Lake Superior District Power Co.

In the Matter of LAKE SUPERIOR DISTRICT POWER COMPANY, EMPLOYER and LOCAL No. 276, INTERNATIONAL BROTHERHOOD OF ELECTRICAL. WORKERS, AFL, PETITIONER Case No. 18-RC-349.-Decided November 10, 1949 DECISION AND DIRECTION OF ELECTION Upon a petition and an amended petition duly filed, hearings ink this case were held at Ironwood; Michigan, on April 14, and Septem- ber 2, 1949, before Erwin A. Peterson, hearing officer of the National Labor Relations Board. The hearing officer's rulings made at the- hearings are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of 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 [Members Reynolds, Murdock, and Gray]. 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 Petitioner is a labor organization which claims to represent certain 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) and Section 2 (6) and (7) of the Act. 4. The appropriate unit : The Employer is a public utility engaged in the distribution of light, power, and gas in western Upper Michigan, and northern Wis- consin. In addition, it operates 11 electric power plants. The Petitioner, in its amended petition, seeks a unit including all employees of the Lake Superior District Power Company, excluding office and clerical employees, professional employees, and supervisors as defined in the Act. The Employer generally agrees with the com- position of the unit sought by the Petitioner in the amended petition. However, the parties are in dispute as to the status of certain categories whom the Petitioner would exclude either as supervisors, independent contractors, part-time, technical, professional, or temporary em- ployees. 87 NLRB No. 3. 8 LAKE SUPERIOR DISTRICT POWER COMPANY 9 The record discloses that all the individuals in'the classifications of line foreman, construction foreman, construction superintendent, fore- man representative, gas foreman, chief operator, chief engineer, and service supervisor, in addition to supervising the work of employees assigned to their respective group, possess authority to discipline such employees as well as effectively to recommend hiring and discharge, and in some instances possess authority independently to discharge such employees and to hire employees in emergencies. We conclude that such individuals are supervisors within the meaning of the Act and they are, accordingly, excluded from the unit hereinafter found appropriate. Among those whom the Petitioner would exclude as supervisors are individuals included within the following classifications : Diesel plant foremen: Each of the two Diesel plant foremen at Diesel plants presently operating on a stand-by basis,' has under his supervision as a part-time employee for approximately .2 days a week, one operator who spends the remaining portion of his working time as a member of a line crew. While the operator is under his supervision, the Diesel plant foreman has authority to discipline and effectively to recommend the discharge of this operator. As the Diesel plant foremen have, and regularly exercise, super- visory authority for a part of every week, we find that they are super- visors within the meaning of the Act.2 Auto repair foreman: The Employer contends that the pay-roll classification of the auto repair foreman, who is a first-class mechanic and machinist, is a misnomer. This individual does all the automotive repair work on company owned cars and trucks and all the machine shop work on the day shift at the car barns. On occasions when there is extra work to be performed, mechanics helpers, who work on other shifts, may be brought in on the day shift by the auto repair foreman. Other employees who are night watchmen, laborers, janitors, and boiler room tenders, also do car washing and greasing at which time they are under the supervision of the auto repair foreman. However, the auto repair foreman has no authority to make recommendations relative to hiring, discharging, or disciplining any of these employees. Under these circumstances, we conclude that the auto repair foreman is not a supervisor within the meaning of the Act, and shall, accord- ingly, include him in the unit hereinafter found appropriate. "Before those Diesel plants were placed on a stand -by operation basis about a month prior to the date of the second hearing , these Diesel plant foremen were in charge of a crew of four full time operators. 2 See Oklahoma Publishing Co., 81 NLRB 932; The Texas Company, Salem Gasoline Plant, 85 NLRB 1211. 10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Service foreman: The Employer contends that the pay-roll desig- nation of service foreman is a misnomer and that this employee should be classified merely as a serviceman. He is an hourly paid employee who repairs appliances, possesses no supervisory authority, and has no employees under his direction. As the record does not establish that this individual has any super- visory authority we shall include him in the appropriate unit. Meter superintendent: The meter superintendent is a technician in maintenance, repair, and installation of switchboards, switchboard meters, and relays, who supervises all installation of power meters. He has no particular employees regularly assigned to him, but usually takes metermen from the district, wherein he is making the installation, and supervises their work. He has the power to recommend discipline of such employees while they are performing their work under his supervision. As a technician in this type of work, he is responsible for the accuracy of the work and must exercise independent judgment in responsibly directing the work of the metermen who are assigned to him for each particular job. We find, therefore, that he is a super- visor within the meaning of the Act, and shall exclude him from the Unit.3 Meter department foremen: These individuals, in addition to mak- ing all calculations and performing other specified duties, have charge of meter reading and installation of small meters and equipment. They have from one to four meter readers under their supervision. With respect to the foreman in charge of four meter readers, the Em- ployer admits that he has the authority to recommend removal of the meter readers. Thus, in addition to being in charge of, and respon- sible for, their respective departments, the Employer admits that the meter department foremen supervise the work of the employees in those departments. As the meter department foremen responsibly direct the work of the employees in their respective departments, we con- clude that they are supervisors within the meaning of the Act." We shall, accordingly, exclude them from the unit. First-class linemen--assistant foreman: The Petitioner urges that 2 of the 10 first-class linemen are supervisors. It appears that both of these men are paid a few cents an hour more than the regular top rate for first-class linemen. The Employer claims that the reason for this additional compensation is because of added work responsi- bility 5 rather than supervisory authority. One of these first-class line- 8 See Celanese Corporation of America, 80 NLItt 61. 4 See footnote 3, supra. a One of the first-olass linemen in question works on hot wires with a second-class line- man but without a foreman present. The other, in addition to his crew duties as a first- class lineman, operates a very expensive digging machine. LAKE SUPERIOR DISTRICT POWER COMPANY 11 men has the pay-roll title of assistant foreman.6 He is called upon to substitute for the regular line foreman when the latter is sick or on' vacation. However, it does not appear that this occurs with any degree of frequency or regularity. Furthermore, he has no authority to dis- cipline or recommend change in the status of the crew members even in the absence of the foreman. We find, in view of the above, that the first-class linemen are not supervisors within the meaning of the Act.7 Accordingly, they will be included in the unit. The Petitioner would exclude as professional, technical, managerial employees, and/or supervisors, individuals falling within the follow- ing classifications : Station technician: This employee maintains and installs all fine installations on boiler and generator switchboards and operates the Diesel plant at Hayward. He has no employees under his super- vision. The record discloses that while he has no professional train- ing, he received from the Navy a technical training upon the basis of which he became qualified for the position of station technician. As the parties do not dispute and we find that the station technician is a technical employee, we shall exclude him from the unit hereinafter found appropriate. Draftsmen-engineers; transitman-draftsman : Neither of the two individuals in the classification of draftsman-engineer is a graduate engineer. Both are persons who have acquired their knowledge through years of practical experience. They perform all the sur- veying for the Employer. One of these men has .a crew of three or four employees under his supervision. The other presently has only one helper but is expected to be assigned a crew in the spring. The draftsman-engineer can effectively recommend change in status of the men in his crew. The transitman-draftsman works in the field as an instrument man with the surveyors. He runs the photographic machines for photostating and blueprinting, does drafting, plots gen- eration flow curves and keeps records relating thereto. The Employer expressed the belief that the work of the draftsmen-engineers and transitman-draftsman is of a technical nature and that their interests are more closely allied with those of office and technical employees rather than production and maintenance employees. Without determining whether any of these employees are super- visors or professional employees, we find that they are technical em- ployees similar to the general classifications of draftsmen, blueprint operators and field surveyors whom we have excluded from produc- "The Employer claims that his pay-roll title is merely a carry-over error from an earlier period of extra building when he had charge of a crew. T See E. I. du Pont de Nemours and Company, Inc., Rayon Division, 85 NLRB 1516, and cases cited therein. 12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tion and maintenance employee groups because their interests are dissimilar a The draftsmen-engineers and transitman-draftsman are, accordingly, excluded from the unit hereinafter found appropriate. . Buyers of rights-o f -way : There are two individuals who fall under this classification .9 Their duties consist of letting contracts to brush- ers and brush burners for the clearing of rights-of-way, and nego- tiating contracts for the plirpchase of land for rights-of-way. All contracts are negotiated by the buyer within a certain price leeway set by ' the company. As these employees must work whenever they are able to contact the persons with whom they are negotiating contracts, they have no set hours. Thus their employment conditions are dif- ferent from those of other employees 10 Furthermore, it appears that the interests of these individuals are more clearly identified with' management than with the rank and file employees."' We shall, ac- cordingly, exclude them from the unit. The Employer would include in the unit several groups whom the Petitioner would exclude as part-tinge or temporary employees or as independent contractors. Painters: There presently are two painters carried on the Em- ployer's pay roll.12 The Employer's testimony that a painter, re- cently hired on 'a-permanent basis to do the painting throughout the Employer's operations, is entitled to vacation,. sick leave, and other' permanent employee benefits, was undisputed. The Petitioner's claim that painters are temporary employees whose employment is only for the duration of a specific job, is based on the Employer's pre- vious practice.13 We do not believe that the past practices of the Employer of en- gaging painters for the duration of a specific job necessarily estab- lishes that the painters presently on the'Employer's pay roll are like- wise temporary employees. On the contrary, we find that, inasmuch as the present painters were hired on a permanent basis and are en- titled to all of the permanent employee benefits, they are in fact 8 See , Welding Shipyards, Inc., 81 NLRB 936; Ingersoll Milling Machine Company, 78 NLRB 535. 9 One of the buyers is on a full-time salaried basis , the other is privately a member of a real estate firm and performs such duties for the Employer by the day whenever his services are needed. Stokely Foods, Inc., 81 NLRB 1103. n See Charles Livingston & Sons, Inc., 86 NLRB 30. ' The Employer was unable to explain the status of one painter and was not certain whether the inclusion of his name or title was a pay-roll error. 18 It appears that the Employer has in the past hired painters who have been placed on the pay roll until the need for their services has been accomplished at which time they are discharged . The Employer admits that recently 10 or 15 such painters , who were taken on to paint the Ashland steam plant, have finished their work and have been taken off the pay roll. LAKE SUPERIOR DISTRICT POWER COMPANY 13 permanent employees whom we shall include in the unit herein found appropriate. Street light tenders; switching men: The Employer has on its pay roll approximately 14 part-time employees who work from 2 to 5 hours a week and are guaranteed a minimum of $10 or $15 a month 14 'These employees live in small towns which the Employer supplies with power and light. Their duties consist of observing that street lights go on, reporting. irregularities or burned out lights, and being on call whenever the Employer wants them to operate switches on the trans- mission lines. Because their work is very sporadic they have no .supervisors, receive no vacation benefits, and do not participate in the employees' hospitalization and insurance plans. These employees have very little contact with regular employees and the record indi- cates that for the major portion of their time they are privately engaged either as business men, or as executives or employees of other, employers. Although these employees perform some part-time duties each week,. the duties performed are not comparable to those of any full-time employees in the unit. Further, their conditions of employment and interests are entirely different from those of the ' employees in the unit. We shall, accordingly, exclude them from the unit herein found appropriate.15 Brushers and brush burners: Individuals carried on the pay roll under various job titles 16 are engaged on a contract basis to clear rights-of-way along the Employer's transmission lines. The evidence. indicates that when each individual completes the work covered by his contract he will be taken off the pay roll. There is insufficient 'evidence in the record upon which to base a determination as to whether, as urged by the Petitioner, these individuals are independent contractors. However, since the hearing the parties have admitted that all of these contracts will be completed in the very near future. In view of the foregoing, we find that the brushers and brush burners are, at most, only temporary employees, hired for the duration of a particular job.17 We shall, accordingly exclude them from the unit. In accord with our usual practice, we shall also exclude from the unit employees who are close relatives of executives of the Employer 18 14 Although these part-time employees are assigned the various job titles of switching men, switching operators , street light tenders, and street light maintenance men, the work performed by employees in each of these classifications is practically the same. 16 See Stokely Foods, Inc., supra; Natural Products Company, 82 NLRB 1418. 10 Brushing, brusher, brusher contract , burning brush , brush burner, and contract brusher. 17 See Belmont Radio Corp., 81 NLRB 23; Southern Paperboard Corp., 80 NLRB 1456; Jefferson Chemical Co., 79 NLRB 584. Is Denver Smoked Fish Company, 81 NLRB 622; Peter Pan Bus Lines, 82 NLRB 830. 14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD such as William A. Donald, son of the executive vice president, Walter J. Hodgkins II, son of the president, and Russell Larson, brother of the vice president. We find that all production, maintenance, distribution, construction,. and transmission employees of the Lake Superior District Power. Company, including auto repair foreman, service foreman, first-class, lineman, assistant foremen, and. painters, but excluding office and cleri cal, technical, professional, and managerial employees, street light. tenders-switching men, brushers and brush burners, station techni- cian, draftsmen-engineers, transitman-draftsman, buyers of rights- ,of-way, guards,"' close relatives of executives,20 line foremen, con- struction foremen, construction superintendent, gas foreman, chief' operators, chief engineers, service supervisor, Diesel plant foremen,. meter superintendent, meter department foremen, and all other su- pervisors as defined in the Act, constitute a unit appropriate for.the purposes of collective bargaining within the meaning of Section 9. (b) of the Act. . DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with the Employer, 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 Region in which this case was heard, and subject to Sections 203.61 and 203.62 of National Labor Relations Board Rules and Regulations, among the employees. in the unit found appropriate in paragraph numbered 4, above, who. were employed during the pay-roll period immediately preceding the date of this Direction of Election,21 including employees who did not work during said pay-roll period because they were ill or on vaca- tion or temporarily laid off, but excluding those employees who have. 19 No evidence was presented at the hearing to indicate the portion of working time spent by night watchmen , who are also laborers, janitors , boiler room tenders, and car washers and greasers, in night watchman duties . If more than 50 percent of their working time is spent in night watchmen duties, they shall, in accordance with our usual practice, be excluded from the appropriate unit as guards. See Sampsel Time Control, Inc., 8& NLRB 1250. The record indicates that an employee designated as a line patrolman, patrols the trans- mission lines of the Employer . As no evidence was presented at the hearing as to whether line patrolmen are required to protect property of the employer or the safety of persons upon the premises of the Employer , we find that there is no basis for determining whether they are guards within the meaning of the Act. We shall, however , allow line patrolmen to cast challenged ballots in the election hereinafter directed. 20 William A. Donald, Walter J. Hodgkins II, and Russell Larson are excluded under this category. 21 The Petitioner urged that the pay-roll eligibility date should be one prior to the date of the first hearing so as to make ineligible to vote, all employees hired after the first hearing . As no persuasive reason for thus departing from our usual procedure was pre- sented, the motion is hereby denied. LAKE SUPERIOR DISTRICT POWER COMPANY 15 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 reinstatement, to deter- mine whether or not they desire to be represented, for purposes of collective bargaining, by Local No. 276, International Brotherhood of Electrical Workers, AFL..