, architects, temporary common la-
borers hired for a specific job and for not more than 6 months, part-
time local service men and local service men who do not perform
mechanical work in the regular course of employment, and store-
keepers with supervisory powers who do not ordinarily do mechani-
cal work, but including crew foremen, load dispatchers, meter readers
and bill distributors, plant janitors and watchmen, and storekeepers
other than those excluded above, who were on the pay roll of
the Company for the pay-roll period next preceding August 29,
1938, except those who have since quit or been discharged for cause,
to determine whether they desire to be represented by International
Brotherhood of Electrical Workers, Local 876, or by Utility Workers
Organizing Committee, for the purposes of collective bargaining, or
by neither.
[SAME TITLE
AMENDMENT TO DECISION AND DIRECTION OF
ELECTION
November 03, 1938
On November 8, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election in the
above-entitled proceedings. The Board hereby amends its Decision
by adding, after the second paragraph of Section VI, the following
paragraph :
We will direct the election to be held under the direction and
supervision of the Regional Director for the Seventh Region, who
shall determine in his discretion the exact times, places, and pro-
cedure for giving notice of the elections and for balloting. We
expressly authorize the use of the United States mail for such
purposes and the use of agents, if feasible, to journey through the
Company's various territorial divisions to conduct elections at
752 NATIONAL LABOR RELATIONS BOARD
appropriate places, collecting the votes in sealed containers for
delivery to the Regional Director. In providing for the taking
of ballots by mail, the Regional Director shall specify the date by
which envelopes containing returned ballots must be mailed.
Ballots returned in envelopes postmarked at a later date shall
not be counted. Each employee who is permitted to vote by mail
shall be notified of the date by which he must mail his ballot.
The date so fixed by the Regional Director shall not in any event
be later than January 7, 1939.8
The Board hereby amends its Direction of Election by striking
therefrom the words, "within forty-five (45) days from the date of
this Direction," and substituting therefor the words "within sixty (60)
days from the date of this Direction."
6 See Matter of Pacific Gas and Electric Company and United Electrical & Radio
Workers of America, 3 N. L. R B . 835 ; and Matter of Pacific Greyhound Lines and
Brotherhood of Locomotive Firemen and Enginenien, 4 N. L. R. B. 520.
9 N. L. R B , No. 67a.