The Ohio Public Service Co.

0 In the Matter of THE OHIO PUBLIC SERVICE COMPANY, EMPLOYER and LOCAL UNION 878, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR, PETITIONER In the Matter of THE OHIO PUBLIC SERVICE COMPANY, EMPLOYER and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR, PETITIONER Cases Nos. 8-R-2181 and 8-R-2397,. respectively-Decided October 3, 1.946 Mr. William Patrick Clyne, of Cleveland, Ohio, and Mr. Henry H. Hoppe, of Warren, Ohio, for the Employer.. Messrs. Arnold Edelman and Ralph Jamieson, both of Cleveland, Ohio, for the Engineers. Mr. J. S. Knight, of Cincinnati, Ohio, for the IBEW. Messrs.. Morton Barrisch, Sam Sponseller, William Munger, and Clem Lewis, all of Cleveland, Ohio, for the CIO. Mr. Sydney S. Asher, Jr., of counsel to the Board. SUPPLEMENTAL DECISION AND SECOND DIRECTION OF ELECTIONS STATEMENT OF THE CASE On August 1, 1946, the National Labor Relations Board issued a Decision, Order, and Direction of Elections in Case No. 8-R-2181,1 directing elections among employees of the production department. In the Decision, the Board stated : The Amended petition requests a unit composed of production employees only ... at no time has any party filed a petition seek- ing an election among the distribution employees. Consequently, we do not deem it necessary to decide at this time whether or not a system-wide unit of all of the Employer's distribution em- ployees would constitute an appropriate unit. However, there is ample evidence in the present record from which such a de- termination could be made. Therefore, if any party shall, within 1 69 N. L. R B. 1089. 71 N. L. It. B., No. 24. 184 THE OHIO PUBLIC SERVICE COMPANY 185 five (5) days from the date of the issuance of this Decision, Order, and Direction of Elections, file a petition requesting an election among the Employer's distribution employees, we shall, if re- quested, order such petition consolidated with the present peti- tion and shall, if necessary, amend our Decision, Order, and Direc- tion of Elections herein accordingly. On August 5,1946, the IBEW filed a petition in Case No. 8-R-2327, requesting an election among the employees of the distribution de- partment. Subsequently, the IBEW moved to consolidate Cases Nos. 8-R-2181 and 8-R-2327. Thereafter, the Employer filed a motion for review and reconsideration of the Decision.2 On August 21, 1946, the Board granted the IBEW's motion for consolidation, ordered the record reopened for the purpose of taking additional testimony with respect to employees of the Marion Division and postponed the elec- tions until such time as the Board should direct. Accordingly, a supplemental hearing on the consolidated cases was held at Cleveland, Ohio, on August 23, 1946, before Richard C. Swander, hearing officer. The hearing officer's rulings made at the hearing are free from prejudi- cial error and are hereby affirmed. Upon the entire record in the consolidated cases, the Board makes the following : SUPPLEMENTAL FINDINGS OP FACT A. The questions concerning representation In 1942 the Marion Reserve Power Company, herein referred to as Marion Reserve, was a utility corporation unconnected with the Employer. Its operations were divided into two geographical seg- ments, known as the Eastern and Western Divisions. The easternmost part of the Eastern Division covered territory also served by facilities of the Employer. Local Union B-638 of the IBEW began to bargain with Marion Reserve in 1942 on behalf of its members in the Eastern Division. At that time, the bargaining was limited to distribution employees. On November 8, 1944, pursuant to a Decision and Direc- tion of Election,8 the Board certified Local Union B-638 of the IBEW as the exclusive bargaining agent for all production and distribution employees in the Eastern Division of Marion Reserve. On June 25, 1945, Local Union B-638 of the IBEW signed a collective bargaining contract with Marion Reserve with respect to the employees described ' The Employer complains of our ruling with respect to employees of the warren Division but submits no arguments not previously considered. After due deliberation, we are unable to find any compelling reason to depart from our previous conclusions. The Employer's motion for reconsideration and review is therefore denied for reasons stated in our Decision Issued August 1, 1946. ' Matter of The Marion Reserve Power Company, 57 N. L. R. B. 353 and 57 N. L. R B 1292. 186 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above. The contract provided, inter alia, that it should remain in ef- fect until September 30, 1946, and thereafter from year to year unless written notice of termination should be given by either party on or before June 1 of any calendar year. On May 30, 1946, Local Union B-638 of the IBEW wrote a letter to the president of Marion Reserve stating that it desired "to negotiate provisions for a new agreement." 4 Meanwhile, the Employer had acquired all the common stock of Mar- ion Reserve and had disposed of the Western Division to another utility company. Subsequent to the original hearing in Case No. 8- R-2181, the Employer merged the Eastern Division of Marion Reserve into its organization and procured the dissolution of Marion Reserve as a separate corporation. The bulk of the production and distribu- tion facilities of Marion Reserve now comprise the Employer's Marion Division. At the reopened hearing, the Petitioner in Case No. 8-R-2181, herein referred to as the Engineers,5 moved to amend its petition in that case to include therein production employees of the Marion Division.'- The employer took a position in favor of this amendment. The IBEW and the CIO opposed the amendment on the grounds, inter alia, that the contract between Local Union B-638 of the IBEW and Marion Reserve was binding on the Employer as successor to Marion Reserve and that it constituted a bar to an election among employees of the Marion Division. We deem it unnecessary at this time to decide whether or not `the contract was binding on the Employer as the suc- cessor to Marion Reserve. It is sufficient to point out that the letter written by Local Union B-638 of the IBEW to Marion Reserve on May 30, 1946, had the effect of terminating the agreement on Septem- ber 30,1946 .7 Since the contract has expired, we find that it is not a bar to a present determination of representative at the Marion Division. The CIO further opposes the Engineers' amendment to its petition on the grounds that the inclusion of the production employees of the Marion Division was originally requested by the Employer and is, therefore, tantamount to an Employer petition for investigation and certification of representatives, that the Engineers was guilty of laches in not requesting the amendment sooner, and that the CIO has not had sufficient time to engage in organizational activities among these employees. We deem these contentions to be without merit. The argument that the Employer had, in effect, petitioned for the inclusion ' This letter was sent after the close of the original hearing in Case No. 8-R-2181, but prior to the issuance of the Decision in that case. 5 Referred to in our previous Decision in Case No . 8-R-2181 as "the Petitioner " 6 All the production employees of the Marion Division work in the Scioto power plant. 7 Matter of Condenser Service and Engineering Co., Inc ., Scranton Pump Division, 63 N. L. R. B. 833. THE OHIO PUBLIC SERVICE COMPANY 187 of production employees of the Marion Division is now moot since the Engineers has petitioned for their inclusion. The Engineers cannot be held to be guilty of lathes, inasmuch as the Marion Division was not part of the Employer's system at the time when the previous hear- ing was held in Case No. 8-R-2181. Finally, it is the unit considera- tions to which we must look, rather than the amount of time the competing unions may have had in which to carry on their organizing activities. We are of the opinion that the hearing officer did not err in permitting the Engineers to amend its petition. We find that questions affecting commerce have arisen concerning the representation of employees of the Employer, within the meaning of Section 9 (c) and Section 2 (6) and (7) of the Act. B. The appropriate unit; the determination of representatives 1. Distribution employees In our previous decision in Case No. 8-R-2181, we stated that the appropriate unit for production department employees should be system-wide,in scope subject to the right of production employees in the Warren Division, where collective bargaining for both production and distribution employees had existed on a divisional basis for a num- ber of years, to determine for themselves whether they should be in- cluded in a system-wide unit or in a separate divisional unit. We deferred ruling on the appropriate unit or units for distribution em- ployees pending the filing of a petition, which has now been done, seeking to represent such employees. We believe that all the unit considerations applied to the production department employees are equally applicable to the distribution department employees. Accord- ingly, we shall establish for distribution employees voting groups paralleling those already set up for production employees and we shall defer any unit findings pending the outcome of the elections directed hereinafter. 2. Marion Division employees The Engineers and the Employer desire to have the employees in the Marion Division included in the system-wide units, whereas the CIO and the IBEW contend that they should be excluded. Upon absorbing the physical properties of Marion Reserve, the Employer transferred the employees of Marion Reserve, to its own pay roll and organized the Marion Division to include the former power and distribution facilities of Marion Reserve. The Scioto power plant of the Marion Division is now in the process of being interconnected with other power plants of the Employer's utility system, a task which 188 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is expected to be completed by September 1, 1947; the distribution facilities of Marion Reserve have already been integrated into the Employer's distribution system . Wages, hours, working conditions, supervision and all other conditions of work are the same for Marion Division employees as for employees working in other divisions of the Employer. In short, the Marion Division is simply another division in the Employer's utility system . These factors indicate the desirability of including the Marion Division employees in the same units with other comparable employees in the system . However, pro- 'duction and distribution employees in the Marion Division have a history of collective bargaining on a divisional basis . This history indicates, as it did in the case of the Warren Division employees, that the Marion Division employees might also constitute a separate unit. Under these circumstances , we shall make no unit determinations with respect to the Marion Division employees at the present time, but shall be guided , in part, by the desires of these employees as expressed in the elections directed hereinafter . As in the case of the Warren Division employees , we shall establish two voting groups for Marion Division employees ; one voting group will comprise distri- bution employees and the other production employees. 3. Specific disputed work categories The CIO seeks to exclude line gang foremen from the distribution unit, the IBEW desires the inclusion of these employees and the Em- ployer and the Engineers are apparently neutral. These employees supervise line gangs , normally consisting of two or three line men, a ground man, and a driver. Their immediate superiors are line fore- men. The crews which they supervise do construction , maintenance, and repair work. The line gang foreman issues orders to the men and may refuse to work with a man who is unsatisfactory to the crew. When one of his crew becomes unsatisfactory , he reports the man to the superintendent who authorizes an investigation of the facts. At the termination of the investigation , the superintendent will transfer the man if such action is warranted . Although the line gang foreman possesses no authority to hire or to discharge , his refusal to work with a man on the crew is, in effect, a recommendation of transfer and such recommendation is accorded considerable weight. We find that line gang foremen possess authority effectively to recommend the transfer of employees working under their supervision and that they are, there- fore, supervisory employees within our usual definition . Accordingly, we shall exclude them from the voting groups of distribution em- ployees. THE OHIO PUBLIC SERVICE COMPANY 189 The Employer, the IBEW, and the CIO agree that system opera- tors s should be excluded from the distribution unit. In accordance with the desires of the parties, we shall exclude them. 4. Conclusions We shall direct that separate elections by secret ballot be held among the employees of the Employer within each of the voting groups listed below who were employed during the pay-roll period immediately preceding the Second Direction of Elections, subject to the limitations and additions set forth in the Direction. Our determination of an appropriate unit or units, if any, will depend, in part, upon the re- sults of such election. There shall be excluded from each of said voting groups, in addition to those employees specifically excluded, clerical employees, results engineers and other technical employees, 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. The respective voting groups shall be: 1. All employees of the Employer employed at its Lake Park, Edge- water, Melco, and R. E. Burger power plants, including probationary employees, assistant foremen of the yard, assistant foremen main- tenance, and assistant foremen boiler room, but excluding shift engi- neers. 2. All employees of the Employer employed at its Mahoninside power plant, including probationary employees, assistant foremen of the yard, assistant foremen maintenance, and assistant foremen boiler room, but excluding shift engineers. 3. All employees of the Employer employed at its Scioto power plant,9 including probationary employees, assistant foremen of the yard, assistant foremen maintenance, and assistant foremen boiler room, but excluding shift engineers. 4. All employees of the Employer's distribution department, in- cluding probationary employees, but excluding line gang foremen, system operators, and all employees employed at the Warren and Marion Divisions. 5. All employees of the Employer's distribution department em- ployed at its Warren Division, including probationary employees, but excluding line gang foremen and system operators. 8 These employees are located at a central point in the system. They determine in advance the energy that will be required at all locations and see to it that lines are in service in sufficient number to carry that amount of energy to those locations. 9 As pointed out above, employees of the Scioto power plant constitute the production department of the Marion Division. 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. All employees of the Employer's distribution department em- ployed at its Marion Division, including probationary employees, but excluding line gang foremen and system operators. In accordance with the agreement of the parties, we shall direct that former employees of Marion Reserve who, since the acquisition of Marion Reserve by the Employer, have been transferred to other divi- sions of the Employer, shall vote in the divisions to which they are as- signed at the date directed for determination of eligibility to vote. In accordance with the desires of the parties, we shall direct that the name of the Engineers shall appear on all ballots in the production de- partment voting groups, that the name of the IBEW shall appear on all ballots in the distribution department voting groups and upon the ballot for the production employees of the Marion Division, and that the name of the CIO shall appear upon all ballots. SECOND DIRECTION OF ELECTIONS As part of the investigation to ascertain representatives for the pur- poses of collective bargaining with The Ohio Public Service Company, Cleveland, Ohio, elections by secret ballot shall be conducted as early as possible, but not later than thirty (30) days from the date of this Second Direction, under the direction and supervision of the Regional Director for the Eighth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Sections 203.55 and 203.56, of National Labor Relations Board Rules and Regulations, Series 4, among the employees in the voting groups described above, who were employed during the pay-roll period immediately preceding the date of this Second Direction, including employees who did not work during said pay-roll period because they were ill or on vacation 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 discharged for cause and have not been rehired or reinstated prior to the date of the elections, to determine in voting groups 1 and 2 whether they desire to be represented by Local Union 878, International Union of Operating Engineers, affiliated with the American Federation of Labor, or by Utility Workers Union of America, affiliated with the CIO, for the purposes of collective bargaining, or by neither; in voting group 3, whether they desire to be represented by Local Union 878, International Union of Operating Engineers, affiliated with the American Federation of Labor, or by Utility Workers Union of America, affiliated with the CIO, or by International Brotherhood of Electrical Workers, affiliated with the American Federation of Labor, for the purposes of collective bargaining, or by none of them; in voting groups 4, 5, and 6, to deter- THE OHIO PUBLIC SERVICE COMPANY 191 mine whether they desire to be represented by International Brother- hood of Electrical Workers, affiliated with the American Federation of Labor, or by Utility Workers Union of America, affiliated with the CIO, for the purposes of collective bargaining, or by neither. MR. JAMES J. REYNOLDS, JR., took no part in the consideration of the above Stipplemental Decision and Second Direction of Elections. 717724-47 -v,); 1J ---14