West Texas Utilities Co.

WEST TEXAS UTILITIES COMPANY 267 WEST TEXAS UTILITIES COMPANY and INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, LooALs Nos. 898, 920, AND 1044, AFL, PETITIONER. Case No. 16-RC-812. July 18,195,? Second Supplemental Decision and Direction Pursuant to a Decision and Direction of Election issued by the National Labor Relations Board," an election by secret ballot was con- ducted in the above-entitled proceeding on December 19 and 20, 1951, under the direction and supervision of the Regional Director,for the Sixteenth Region. Thereafter a tally of ballots was furnished the parties, which showed that of the 152 votes cast, 59 valid ballots were cast for the Petitioner, 47 valid ballots were cast against the Petitioner, 45 ballots were challenged, and 1 void ballot was cast. On December 28, 1951, the Employer filed objections to conduct affecting the result of the election, and to the conduct of the election. On January 8, 1952, the Regional Director issued his report on ob- jections to the election and challenged ballots, and on January 25, 1952, the Employer filed exceptions thereto. Thereafter, on February 15, 1952, upon consideration of the Re- gional Director's Report and the exceptions thereto, the Board issued a Supplemental Decision, Direction, and Order,2 (1) sustaining the challenges to 12 of the 45 challenged ballots,3 in accordance with the Regional Director's recommendations, and in the absence of any ex- ceptions thereto by either party; (2) in accordance with the Regional Director's recommendations, and absent any exceptions thereto, over- ruling the challenges to 3 of the remaining challenged ballots,4 and directing that these ballots be opened and counted; (3) remanding the proceeding to the Regional Director, directing that a hearing be held on the issues raised by the Employer's exceptions with respect to the remaining 30 challenged ballots,5 and directing that the hearing officer prepare and serve upon the parties a report containing resolu- tions of the credibility of witnesses, findings of fact, and recommenda- tions as to the disposition of said challenged ballots; and (4) reserving any ruling on the Employer's objections to the election, pending final action on the challenged ballots.,' 197 NLRB 184. s 98 NLRB 157. See schedule A attached to the Supplemental Decision of February 15, 1952. See schedule B attached to the Supplemental Decision of February 15, 1952. See schedule C attached to the Supplemental Decision of February 15, 1952. 6 Ruling on these objections is further reserved pending the opening and counting of the challenged ballots which are hereinafter directed to be opened and counted. 100 NLRB No. 46. 268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A hearing was held between March 17 and 26, 1952, before Richard C. Keenan, hearing officer. On June 4,1952, the hearing officer issued and duly served upon the, parties his report with respect to the 30 challenged ballots, recommending that the challenges be sustained as to the ballots of the 17 employees listed in schedule I attached hereto, and that as to the ballots of the 13 employees listed in schedule II attached hereto, the challenges be overruled. The Petitioner filed exceptions to the hearing officer's recommenda- tions with respect to 5 of the challenges, and the Employer filed excep- tion to his recommendations as to 14 of the remaining challenged ballots. The Employer also filed a motion to reopen the hearing for the purpose of submitting further evidence or affidavits. We' hereby deny the Employer's motion to reopen inasmuch as it appears that the further evidence or affidavits which the Employer proposes to adduce would be merely cumulative and repetitious. '1'lle Employer's Exceptions The Employer's original exceptions to the Regional Director's recommendations on the challenged ballots had raised the issue of the eligibility to vote of those employees of the Employer who spend part of their working time in operating or maintaining the Employ- er's Diesel engines. The Employer had contended in those exceptions that such employees were, generally speaking, eligible to vote. In its Supplemental Decision of February 15, 1952, the Board had stated that "only such of those employees as regularly devote a substantial part of their time to the maintenance or operations of Diesel engines" would be deemed eligible. Applying this test, the hearing officer, in his report, found that the employees listed in schedule I did not regularly devote a substantial part of their time to the operation or maintenance of Diesel engines and accordingly recommended that their ballots not be opened or counted. As to the employees listed in schedule II, the hearing officer found that they did regularly devote a substantial part of their time to the operation or maintenance of Diesel engines, and therefore rec- ommended that their ballots be opened and counted. The Employer excepts to the hearing officer's recommendations with respect to 13 of the employees in schedule I,8 contending that they should have been found to be eligible, on the following grounds: 4 Pursuant to 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 [ Chairmgn Herzog and Members Styles and Peterson]. 8 These 13 comprise all the employees in schedule I except L. M. Smith, J. A. Bettis, M. C. Bell, and Luciana Rodriquez. WEST TEXAS UTILITIES COMPANY 269 (1) That inasmuch as these 13 employees were hired primarily be- cause of their ability to operate and maintain Diesel engines, and that is their most important function, they should be deemed eligible, how- ever slight their employment in such work. The Employer would, in effect, substitute a qualitative test for the quantitative test heretofore applied by the Board in determining the eligibility of employees who work only part of their time in jobs falling within the unit. This contention of the Employer is rejected as contrary to Board precedent, and particularly in view of the express finding in the Supplemental Decision herein that eligibility in this case depended on substantiality and regularity of employment in Diesel work. (2) That, in any event, under the Ocala Star Banner decision," substantiality of employment is immaterial, the only requirement for eligibility being, in effect, that the employees be regularly employed within the unit. We do not so construe that decision. Moreover, in the Supplemental Decision herein, as already stated, the Board has already resolved this question contrary to the Employer's contention. (3) That the hearing officer's findings that the 13 employees in schedule I covered by the Employer's exceptions do not regularly spend a substantial part of their time on Diesel operation or mainte- nance are erroneous, because, in making these findings, the hearing officer improperly rejected the oral testimony of the employees and their supervisors as to the extent of their employment in Diesel work, and relied solely on summaries of daily time records prepared by the employees, showing the proportion of their time spent on Diesel opera- tion and maintenance. The hearing officer, while finding that these time records did not reflect all the time actually spent on Diesel work, concluded that the records were more reliable than estimates made at the hearing by the employees and their supervisors. This conclusion seems proper in view of the fact that the time records were made by the employees contemporaneously with their performance of the Diesel work, and were not prepared with a view to influencing the Board's' decision in this case, but solely for cost accounting purposes and to comply with the regulations of the Federal Power Commission. In any event, it would be contrary to our usual practice to set aside the hearing officer's resolution of questions of credibility, unless they were contrary to the clear preponderance of the evidence. We find no such warrant in this record for reversing the hearing officer's findings. We will therefore adopt his recommendation that the challenges to the ballots of these 13 employees be sustained. In the absence of exceptions thereto, we will also adopt his recommendation that the challenges to the remaining 4 employees listed in schedule I be sustained. 9 97 NLRB 384. 270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The Employer excepts also to the hearing officer's recommendation that the challenge to the ballot of A. M. Coplen be overruled. This employee testified that he spent most of his time in painting and other maintenance work around the Diesel plant. While evidence of another employee tended to contradict this testimony, the resolution of this conflict in testimony was within the province of the hearing officer. We will, therefore, adopt the hearing officer's recommendation that Coplen's ballot be opened and counted. The Petitioner's Exceptions The Petitioner excepted to the hearing officer's recommendation that the Board overrule the challenges to the ballots of Chappell, McCreary, Lindsey, Valenzuela, and Drummond. These exceptions are based principally on the Petitioner's disagreement with the hearing officer's resolutions of questions of credibility. However, we find insufficient basis in the record for disturbing the hearing officer's findings with respect to these employees. We will, therefore, adopt the hearing officer's recommendations with respect to these employees, and direct that their ballots be opened and counted. In the absence of any exceptions to the hearing officer's recommenda- tions that the ballots of the remaining employees listed in schedule II be opened and counted, we will adopt those recommendations. Direction By virtue of, and pursuant to, the power vested in the National Labor Relations Board by Section 9 (c) of the National Labor Rela- tions Act, and pursuant to Section 102.61 of the National Labor Rela- tions Board Rules and Regulations, Series 6, as amended, it is hereby DIRECTED that, as part of the investigation to ascertain representa- tives for the purposes of collective bargaining with West Texas Utili- ties Company, the Regional Director for the Sixteenth Region shall, pursuant to the Rules and Regulations of the Board set forth above, within ten (10) days from the date of this Direction, open and count the ballots of the 13 employees listed in schedule II attached hereto, and thereafter prepare and cause to be served upon the parties a revised tally of ballots, including therein the count of the aforesaid 13 ballots and of the 3 additional ballots heretofore directed to be opened and counted in the Supplemental Decision of February 15, 1952. IT IS FURTtIER DIRECTED that if the revised tally of ballots shows that the Petitioner has won the election, the said Regional Director shall so report to the Board and refrain from issuing a certification of representatives to the Petitioner until after the Board has finally disposed of the objections to the election filed by the Employer. THEE CHAIN BELT COMPANY Schedule I 271 V. L. Smith Eugene Allison R. L. Walker L. M. Smith J. A. Bettis T. B. Henderson Miguel Franco Jose Gonzales Luciana Rodriquez James Price C. L. Reavis C. L. Morrow F. H. Welling Acie Henderson M. C. Bell H. L. Jones M. C. Powell Schedule II W. A. Cates W. H. Lindsey N. F. Roberson Lewis R. Tucker W. E. Rule F. F. Loughran Juan R. Urista John Mullins A. M. Coplen W. B. McCreary Frank Drummond J. I. Chappell Francisco Valenzuela THE CHAIN BELT COMPANY, BALDWIN-DuCKWORI*+H DIVISION ( SPRING- FIELD PLANT) and UNITED STEELWORKERS OF AMERICA, CIO, PETI- TIONER. Case No. 1-RC-761. July 18, 1962 Decision and Direction of Election Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Sidney A. Coven, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Chairman Herzog and Members Murdock and Peterson]. 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 labor organization involved claims to represent 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) (1) and Section 2 (6) and (7) of the Act. 4. The Petitioner, which already represents a unit of production and maintenance employees at the Employer's Springfield belt manu- facturing plant, now seeks to add to the unit a group of timekeepers and experimental machinery room employees who have not previously been included in the unit. Both the Petitioner and the Employer re- quest that the Board direct an election to determine whether these employees wish to be represented by the Petitioner as part of the larger production and maintenance unit. We have previously included time- 100 NLRB No. 42.