Kentucky Utilities Co.

National Labor Relations Board - Board Decisions

Feb 24, 1949

81 N.L.R.B. 1006 (N.L.R.B. 1949)

In the Matter Of KENTUCKY UTILITIES COMPANY," EMPLOYER and
LOCAL 181, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL,
PETITIONER
Case No. 9-RC-161.Decided February 24, 1949
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held before a
hearing officer of the National Labor Relations Board. The hearing
officer 's rulings made at the hearing are free from prejudicial error
and are hereby affirmed.
Upon the basis of the entire record in this case, the Board 2 finds :
1. The business of the Employer :
The Employer, a Kentucky corporation, is engaged in the produc-
tion transmission, and distribution of electrical energy, in the pro-
duction and distribution of gas and ice, and in the pumping,
purification, and distribution of water. Its distribution lines con-
nect with those of the South Fulton Power and Light Company and
the Dixie Power and Light Company, both of which are located in
the State of Tennessee, and of the Old Dominion Power Company, lo-
cated in the State of Virginia. The Employer's operations cover 70
of the 120 counties in Kentucky. It sells electricity to and purchases
electricity from the Tennessee Valley Authority, and exchanges
electricity in emergencies with the Central Illinois Public Service
Company.
During the past 12-month period, the purchases of the Employer
have consisted principally of coal, operating and construction mate-
rials, and electrical energy, which were valued at $8,000,000, and of
which about 75 percent originated from outside the State of Ken-
tucky. During the same period, the Employer' s sales exceeded
$18,000,000, of which approximately 2 percent was shipped to points
outside of Kentucky by the purchasers. In addition, the Employer
I The name of the Employer appears as amended at the hearing.
2 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-man panel consisting of the undersigned
Board Members [ Chairman Herzog and Members Houston and Murdock].
81 N. L. R. B., No. 152.
1006
KENTUCKY UTILITIES COMPANY 1007
supplies electrical energy to interstate railroads, telegraph companies.
radio stations, and numerous large corporations engaged in int'r-
state commerce.
The Employer divides its operations and facilities into four op-
erating divisions. This proceeding is concerned only with its Tyrone
Plant, located near Tyrone, Kentucky. The plant consists of two
units, the first of which began operating in October 1947, and the
second in June 1948. The plant is not yet allocated to any division
of the Company but is listed, under the corporate law of Kentucky,
as a part of the Company as a whole. Separate statistics relating to
the contribution of this plant to the over-all business activities of the
Company were not offered, but are unnecessary to our finding.3
We have previously held,4 and we again find, contrary to its present-
contentions, that the Employer is engaged in commerce within the
meaning of the Act.'
2. The Petitioner is a labor organization claiming 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 appropriate unit :
The Petitioner seeks a unit composed of production and construc-
tion workers of the Employer at its Tyrone Plant. The Employer
contends that the unit requested is inappropriate and that only a
division-wide unit is appropriate.
The Company's main office is located in Lexington, Kentucky, where
its general policies are determined and the executive control of the
Company is centered. For managerial and operating purposes, the
Company's system is separated into four geographical divisions :
Mountain, Central, Western, and Blue Grass. In 1938, we found a
system-wide unit, including all production and maintenance employees
in the Company's four divisions, to be appropriate.e The union
therein involved lost the election for the system-wide unit.7 There-
after, although recognizing that the system-wide unit may still be
8 If an Employer 's main activities are such as to confer jurisdiction on the Board, they
also include its branches when the operations of the central office and the branches , as here,
are closely integrated . See Matter of Ritchie Grocer Company, 80 N. L. R. B. 285 ; Matter of
Dixie Wholesale Company, Inc., 73 N. L. R. B. 1203.
4 The Kentucky Utilities Company and divisions thereof have been found to be engaged in
commerce in 10 N . L. R. B. 1016; 11 N . L. R B.165; 46 N . L. R. B. 818; 52 N . L. R. B. 1273;
58 N. L . R. B. 335; 64 N . L. R. B. 120 ; and 76 N. L. R. B. 845.
5 Matter of Texas Public Service Company , Port Arthur Division , 80 N. L. R. B 372;
Natter of Lynchburg Gas Company, 80 N. L. R B. No. 184
6 Matter of Middle West Corporation , Kentucky Utilities Company, et al., 10 N. L. R. B.
018.
1 Id. at 28 N. L. R. B. 540.
1008 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
appropriate, we have held that employees in the Western,8 the Moun-
tain,' and the Central 10 divisions separately constitute integrated
and identifiable groups, which may also be appropriate for collec-
tive bargaining.
The instant petition requests a unit confined to the Tyrone Plant
which is newly constructed and has not as yet been assigned to any
operating division. The plant is located within the geographical
area of the Central Division, and is staffed principally by workers from
the Central Division who had voted in the election held within that
division.ii The record indicates that the work and administration of
the Tyrone Plant will not deviate from the established system-wide
practices. There is no history of collective bargaining within the
recently constructed Tyrone Plant.
Although we agree with the Employer's contention that the division-
wide units are appropriate'12 we do not think that this petition should
be dismissed because it does not request that unit. The employees in
a plant which the Employer has not assigned to a particular division
are in a position similar to that of employees in a plant for which the
Employer has uncertain plans for expansioli 13 We are reluctant to
deprive the employees presently employed in the Tyrone Plant of an
opportunity to select a bargaining representative until such time as
the Employer determines the divisional allocation of that plant, a
determination exclusively within the power of the Employer. We,
therefore, find that the single plant unit, under this circumstance is
appropriate.14
We find that the following employees at the Employer's Tyrone
Plant constitute a unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9 (b) of the Act:
All laborers, coal yard men, journeymen operating engineers, ap-
prentices and helpers, including working foremen,- the chemical ana-
8 64 N. L R B. 120.
8 53 N L. It. B. 1273.
1046N L. R. B. 818
11 46 N. L. R. B. 818, the propriety of this unit was confirmed in 58 N. L R. B. 335 and
76 N L R B 845.
12 Although we have recently held that system-wide , as opposed to division -wide, units are
most appropriate in public utilities ( Matter of Niagara Hudson Power Corporation, 79 N L.
R B 1115, and cases cited therein fins . 9 and 10 ), that issue is not here before us
13 See Matter of Western Electric Co., Inc , 76 N . L. R. B. 400
14 See Matter of Florida Power & Light Company, 42 N L. R. B. 742 and 63 N. L. R B.
484, 487
16 As the Employer testified that all hiring is done through the division offices, although
a superintendent can make recommendations which the division either approves or rejects,
and that discharges are made wholly by the supervisor of the plant , we find no merit in the
Employee contention that the maintenance foremen, electrical foremen, and chief turbine
operators should be excluded as supervisors These employees have no authority to hire,
discharge , promote, discipline , or lay off employees , or effectively to recommend such action,
and, at the most, are vested with extremely limited power to direct work Under these
circumstances, these working foremen will be included in the unit herein found appropriate.
KENTUCKY UTILITIES COMPANY 1009
lyst,16 all maintenance and repairmen and janitor, but excluding all
office and clerical employees, watchmen, professional employees,
guards and supervisors 17 as defined by the Act.
However, inasmuch as the unit above would be inappropriate if the
Tyrone Plant should be assigned to one of the divisions,"" we shall
make this Direction of Election contingent upon whether the plant
in allocated to one of the divisions within 10 days after this Direction.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer at the Tyrone
Plant, and unless, within 10 days from the date of this Direction, the
Employer shall have notified the Regional Director for the Ninth
Region, in writing, that the Tyrone Plant has been assigned to one of
the Employer's divisions, an election by secret ballot shall be conducted
as early as possible, but not later than 30 days from the date of this
Direction, under the direction and supervision of the Regional Director
for the Ninth Region and subject to Sections 203.61 and 203.62 of
National Labor Relations Board Rules and Regulations-Series 5, as
amended, among the employees in the unit found appropriate in para-
graph numbered 4, above, who were employed during the pay-roll
period immediately preceding the date of this Direction of Election,
including employes who did not work during said pay-roll period be-
cause they were ill or on vacation or temporarily laid off, but exclud-
ing those employees who have since quit or been discharged for cause
and have not been rehired or reinstated prior to the date of the election,
and also excluding employees on strike who are not entitled to rein-
statement, to determine whether or not they desire to be represented,
for purposes of collective bargaining, by Local 181, International
Union of Operating Engineers, AFL.
See Matter of Kentucky Utilities Company , 53 N. L R B 1273 , Matter of Fitzgerald Mills
Corporation , 77 N L. R . B 1156 ( electrical foremen) ; Matter of Standard Printing Co,
Inc., 80 N. L. R B 338 . The employees excluded as supervisors in Matter of Carolina
Power & Light Company, 80 N. L. R. B, No 202 , had the authority that these employees
lack.
Inasmuch as the Board hereby decides that the employees whose status was questioned by
the Employer are not supervisors, the Petitioner's motion to incorporate evidence to that
effect from the pending case No 9-CA-57 is therefore denied
to Matter of Commercial Solvents Corp., 80 N L R B. 277, and cases cited therein
17 Although the so -called technician substitutes for the superintendent when he is sick
or on annual vacation , the technician 's supervisory authority is exercised too sporadically
to warrant his exclusion as a supervisor from the unit herein found appropriate . Matter
of Ohio Power Company, 80 N. L. It. B 1334. He will therefore be included
ii See supra footnotes 8, 9, 10 , and 11 . If the Tyrone Plant is subsequently placed within
the Employer ' s administrative Central Division , it will automatically become part of that
division or unit for purposes of collective bargaining . See 58 N . L It. B 335 , 336 ; Matter
of Westinghouse Electrical Corporation , Cleveland Lighting Division, 79 N L. R B. 744.
At the present time, the International Brotherhood of Electrical Workers, Local Union
# B-915, is the certified bargaining representative of the Central Division employees