Pennsylvania Power & Light Co.

PENNSYLVANIA POWER & LIGHT COMPANY 293 discriminatory action aforementioned, computation to be made in the customary ananner.e Upon the basis of the above findings of fact, and upon the entire record in .the case, I make the following: CONCLUSIONS OF LAW 1. Lakeland Bus Operators' Association is a labor organization within the mean- ing of Section 2(5) of the Act. 2. By discriminating in regard to the hire and tenure of employment and terms .and conditions of employment of its employees , thereby encouraging membership in a labor organization , Lakeland Bus Lines, Incorporated, has engaged in and is engaging in unfair labor practices within the meanings of Section 8(a)(3) of the Act. 3. By contributing support to the Association , the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(2) of the Act. 4. By interfering with , restraining, and coercing employees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 5. By causing the Company to discriminate in regard to hire and tenure of employment and terms and conditions of employment in violation of Section 8(a) (3) of the Act, the Association has engaged in and is engaging in unfair labor ;practices within the meaning of Section 8(b)(2) of the Act. 6. By restraining and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Association has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (b) (1) (A) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] 6 Crossett Lumber Company, 8 NLRB 440 ; Republic Steel Corporation v. N.L.R.B., 311 U.S. 7; F. W. Woolworth Company, 90 NLRB 289. In the case of the Association, -the terminal date shall be the date of a proper offer of reinstatement or the date upon which the Association serves upon the Company the written notice , whichever shall first occur. Pennsylvania Power & Light Company and Utility Engineers Association, Engineers and Scientists of America, Petitioner. Case No. 4-RC-3594. December 3, 1958 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 Chester S. Mont- gomery, 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 Leedom and Members Bean and Jenkins]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the National Labor Relations Act. 2. The Petitioner and the Intervenor, Employees Independent Association, are labor organizations claiming to represent certain employees of the Employer. 122 NLRB No. 42. 294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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. Petitioner seeks a unit of professional engineers and scientists at all locations of the Employer. The Petitioner and Employer agree as to the composition of the unit, except as to the classifications dis- cussed below. The Employer would also include some 21 employees classified as junior engineers, who the Petitioner concedes are pro- fessionals, but who are currently covered by a contract effective June 10, 1957, to June 10, 1959, between the Intervenor and the Employer, which contract covers nonprofessional employees.' The Employer contends that as the junior engineers are professionals and have not voted in a professional unit, they should be included in the present requested unit. The Petitioner declares it is willing to represent the junior engineers, if the Board finds that the contract is not a bar. The Intervenor, however, opposes the removal of the junior engineer classification from its contract on the ground that the Board's normal contract-bar rules should apply. Although the junior engineers are conceded to be professional persons by the Peti- tioner, as they are presently represented in a certified unit by a union whose contract would bar a representation proceeding with respect to this category, we shall exclude them.2 The Employer is an electric public utility, serving an area in central-eastern Pennsylvania. The engineers herein involved are em- ployed in the engineering and construction department headed by a vice president of engineering. The Employer concedes that the• engineers herein sought to be represented are professional employees, but disagrees only as to the inclusion of the following classifications on the ground that they are supervisors. Senior project engineers: Senior project engineers and project en- gineers, whose function is to design construction work, are located in numerous sections and divisions of the engineering department .3' After the engineering and construction budget determines what con- struction projects are to be developed, the section head or division head divides the various projects among the senior project engineers of whom there are 34 throughout the system. The assignment of 1In the 1953 proceedings before the Board, the Employer and the Intervenor agreed' that the junior engineers were not then professional employees within the meaning of Section 2 ( 12) of the Act. The question of their professional status was therefore not considered by the Board. 2 Westinghouse Electric Corporation, 112 NLRB 590, 592. In the instant case, the Employer appears to argue in its brief that because the junior engineers have never exercised their right to vote as professional employees under Section 9(b) (1) of the Act,. the contract-bar rule does not apply. We find no merit in this contention . See opinion of the Court of Appeals affirming the Westinghouse case, supra, 236 F. 2d 939 ( C.A. 3),.. 3 To mention some of these : electrical engineering, overhead distribution , transmission, mechanical engineer 's division , system planning, station electrical engineer's office, atomic- program engineer's department. PENNSYLVANIA POWER & LIGHT COMPANY 295- a project to a specific senior project engineer depends on the work- load and the specialization of the engineer. The senior project engi- neer confers with the section head to determine whether the former should perform all the work himself or whether a project engineer or other subordinate engineer should be assigned to him. If a project engineer is assigned to assist and work with the senior project engi- neer, the latter ordinarily sublets the preliminary phases and less complex aspects to the subordinate. The section head may also desig- nate an engineer or a junior engineer to work with the project engineer. The senior project engineer is recognized as the sponsoring engineer. All the engineers in the group work together on a given project, the senior project engineer giving technical advice and coun- sel to the lower classifications of engineers. The senior project engi- neer is, of course, responsible for the accuracy, completion, and performance of the work. In addition, if the senior project engineer requires the help of a draftsman for the project, he obtains such help through the chief draftsman or squad leader in the drafting room. The section head, who assigns all the projects, is informed of the status of each project in his particular section. There are some 64 subordinate engineers who are allegedly super- vised by the 34 senior project engineers here under consideration. Of' these 34, eleven have not had any subordinate engineers assigned to them. Of the remaining 23, some have not had such assistants for about a year. Where assignments are made in the majority of cases,. one senior project engineer works with one project engineer. Whether a senior project engineer will ever be assigned a subordinate engineer depends on the workload, the specialization of the senior man and the experience of the subordinate. In addition, there are several classifica- tions, concededly supervisory , over the senior project engineer, such as the section head, the division head and, finally , at the top of the supervisory ladder is the vice president in charge of engineering.4 All engineers above-mentioned who work with assistants are re- quired to make out merit rating reports from time to time on the work of the subordinates. This applies not only to senior project engineers whose status is in dispute , but to all engineers to whom as- sistants are assigned . These reports are completed by answering a. series of questions, customarily used in such matters. In support of its contention that the senior project engineers are supervisors, the Employer urges that (a) they responsibly direct the work of the project engineers and (b ) they affect the status of their subordinates with regard to promotion and salary increases through the merit rating reports. We find no merit in these contentions. As, 4 In the office of the distribution engineer are also found regional engineers who are admittedly supervisors of the senior project engineers and who are under the assistant distribution engineer. 296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to (a), it is clear from this record that the relationship between the senior project engineer and the project engineer, who is also a pro- fessional employee, is that of a more experienced to a less experienced person. The senior project engineer is more experienced and more knowledgeable in his specialty, and he gives technical advice, coun- sel, and guidance to his assistant. We are satisfied that the direction exercised by the senior project engineers, who have no formal re- sponsibility beyond the project specifically assigned to them is not of a supervisory nature even though they have the right to ask for assistance of a lower rated engineer., The same relationship exists between the project engineer and lower classifications, yet, the Em- ployer does not urge that the project engineers are made supervisors thereby. As to (b), routine merit rating reports are independently considered by at least two persons in a section, and in addition, all reports are again independently reviewed by the entire hierarchy of supervisors. Under such circumstances, we cannot find that the senior project engineers make effective recommendations within the meaning of the Act.6 There is one other factor in this case, which the Board has con- sistently deemed highly persuasive in the ultimate determination of supervisory status, to wit, the ratio of supervisors to rank and file employees.7 If we were to exclude the senior project engineers as supervisors, the ratio would be highly disproportionate. For example, the department of the chief mechanical engineer has three divisions : (1) mechanical design engineering; (2) civil engineering; and (3) mechanical research. In the mechanical design engineering there are two senior project engineers to five engineers of lower classifications in addition to the head of the division, admittedly a supervisor, called the mechanical design engineer. In the civil engineering division, there are two senior project engineers and seven engineers of lesser classifications. This division has admittedly two additional super- visors, the civil engineer and the assistant civil engineer. In the mechanical research division, there are two senior project engineers and four engineers of lower classification, in addition to the head of this division called the mechanical research engineer. Above all these classifications, is of course, the supervisor of the department entitled the chief mechanical engineer. If the senior project engineers in this department were found to be supervisors, there would be s Puget Sound Power & Light Company, 117 NLRB 1825 , 1827; Sonotone Corporation, 90 NLRB 1239 ; Worden-Allen Company, 99 NLRB 410, 412. 5 Furthermore, the record shows that the section head, rather than the senior project engineer, deals with personnel problems . Thus, it is the section head who makes the basic assignments of projects . He also authorizes transfers, holiday and overtime work, checks on lateness and other disciplinary matters, and passes on promotions and dis- charges. As the sections are small and the engineers work in close proximity to one another, the section head has full opportunity to supervise the employees In his group. 7 United States Gypsum Company, 119 NLRB 1415. PENNSYLVANIA POWER & LIGHT COMPANY 297 four supervisors to five nonsupervisors in mechanical design divi- sion, five supervisors in seven nonsupervisory employees in the civil engineering division, and four supervisors to four nonsupervisors in the mechanical research division." In similar situations, the Board has found the disputed categories not to be supervisors. Accordingly, for all the foregoing reasons, we find that the senior project engi- neers are not supervisors and we shall include them in a unit of professional employees.9 The senior relay engineers, the senior voltage control engineer, the interconnection engineer, and the cost and performance engineer: These employees work in the system operating department, under a superintendent and his technical assistant. Below them are three sections, each in charge of a supervisor as follows : (1) supervisor of system relaying; (2) supervisor of load; and (3) supervisor of system voltage control. Senior relay engineers : There are two such engineers who work under the supervisor of system relaying. Their principal task is to determine types of relays to be used, check all protective devices to see that they function properly and to review reports on new equip- ment. If a job is assigned to a senior relay engineer and it is de- termined that he needs assistance on that particular project, the section head will designate from among the relay engineers, junior engineers or engineering aids. The senior relay engineer will give technical advice and counsel to his assistants in the same way as the senior project engineers, discussed above, to their assistants. We find that the relationhip of the senior relay engineer to his subordi- nate engineers is not substantially different from that of the senior project engineer. Moreover, should the senior relay engineers be considered supervisors, there would be five supervisors to seven sub- ordinates, a wholly disproportionate number in this section of the department. We therefore find that the senior relay engineers are not supervisors within the meaning of the Act, and we include them in the unit of professional employees. Senior voltage control engineer: There is one such engineer in the section of the supervisor of system voltage control. There are, in addition, two engineering aids and one clerk in this section. The main task of this section is to keep a running record of voltage levels throughout the system, to analyze voltage surveys and detect voltage problems. The information which comes into this section is more or less routine. The senior voltage control engineer guides his engineer- ing aids in assembling this data. We find that the relation of the 8 On the Employer's theory of supervisory status, there would be the same dispropor- tionate number of supervisors in the transmission engineer's office and in the divisions of the station electrical engineer 's office. United states Gypsum Company, 121 NLRB 370. :298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD senior voltage man to his assistants is that of a more experienced to a less experienced person. Moreover, if the senior voltage control engineer is a supervisor, there would be two immediate supervisors to three rank-and-file people in this section, and if higher ranking supervisors are included, there would be four supervisors to three subordinates. We find that the senior voltage control engineer is not a supervisor within the meaning of the Act, and we include him in the unit of professional employees. Interconnection engineer: This engineer works under the super- vision of the section head entitled supervisor of load. His main task is to be responsible for the data concerning the day-to-day inter- change of the system. This information comes into the section regu- larly and the engineering assistants who work with the engineer perform routine tasks in compiling this data. The interconnection engineer also works with a group of accountants called interchange cost accountants, who have their own leader, and with the system results engineers. The latter also work with daily interchange data for record purposes and analyze IBM sheets to determine the relative .accuracy of the data. The cost and performance engineer: This engineer provides cost data for purposes of load scheduling and data to other departments such as those dealing with public utility commissions which require data on production costs, capital investments, etc. This engineer, to- gether with the interconnection engineer sublet certain problems to the system results engineers . All these men work as a group, all sub- -ordinate engineers acting as a pool for such assistance with the sec- tion head making the basic assignments. We find that the intercon- nection and cost performance engineers are the technical advisers to their assistants and that the section head is the real supervisor of the group. We shall include the interconnection engineer and the cost and performance engineer in the unit. Local test engineers: The duties of these men are to make periodic routine tests of equipment and also check equipment in emergency situations. Each test engineer usually has only one assistant, who is a less skilled engineer, to go out into the field with him. When neces- sary, a lineman, who climbs steel towers or poles, is designated to go out with the test engineer. The lineman, however, works under the supervision of his own foreman. The test engineers work in the test department, which is headed by the superintendent of tests, under whom are two additional supervisors , the chief of electrical tests and the assistant chief of electrical tests. The test engineers work under the latter's supervision . The chief of electrical tests authorizes- trans- fers from the department and grants extended leaves of absence. We find, on the basis of the record, that the relationship of the local PENNSYLVANIA POWER & LIGHT COMPANY 299 test engineer to his assistant is the same as that of the senior project engineer to the project engineer, and that the local test engineer is not a supervisor within the meaning of the Act. Moreover, should the test engineers be found to be supervisors, the result would be 12 supervisors to 9 nonsupervisory engineers in the test department. We :shall therefore include the local test engineers. Lines and substations division engineers-Distribution (L cli S en- .gineers) : These engineers work in the lines and substations depart- ment, headed by a superintendent, under whom are two division superintendents, three assistant division superintendents and two technical supervisors. There are five L & S engineers, each located at a different substation : Wilkes-Barre, Hawley-Ilonedale, Pottsville, Williamsport, and Sunbury. The principal function of these engi- neers is to design small extensions or relocations in the distribution system. When a request for service is made, it is directed first to the district office of the Company, where the manager transmits it to the L & S engineer at the substation nearest to the location involved. The L & S engineer then directs a service engineer to go into the field and submit a report on the request of the customer. The L & S engineer then reviews and checks the report, after which he makes out an order form, which then must be approved by the assistant division superintendent. On larger jobs, the superintendent of the depart- ment must confirm the order. As indicated above, there are five L & S engineers at five installa- tions, which are widely scattered over five different counties. Each installation usually employs one service engineer and one or two clerks. One installation has two junior engineers. Several have one or two pole inspectors. Although assignments are made from the dis- trict offices, it appears that no other supervisor above the L & S en- gineer is directly on hand to assume responsibility for the work at these substations. We find that the L & S engineers appear to be in sole charge of the substations where they are employed, they are supervisors within the meaning of the Act, and we shall therefore exclude them from the unit. We find that the following employees of the Employer constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All professional engineers and scientists employed by the Em- ployer including senior project engineers, local test engineers, senior voltage control engineer, cost and performance engineer, senior relay engineer, and interconnection engineer, but excluding lines and sub- -stations engineers-distribution, all other employees, watchman, guards, and all supervisors as defined in the Act. ,[Text of Direction of Election omitted from publication.]