Milwaukee Gas Light Co.

In the Matter of MILWAUKEE GAS LIGHT CO., EMPLOYER and LOCAL 246, UNITED GAS, CORE AND CHEMICAL WORKERS OF AMERICA, C. 1. 0., PETITIONER Case No. 13-R-3037.-Decided August 30,1946 Miller, Mack & Fairchild, by Mr. Vernon A. Swanson, of Milwaukee, Wis., for the Employer. Messrs. Chester Walczak and Karl R. Ebert, Sr., both of Milwaukee, Wis., for the Petitioner. Messrs. B. M. Feinberg and Adolph R. Gull, both of Milwaukee, Wis., for the Association. Mr. Sydney S. Asher, Jr., of counsel to the Board. DECISION AND DIRECTION OF ELECTION Upon an amended petition duly filed, hearing in this case was held at Milwaukee, Wisconsin, on June 5 and 6, 1946, before Leon A. Rosell, Trial Examiner. The Trial Examiner's rulings made at the hearing are free from prejudicial error and are hereby affirmed. At the hearing the Employer moved to dismiss the petition. For reasons stated in Sections III and IV, below, the motion is hereby denied. Following the hearing all ,parties were granted until July 1, 1946, for the filing of briefs. The Association filed its brief on June 26, 1946, the Employer on July 1, 1946, and the Petitioner on July 8, 1946. Subsequently, the Association moved that the Board strike the Peti- tioner's brief from the record, on the ground that it was not filed within the time allotted. The Petitioner's brief was received before we had had the opportunity to consider and rule on the issues here presented. Thus no delay was actually caused by reason of its tardy filing. In view of this fact, we hereby deny the Association's motion to strike the brief from the record. Upon the entire record in the case, the National Labor Relations Board makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE EMPLOYER The Employer is a Wisconsin corporation engaged in the manufac- ture, sale and distribution of manufactured gas and byproducts, such as tar. It maintains a general office and plant at Milwaukee, Wis- 70 N. L. R. B., No. 79. 1024 MILWAUKEE GAS LIGHT CO. 1025 consin, and has additional operating facilities in that State. In the calendar year 1945, the Employer purchased raw materials valued at approximately $2,000,000, approximately $400,000 of which was pur- chased from points outside the State of Wisconsin. During the same period, the Employer's sales of gas and appliances amounted to ap- proximately $7,000,000, all of which were made within the State of Wisconsin. Included in the sales of gas were sales valued at approxi- mately $1,000,000 to virtually all of the industrial establishments in the metropolitan Milwaukee area . An interruption of the gas supply would, in all instances, seriously impede the operations of industry and, in many cases, would soon compel its shut-down. In addition, the Employer sold and shipped to points outside the State of Wisconsin tar valued at approximately $15,000. The Employer admits and we find that it is engaged in commerce within the meaning of the National Labor Relations Act. H. THE ORGANIZATIONS INVOLVED The Petitioner is a labor organization affiliated with the Congress of Industrial Organizations, claiming to represent employees of the Employer. United Association of Office, Sales & Technical Employees, Local #1, herein called the Association, is an unaffiliated labor organization claiming to represent certain rank and file employees of the Employer.' III. THE QUESTION CONCERNING REPRESENTATION The Employer refuses to recognize the Petitioner as the exclusive bargaining representative of certain supervisory employees of the Employer until the Petitioner has been certified by the Board in an appropriate unit. The Employer contends thatothe petition should be dismisses on tit- grounds that supervisory employees are not "employees" 'within the meaning of the Act, and that therefore no question with respect *r the- representation of employees exists. We have previously 'deter= mined that supervisory employees are "employees" within the mean- ing of the Act 2 Therefore, the Employer's contention is without merit. We find that a question affecting commerce has arisen concerning the representation of employees of the Employer', within the meanie w of Section 9 ('c) and Section 2 (6) and (7).of the Act. ' The Association does not claim to represent supervisory employees of the Employer, but has intervened solely for the purpose of stating its position with respect to the appro- priate unit. i Matter of Packard Motor Car Company, 61 N. L. it. B. 4; Matter of Packard Motor Car Company, 64 N. L. R B 1212 , enf'd 157 F . ( 2d) 80 (C C. A. 6), decided August 12, 1946, 18 LRR 2268 ; Matter of L. A. Young Spring & Wire Corporation, 65 N. L . R. B. 298. 1026 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Iv. THE APPROPRIATE UNIT The Petitioner seeks a unit composed of all supervisory employees in the Employer's Meter Shop, Service Shop, Third Ward Works, Street Department, West Works, and Industrial and Commercial De- partment, except for those employees "who have a right to hire and fire." At the hearing, the Petitioner contended that all supervisors with the rank of Assistant Superintendent or above should be ex- cluded from the appropriate unit, as they possess the authority to hire and discharge. The Association agrees in the main that the unit sought by the Petitioner is appropriate, but would exclude industrial service men and dispatchers. The Employer contends that'all of its supervisory employees possess the power to hire and discharge or effectively to recommend such action, and that therefore the petition should be dismissed because there are no supervisory personnel in its employ who are within the scope of the unit, as defined by the Petitioner. In making this contention the Employer fails to dis- tinguish clearly between the right to hire and discharge and the right merely effectively to recommend hiring and discharging. The record, contains some indication that, although all of the Employer's super- visors possess the power effectively to recommend hiring and dis- charging, those with the rank of Assistant Superintendent and above are virtually the only ones who, without consulting their own super- visors, actually hire and discharge. We do not think that it is neces- sary for us to determine which supervisors possess the power to hire and discharge, but deem it sufficient to point out that the Petitioner, in effect, seeks a unit consisting of supervisors below the rank of Assist- ant Superintendent. In view of the above, we are of the opinion that the contention of the Employer is without merit. We therefore deny its motion to dismiss the petition. There has apparently been no past bargaining on behalf of the Employer's supervisors. However, the Employer's rank and file em- ployees in its Meter Shops, Third Ward Works, Street Department, West Works, and Meter Reading Department have been held by the Board to constitute an appropriate unit.3 The parent union with which the Petitioner is affiliated was certified as the bargaining agent for those employees 4 and has had contractual relations with the Em- ployer on their behalf. At least one of the contracts between the parent union and the Employer covered not only the rank and Me employees in the unit established by the Board, but also non-super- visory employees of the Service Shop. Moreover, the Association has bargained with the Employer on behalf of a unit of non-supervisory office, sales, professional, technical, cafeteria and building main- tenance employees (including industrial servicemen of the Industrial Matter of Milwaukee Gas Light ConiPdny, 50 N. L R B. 809. + Matter of Milwaukee Gas bight Comr.any, 52 N. L R. B 1213. MILWAUKEE GAS LIGHT Co. 1027 and Commercial Department) 5 established by the Wisconsin Labor Relations Board. In the absence of bargaining history and accepted unit patterns, the pattern of organization for supervisory employees should gen- erally follow the patterns sanctioned by the Board for rank and file employees.6 When the unit sought by the Petitioner is compared with the established production and maintenance rank and file unit, it is found that the Petitioner is seeking to exclude from the appropriate unit supervisors in the Meter Reading Department, although rank and file employees of this department are included in the non-super- visory unit previously set tip by the Board. Moreover, the Peti- tioner seeks to include in the supervisory unit industrial servicemen in the Industrial and Commercial Department, whereas rank and file employees in that department are not'included in the non-supervisory unit. No reasons have been presented indicating why the supervisory unit should deviate front the pattern set up in the non-supervisory unit in this case. In order to conform the pattern of the supervisory unit here involved to that of the existing rank and file unit, we shall exclude from the supervisory unit employees in the Industrial and Commercial Department but will include therein supervisors in the Meter Reading Department. The Petitioner desires to include supervisors of the Service Shop. As pointed out above, rank and file employees of the Service Shop were not included in the non-supervisory unit previously established by the Board. However, inasmuch as these employees were included among the non-supervisory employees covered by the contract, and since they perform functions similar to those performed by other production and maintenance employees, we shall include supervisors of the Service Shop in the supervisory unit, as requested by the Petitioner. The Petitioner wishes to include, and the Association to exclude, dis- patchers who are employed in the Service Shop. Dispatchers spend most of their time in the Employer's offices and are in constant tele- phone contact with certain supervisors and their crews. The dis- patchers tabulate records, receive telephone calls, make out damage and accident reports, and issue telephone orders and instructions to crews in the field. Whenever crews complete an assignment, they tele- phone to the dispatcher who will then direct the crews to other jobs. They do not supervise the quality of work of the crews nor come into actual contact with the crews except through telephone conversations. They were excluded from the rank and file unit by stipulation of the parties in the prior case referred to above. We are of the opinion that dispatchers do not have duties, interests, authority or responsibilities similar to those possessed by the other employees here concerned, and we therefore shall not include them in the appropriate unit. 5 The contracts covering rank and file employees described herein disclose on their faces that they expired prior to the hearing, unless they were automatically renewed. The rec- ord does not reveal whether or not they have been renewed. 6 Matter of Westinghouse Elect, is Con ponatwu (East Springfield 1Yorke), 66 N L R B 1297. 712344-47-vol 70-66 1028 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Petitioner seeks the inclusion, and the Association the exclusion, of industrial servicemen, employees in the Industrial and Commercial Department. As previously noted, they were among employees bar- gained for by the Association in accordance with an order of the Wis- consin Labor Relations Board. Since, as indicated above, we have de- termined not to include employees of the Industrial and Commercial Department in the appropriate unit, we shall exclude industrial serv- icemen therefrom. All parties have agreed upon the exclusion of rural agent Harry L. Rossmiller. He is in effect the Employer's manager in a rural area and he renders service to the customers,in that area. He receives com- plaints, effects minor repairs, does sales work, and acts as contact man between the Employer and various civic authorities. If installations are made in his area by Service Shop employees, he supervises and inspects their work. In accordance with the desires of the parties, we shall exclude him from the appropriate unit. The remaining supervisory employees concerned herein consist of general foremen, main gang foremen, red order- foremen,T and the in- spector in the Street Department ; supervisors, inspectors and the storekeeper in the Service Shop; foremen in the Meter Shops; yard foremen in the Third Ward Works; the chief power plant.engineer, the •assistant chief power plant engineer, yard foremen and automotive garage foremen in the West Works; and the supervisor in the Meter Reading Department. In view of all the facts, we are of the opinion that the above-named employees are supervisors with similar interests, duties, authority, and responsibility. We find that all supervisory employees of the Employer below the rank of Assistant Superintendent employed in the Service Shop, Meter Shops, Third Ward Works, Street Department, West Works and Meter Reading Department, including general foremen, main gang foremen, red order foremen, automotive garage foremen, yard foremen, super- visors, chief power plant engineers, assistant chief power plant en- gineers, storekeepers, and inspectors, but excluding industrial service men, dispatchers, the rural agent,' and employees of the Industrial and Commercial Department constitute a unit appropriate for the pur- poses of collective bargaining within the meaning of Section 9 (b) of the Act. V. THE DETERMINATION OF REPRESENTATIVES We shall direct that the question concerning representation which has arisen be resolved by an election by secret ballot, subject to,the limitations and additions set forth in the Direction. The duties and functions of red order foremen were discussed 'in detail in Matter of Milwaukee Gas Light Company, 52 N. L . R. B. 1213, in which the Board excluded them from the rank and file unit as supervisory employees. 8 Harry L. Rossmiller. MILWAUKEE GAS LIGHT CO. 1029 The Employer argues that the Board is precluded from certifying the Petitioner as exclusive representative of the employees here in- volved, inasmuch as another local of the same parent union is presently representing rank and file employees of the Employer. It points out that the same Regional Director of the parent union would represent both locals in connection with contract negotiations and other matters, and that both local unions use and have access to the same business office. With this contention we do not agree. Where two locals are affiliated with the same parent union, there is no impropriety in per- mitting one of them to represent supervisory employees while the other simultaneously represents rank and file employees of the same employer." At the hearing, the Association indicated that it did not desire to appear on the'ballot. Accordingly, we shall direct that the Associa- tion's name be omitted from the ballot. DIRECTION OF ELECTION As part of the investigation to ascertain representatives for the purposes of collective bargaining with Milwaukee Gas Light Co., Mil- ivaukee, Wisconsin, 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 supervision of the Regional Director for the Thirteenth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Sec- tions 10 and 11, of National Labor Relations Board Rules and Regula- tions-Series 3, as amended, 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, includ- ing employees who did not work during said pay-roll period because they were ill or on vacation or temporarily laid off, and including em- ployees in the armed forces of the United States who present them- selves in person at the polls, but excluding 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, to determine whether or not they desire to be represented by Local 246, United Gas, Coke and Chemical Workers of America, C. I. 0., for the purposes of collective bargaining. MR. JAMES J. REYNOLDS, JR.-, took no part in the consideration of the above Decision and Direction of Election. a Matter of Jones d Laughlin Steel Corporation, Vesta-Shannopin, Coal Division, 66 N. L. R. B 386; Matter of Curtis Bay Towing Company of Pennsylvania, 66 N. L. R. B. 1152; Matter of Consolidated, Steel Corporation, 69 N. L. R. B. 805.