Indianapolis Power & Light Co.

In the Matter of INDIANAPOLIS PowER & LIGHT COMPANY and UNITED MINE WORKERS OF AMERICA , DISTRICT 50 (UTILITIES DIVISION) Case No. B-5454.-Decided July 23, 1943 Messrs. Arthur L. Gilliom and Karl J. Stipher, of Indianapolis,' Ind., for the Company. Mr. Stanley E. Stohr, of Terre Haute, Ind., and Mr. Joe B. Board, of Indianapolis, Ind., for District 50.- Mr.' Carl Wilde, of Indianapolis, Ind., for the Association. Mr. Wallace E. Royster, of counsel to the Board. DECISION AND DIRECTION OF ELECTION STATEMENT OF THE CASE Upon a petition duly filed by United Mine Workers of America, District 50 (Utilities Division), herein called District 50, alleging that a question affecting commerce had arisen concerning the repre- sentation of employees of Indianapolis Power & Light Company, Indianapolis, Indiana, herein called the Company, the National Labor Relations Board provided for an appropriate hearing upon due notice before Robert E. Malarney, Trial Examiner. Said hear- ing was held at Indianapolis, Indiana, on May 6, 7, 27, 28, and 29, 1943. Prior to the hearing the Regional Director granted a motion to intervene filed by I. P. & L. Employees Protective Association, herein called the Association. Also prior to the hearing, the Regional Director denied a motion of the Company to dismiss the petition. The Company, District 50, and the Association appeared, partici- pated, and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the beginning and the conclusion of the hearing the Company moved to dismiss the petition. The motion is hereby de- nied. 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. The Com- pany and the Association requested a hearing before the Board for 51 N. L. R. B., No. 113. 670 INDIANAPOLIS POWER & LIGHT COMPANY 671 the purpose of oral argument. Since all issues in dispute are amply discussed in the briefs, the request is denied. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Indianapolis Power & Light Company is a public utility com- pany incorporated in Indiana with plants and offices in Indianapolis, Indiana, where it is engaged in the production and distribution of electrical energy and steam. The operations of the Company are conducted in several buildings-chief among them being the main administration building and the four power plants known as Hard- ing Street, Hill Street, Perry K, and Perry W. The Company denies that it is engaged in interstate commerce but concedes that its operations affect commerce. Since the operations of the Company cause the transport of large quantities of coal in interstate com- merce, and since interstate carriers and companies engaged in the transmission of interstate communications depend entirely upon the Company for electrical energy to continue their operations, we find the Company to be engaged in commerce within the meaning of the National Labor Relations Act." II. THE ORGANIZATIONS INVOLVED United Mine Workers of America, District 50 (Utilities Divi- sion), is a labor organization admitting to membership employees of the Company. I. P. & L. Employees Protective Association is an unaffiliated labor organization, admitting to membership employees of the Company. M. THE QUESTION CONCERNING REPRESENTATION Since 1937 the Association has bargained on behalf of the Com- pany's employees and has been recognized by the Company as their exclusive bargaining representative. During this period, the Asso- ciation and the Company have been parties to collective bargaining contracts the last of which was effective June 6, 1942, to run to June 16, 1943, and thereafter from year to year, subject to termination by either party by notice given 60 days prior to an anniversary date. Neither party has served such notice and both consider the contract presently to be renewed for another term. On March 26, 1943, how- i See Indianapolis Power & Light Company v. N L. R. B., 122 F. (2d) 757, dated September 15, 1941 (modified opinion superseding opinion filed May 14, 1941) modifying and enforcing as modified 25 N. L R. B. 193; certiorari denied, 315 U. S. 804. 672 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ever, District 50 requested recognition as the exclusive bargaining representative of certain of the Company's employees. The Com- pany refused the request, alleging that the contract with the Asso- ciation precludes it from according such recognition, and denying that the unit claimed by District 50 is appropriate. Both the Com- pany and the Association assert the contract as a bar to this pro- ceeding and cite our Decision in the Mill B case 2 in support of their position. The doctrine therein adopted by the Board is patently inapplicable to the present proceeding. As stated above, the claim of District 50 was formally made to the Company more than 60 days before the contract renewal date. Since the claim was timely, the contentions of the Company and the Association are without merit and we find the contract not to constitute a bar to a present investigation of representatives. A statement of the Field Examiner introduced into evidence at the hearing and a statement of the Trial Examiner made at the hearing, indicate that District 50 represents a substantial number of employees in the unit it claims appropriates 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. IV. THE APPROPRIATE UNIT Since 1937 employees of the Company have been represented by the Association in a company-wide unit embracing substantially tall non- supervisory, employees in all categories. The Company and the Association contend that the all-inclusive unit has been established by custom and usage as appropriate for the purposes of collective bargaining and that the Board cannot, at this time, consistently with its established policies, find appropriate the smaller unit, compris- ing, essentially, production employees, which District 50 requests. It appears from the record that the unit covered by the contract, and for which the Company and, the Association contend, includes ap- proximately 1,000 employees, widely divergent in skills, wages, and interests. Among them are plant-protection employees, stenogra- phers, technicians, laborers, salesmen, bookkeepers, and linemen. 2 Matter of Mill B. Inc., division of Irwin & Lyons, partners, doing business under the assumed name of Irwin & Lyons, 40 N. L. R B. 346 ' The Field Examiner stated that District 50 submitted 245 membership authorization cards, all bearing apparently genuine, original signatures. One hundred and ninety=nine cards bore the names of persons whose names appear on the Company 's pay roll of April 13, 1943. There are approximately' 536 employees in the appropriate unit. At the hearing, District 50 submitted 26 additional cards to the Trial Examiner. All bore apparently genuine, original signatures and the names of persons whose names appear on the Company's pay roll of April 13, 1943. The Association relies upon its contract to establish its interest. INDIANAPOLIS POWEIR & LIGHT COMPANY 673 The Company urges that our Decision in the Gulf States Utilities Company case is determinative of the issues herein 4 In that case a labor organization represented all employees of the Company in Louisiana and Texas in a company-wide unit. The petitioner sought a unit embracing a segment of the employees in certain categories working in the State of Louisiana. The Board found the unit sought to be inappropriate in that the operations of the Company were highly integrated and the interests of the employees were not circumscribed by political boundaries. Since the petitioner in that case did not request a company-wide unit in the categories it wished to represent, the analogy fails. While the history of collective bar- gaining is entitled to weight in making a determination of the unit, we do not agree that countervailing factors may not determine that a unit different from the one so established, will better effectuate the purposes and policies of the Act.b The issue is clearly drawn. The Company and the Association desire a unit embracing essentially all non-supervisory employees of the Company. District 50 seeks a unit composed of those employees directly engaged in the production and distribution of electrical energy and steam, excluding office and cler- ical employees, technical employees, plant-protection employees and those employees with the authority to hire, discharge, or recommend such action. The collective bargaining between the Company and the Associa- tion from its inception has covered the unit for which both now con- tend. At best this unit has included two disparate groups, i. e., production employees and clericals, which the Board ordinarily sepa- rates.6 The difference in the type of work performed by these two groups, the traditional divergence in their social outlook, and the essential dissimilarity in skills and function, are compelling reasons for the separation of the clerical euployees from those engaged in production work. Further, it appears that there is a third classifica- tion of employees, i. e., technical employees, which we have generally set apart.? Many of the men employed in technical positions are college graduates whose economic interests and employment rela- tions are on a different plane from those of the production or clerical employees. District 50 requests the exclusion of both clerical and technical employees and in this respect, as found in Section III, 4Matter of Gulf States Utilities Company, 31 N. L. R. B . 740. The Company also quotes from the Fourth Annual - Report of the Board , pp. 89-91. The section referred to relates to disputes as to company-wide and plant-wide units. No such situation here confronts us. 5 See Matter of El Paso Electric Company, 5 N. L. R. B. 56. See also Matter of Boston Edison Company, 51 N L . R. B. 118. 'See Matter of Pacific Gas & Electric Company, 3 N. L. It. B. 835, and subsequent deci- sions of the Board. 7 See Matter of Boston Edison Company, supra. See also Matter of The Permanente Metals CorporatiOn, 45 N. L. It. B. 931. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above, apparently reflects the desires of a substantial number of em- ployees in the production and distribution services. It is argued by the Company and the Association that the community of interest found among workers having the same employer is accentuated, in the case of a public utility whose operations are closely integrated. How- ever, it is generally conceded that the interest of the worker is cen- tered primarily in those working along with him performing duties of a closely allied nature. As the divergence in work extends, the community of interest decreases. We are not persuaded that the interests of office employees and technical employees are identical or even closely akin to those of production and distribution employees. Generally speaking, the nature of their duties is strikingly dissimilar; their working conditions are unlike; and their aims and -ambitions flow along different channels. We do not agree that the long history of collective bargaining in a single inclusive unit has necessarily had the effect of lessening these dissimilarities or of channelizing the divergent interests. The Company alleges that it follows a policy of transferring employees among the various categories as the exi- gencies of its operations may require. An examination of such trans- fers reveals that they are made almost exclusively from one clerical, technical, or mechanical category to another and in no way serve to indicate that all the employees form a homogeneous group. Further- more, it is not certain that the all-inclusive unit resulted from a con- sidered decision of the employees. Although the Association asserts that a large majority of the Company's employees are its members, the employees have not had opportunity to express their desires in this respect in an election by secret ballot. We shall extend this oppor- tunity to those for whom it has been requested and shall find that production, distribution, and maintenance employees alone consti- tute an appropriate unit. We shall list in the Appendix hereto, the categories of employees which all parties agree may be included in an appropriate bargaining unit and shall discuss separately in subsections A and B, below, those categories as to which the parties are in disagreement. As stated elsewhere in this decision the Company and the Association urge the inclusion of all nonsupervisory employees and this position is taken as to the categories listed below. A. We shall include in the unit, although District 50 opposes such inclusions : The six load dispatchers. They have attained their position by skill and experience. Since their function is to determine the amount of electrical energy permitted to flow through the various lines and the sequence of turbine operation, they are directly concerned in the distribution of electrical energy. While their orders to watch en- INDIANAPOLIS POWER & LIGHT COMPANY 675 gineers and others must be obeyed, they are in no sense supervisory employees as claimed by District 50. The survey engineer. This employee performs work practically indistinguishable from that done by the meter testers who are in- cluded in the unit by agreement of the parties. He has no supervisory authority. Stock clerks. Although designated as clerks the following em- ployees perform no clerical duties but are engaged variously in the receipt, distribution, repair, and salvage of parts in the stores depart- ment : Cleuts F. Brinker, Thomas A. Chumley, William H. Harmon, Jr., Eddie S. Lindsey, Clarence I. McClain, Russell A. Mohr, Leslie A. Means, Joseph Sexson, Ed Stucky, John R. Eubinger, John A. Weathers, and Ralph Omar White. B. We shall exclude from the unit, in accordance with the conten- tions of District 50, all clerical and technical employees, and, in addition : The two custodians who work and live at Ipalco Hall. They are not concerned in the production or distribution of electrical energy. The two firemen and janitors employed in the Building and Grounds Department. They are not concerned in the production and distribution of electrical energy.8 The elevator operator in the Building and Grounds Department since she is not concerned in the production and distribution of elec- trical energy. - The housekeeper in the Building and Grounds Department since all parties agree she possesses supervisory authority. The six janitors and five janitresses in the Building and Grounds Department since they are not concerned in the production and dis- tribution of electrical energy. The four mechanics in the Building and Grounds Department since two of them have supervisory authority and the others do maintenance work in an office building and are not concerned in the production or distribution of electrical energy. The nine bill passers since they are not concerned in the production or distribution of electrical energy. The five cashiers since their duties are purely clerical. The floorman in the cashier's department since he is not concerned in the production and distribution of electrical energy. The six collectors since their work is of a clerical or administrative nature. The floorman in the Customers' History and Service Department 8 Not to be confused with the five ,firemen and groundsmen, listed in the Appendix, who • work in the same department. The latter employees work in a power station during several months of the year. 540612-44-vol. 51-44 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD since he is not concerned in the production or distribution of elec- trical energy. The special investigator since his duties are of a clerical nature. The 24 meter readers since their work is clerical in nature and is not concerned directly with the production and distribution of elec- trical energy. The transformer engineer since he is a technical employee with specialized training and experience and would more appropriately be grouped with others of like education and interests. The service dispatcher since his duties are of a clerical and admin- istrative nature. The technician in the meter and relay department since his formal training and technical skill suggest his inclusion with others of like training, skill, and interests. The special police,,substation watchmen, watchmen, and guards in all departments, in conformance with the settled policy of the Board, since these employees are armed, uniformed, under the supervision of the military authorities, or are otherwise deputized. The dispatcher in the Service Bureau Office since his work is of a clerical and administrative nature. The draftsmen and engineers in the Engineering Department since these employees are skilled technicians and professionals; more ap- propriately included with those of similar skill, training, and in- terests. The range estimator helper and wiring estimators in the Engineer- ing Department since their duties are clerical and are more closely related to sales and engineering problems than to the production and distribution of electrical energy. The engineers in the Original Cost Department since their work is related to fiscal problems rather than to the production and distribu- tion of electrical energy- The engineers in the Property Records Department since their work relates to the valuation and location of property rather than to, the production and distribution of electrical energy. The two cafeteria employees since they are not cencerned in the production and distribution of electrical energy. The special investigator in the Safety and Personnel Department since he is not concerned in the production and distribution of electri- cal energy. The special representative in the Safety and Personnel Department since his work is of an administrative nature. The. two laboratory employees in the Harding Street Power Plant since they are formally trained technicians whose training and in; INDIANAPOLIS POWER & LIGHT COMPANY 677 terests set them apart from those in the unit herein found appro- priate. The two buyers in the purchasing department since their duties are purely administrative. The display floor maid in small appliance sales since she is not con- cerned in the production and distribution of electrical energy. The clerks in the Stores Department other than those named in subsection A, above, since their duties are chiefly clerical. We find that all production and distribution employees of the Company, including those categories and individuals named in Sec- tion IV, subsection A, above, and the Appendix following, but ex- cluding those categories and individuals set forth in Section IV, sub- section B, above, as well as all clerks, stenographers, typists, teletype operators, telephone operators, accountants, billers, collectors, sales- men, saleswomen, guards, special police and watchmen, engineers, draftsmen, technical employees, special representatives, administra- tive employees, and all supervisory employees with authority to hire, promote, discharge, discipline, or otherwise effect changes in the status of employees, or effectively recommend such action, constitute a unit appropriate for the purposes 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 means of an election by secret ballot among the employees 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 2, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with Indianapolis Power & Light Company, Indianapolis, Indiana, 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 Ninth Region, acting in this matter as agent for the National Labor Relations Board, and subject to Article III, Section 10, of said Rules and Regulations, among 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 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 any who have since quit or been discharged for cause, to determine whether they desire to be represented by United Mine Workers of America, District 50 (Utilities Division), or by I. P. & L. Employees Protective Association for the "purposes of collective bargaining, or by neither. MR. GERARD D. REILLY took no part in the consideration of the above Decision and Direction of Election. APPENDIX Department Categories included in unit Buildings and Grounds ------- Firemen and Groundsmen. Electrical Operating : Appliance Repair and Repairmen. Electric General. Dispatchers------------- Load dispatchers. Electricians ------------ Electricians. , Garage_________________ All but stenographers. Meter Installers --------- All. Meter and Relay -------- All but clerks, stenographers, and technician. Overhead lines ---------- All but clerks. Street Light Patrolmen__ All. Substations_____________ All. Transformer' Repairs_--_ All. Troublemen ------------ All. Underground ----------- All. Mechanical ----------------- All but the clerk. Power Plants : Harding Street --------- All but clerks, laboratory employees, special police, and watchmen. Perry K--------- ---_-_ All but the clerk, storeroom clerks, and watchmen. Hill Street------------- All but the clerk, guard, and watchmen. Perry W--------------- All. Steam Heat----------------- All but the clerk and stenographer. Stores---------------------- None but the individuals listed in Sec- tion IV, subsection A.