Public Service Co. of Colorado

In the Matter Of PUBLIC SERVICE COMPANY OF COLORADO and INTERNA- TIONAL BROTHERHOOD OF ELECTRICAL WORKERS , A. F.. L. Case No. 17-R-1003.-Decided January 17, 1945 Lee, Shaw, and McCreery, by Mr. William A. Byrans,.3rd, of Den- ver, Colo., for the Company. Messrs. A. L. Smith and H. W. Bell, of Denver, Colo., for the Union. Mr. Thomas A. Ricci, of counsel to the Board. DECISION AND DIRECTION OF ELECTION O STATEMENT OF THE CASE ,Upon a petition duly filed by International Brotherhood of Elec- trical Workers, A. F. L., herein called the Union, alleging that a ques- tion affecting commerce had arisen concerning the representation of employees of Public Service Company of Colorado, Denver, Colorado, herein called the Company, the National Labor Relations Board pro- vided for an appropriate hearing upon due notice before Elmer L. Hunt, Trial Examiner . Said hearing was held at Denver, Colorado, ,on December 7 and 8, 1944. The Compaaiy and the Union appeared and participated. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evi- dence bearing on the issues . The Trial Examiner 's rulings made at the hearing are free from prejudicial error and are hereby affirmed. All parties were afforded an opportunity to file briefs with the Board. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Public Service Company of Colorado, a public utility corporation organized and existing under the laws of the State of Colorado, has its principal office and place of business at Denver, Colorado. It is engaged in the production, distribution and sale of electrical energy. During the year 1943, the Company produced electrical energy in ex- 60 N. L. R B., No. 21. 109 110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD cess of 735,000,000 kilowatt hours. The Company also distributes natural gas, purchasing 90^ percent of its gas requirements from the Colorado-Interstate Gas Company, which brings the gas via its own pipe lines from the State of Wyoming to the Company in Colorado. The Company manufactures the remaining 10 pgrcelit of the gas it distributes. The Company's electric transmission lines connect directly with those of the United States Bureau of Reclamation at Greeley, Colo- rado. At that point is located a substation owned by the Greeley Electric Company, the United States Bureau of Reclamation, and the Company, and, except for $5 paid monthly to the substation.em- ployees by the United States Bureau of Reclamation, the Company bears the expense of its operation. During the year 1944, the Com- pany sold to the United States Bureau of Reclamation between 400,000 and 600,000 kilowatt hours of electrical power, an unspecified portion of which flowed into the State of Wyoming. The Company owns all the common stock of the Colorado-Wyo- ming Gas Company, which owns pipe lines running from Wyoming into Colorado and sells gas at wholesale in both States. The Colorado- Wyoming Gas Company also sells gas to the Cheyenne Light, Fuel, and Gas Company of Cheyenne, Wyoming, another wholly owned subsidiary of the Company. Among the Company's customer consumers of electricity and gas al-e Gates Rubber Company, Union Pacific Railroad, Burlington Rail- road, C & S Railroad, Western Union Telegraph Company,- Na- tional Broadcasting Company, and Montana State Telegraph and Telephone Company. These companies are admittedly engaged in interstate commerce. The Company also owns the Crown Tar Works, located in the city of Denver, which during the year 1944, produced paint and roof- ing materials valued in excess of $100,000. Approximately 25 percent of these products was shipped to points outside the State of Colorado. We find, contrary to the Company's contention, that it is engaged in commerce within the meaning of the National Labor Relations Act. II. THE ORGANIZATION INVOLVED International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, is a labor organization admitting to membership employees'of the Company. III. THE QUESTION CONCERNING REPRESENTATION The Company has refused to grant recognition to the Union as the exclusive bargaining representative of certain of its employees until the Union has been certified by the Board in an appropriate unit. PUBLIC SERVICE COMPANY OF COLORADO 111 A statement of a Board agent, introduced into evidence at the hear- ing, indicates that the Union represents a substantial number of em- ployees in the unit hereinafter found appropriate? We find that a question affecting commerce has arisen concerning the representation of employees of the Company, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. II. THE ORGANIZATION INVOLVED The principal issue presented herein is whether, as the Union as- serts, the operating, production, and maintenance employees of the Company's Boulder District, excluding militarized guards and"clerical and supervisory employees, may constitute a separate appropriate bargaining unit. The Company objects to any separation of its Boulder District employees from those of its other nine districts for the purposes of collective bargaining, contending that only a single system-wide unit is appropriate. With the exception of the con- struction crew stationed in the Boulder District and one, James Ward, the parties are in agreement upon the composition of an appropriate unit should the Board resolve the principal issue in favor of the Union's position. The Company divides its operations into 10 geographic districts in order that matters of local conecrn may be more efficiently adminis- tered. Throughout its districts it operates a number of steam power plants and hydro-electric power plants. Its lines and equipment are spread over a large portion of the State of Colorado, extending in 4 directions from its principal ofi-es at Denver, in some cases as much as 150 miles. The Company employes approximately 2,000 employees in its entire system, of which 805 are in its operating, production, and maintenance departments. The unit sought by the Union includes about 155 employees. There is support in the record for the Company's position that a system-wide unit is appropriate. The Company is a highly inte- grated public utility, with all general and administrative policies being formulated at its general office located in Denver. A "central system" connecting 7 of its 10 districts, including the Boulder Dis- trict, functions as a pool of electrical energy into which flows 90 per- cent of the power generated and distributed by the Company. The remaining 3 districts have power plants functioning independently of the "central system." In keeping with its centralized administrative 1 The Field Examiner reported that the Union submitted 80 authorization cards ; that the names of 77 persons appearing on those cards were listed on the Company's pay roll for the period ending September 30, 1944 and that there are 155 employees in the alleged appropriate unit The Trial Examiner stated that at the hearing the Union submitted nine additional authorization cards bearing apparently genuine signatures , and that the names of eight persons appearing upon those cards were found on the afore-mentioned pay roll. 112 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and operating set-up, the Company has 1 vice president in charge of all its electrical operations and another in charge of its gas operations. For its electrical operations it has 3 superintendents whose authority is system-wide, 1 in charge of electrical distribution, 1 in charge of hydroplant electrical production and transmission, and another in -charge of steam-plant electrical production. Those superintendents maintain offices-at Denver, where are also located central load dis- patchers who direct the assumption of load or cut-off of power from the various generating plants throughout the "central system" to meet .changing- requirements or to balance mechanical failures anywhere in the system. It is evident, therefore, that because of the centralized and closely integrated nature of the Company's operations, the sys- tem-wide unit it advocates is, utilmately, the appropriate one. On the other hand, there are factors in the re: ord which support the Union's present petition for a separate unit limited to employees of the Boulder District. Thus, the Company's only history of collective bargaining is- evidenced by a presently existing contract made with the Union in 1942 covering x,11 the Company's employees in its Grand Junction District, resulting from a consent election and designation by a Board Regional Director in that year.2 While there is some inter- change of employees among the districts, the extensive area covered by the Company's operations constitutes a substantial barrier to general contact among all employees as respects union activities. In addition, despite the Company's centralized management and control, Boulder District is clearly separable from the remaining districts by virtue of its ,district manager and chief engineer, whose duties are limited to super-, vision of the purely local affairs of the Company. The Company also maintains a separate pay roll for its Boulder District employees, many .of whom receive a wage scale different from that of similar classifica- tions in other districts. Finally, the Union has, without success, except for the Grand Junction District, made numerous efforts to organize the Company's other employees.3 From the foregoing facts, we are of the opinion that the employees -of the Boulder District comprise an appropriate unit.4 The Company has a construction crew stationed at its Boulder Dis- trict, including carpenters, riggers, welders, and,helpers. The Com- pany would include them', and the Union urges that they be excluded as a migratory group. These employees work under a construction 3 Case No. 22-R-245 ; designation dated February 8, 1942 3 The Union filed, and later withdrew, petitions in each of the following cases No 22- R-22 (Alamosa District), No 22-R-42 (Shoshone Hydroelectric plant ), No 22-R-45 (Grand Junction District, 1938), No 22-R-306 (heavy construction linemen in city of Denver), No. 17-R-788 (Steam production employees in Boulder District), and No. 17-R- 789 (electrical workers in the electrical system) In Case No . 17-R-790 , the Union lost a consent election following the filing of a petition in which is sought a system -wide unit of all production and maintenance employees. See Matter of Southern California Edison Co , Ltd ., 55 N L R. B 201 PUBLIC SERVICE COMPANY OF COLORADO 113 foreman and are used for any type of building alteration or construc- tion required at any of the company plants or installations, as well as for general clean-up and maintenance work. They erect poles, con- struct foundations for heavy machinery, build substations, and, at the time of the hearing, were engaged in repairing a coal elevator in the Boulder District. More than 50 percent of their time is spent in the Boulder District and they are on that district pay roll. Whenever any of them are sent to work outside their district, the Company pays for their transportation and subsistence during the assignment. Under these circumstances, we shall include the construction crew. The Company would exclude and the Union would include, one James Ward. This employee devotes more than 50 percent of his time to readingmeters, and also assists the storekeeper in a clerical capacity when not so engaged. The Company carries him on its accounting pay roll. Under the circumstances, we shall exclude James Ward.' We find that all operating, production and maintenance employees of the Company's Boulder District, including the construction crew, but excluding militarized guards, clerical employees, James Ward, and all supervisory employees with authority to hire, promote, dis- charge, .discipline, or otherwise effect changes in the status of em- ployees, or effectively recommend such action, constitute a unit ap- propriate for the purposes of collective bargaining within the mean- ing of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concelsning representation which has arisen be resolved by an election by secret ballot among the em- ployees in the appropriate unit who were employed during the pay- roll period immediately preceding the date of the Direction of Election herein, subject to the limitations and additions set forth in the Direction. 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 Relations Act, and pursuant to Article III, Section 9, of National Labor Relations Board Rules and Regulations-Series 3, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Public Service Company of Colorado, Denver, Colorado, an election by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Direction, under the direction and super- See Matter of Boston Edison Company, 51 N. L R. B. 118 028563-45-vol. 60-9 114 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vision of the Regional Director for the Seventeenth Region, acting in this matter as agent for the National Labor Relations Board, and sub- ject to Article III, Sections 10 and 11, of said Rules and Regulations, among the employees in the unit found appropriate in Section IV, above, who were employed during the pay-roll period immediately preceding the date of this Direction, including employees who did not work during the said pay-roll period because they were ill or on vaca- tion or temporarily laid off, and including employees in the armed forces of the United States who present themselves in person at the polls, but excluding those employees who have since quit or been dis- charged for cause and have not been rehired or reinstated prior to the date of the election, to determine whether or not they desire to be represented by International Brotherhood of Electrical Workers, A. F. L., for the purposes of collective bargaining.