Nebraska Power Co.

In the Matter of NEBRASKA POWER COMPANY and LOCAL UNION B-763, INTERNATIONAL BROTHERHOOD or ELECTRICAL WORKERS, AFFILIATED WITH THE AMERICAN FEDERATION OF LABOR Case No. B-1916.-Decided September °L3,1940, Jurisdiction : electric utility industry. Practice and Procedure : petition dismissed where •no appropriate unit within scope of petition and cross petition. Kennedy, Holland, Delacy cQ Svoboda, by Mr. Yale'C. Holland and Mr. Ralph E. Svoboda, of Omaha, Nebr., for the Company. Mr. Robert K. Garrity, of Omaha, Nebr., for the I. B. E. W. Mr. Raymond E. McGrath, of Omaha, Nebr., for the'Association. Mr. Louis Colcin,'of counsel to the Board. DECISION AND ORDER STATEMENT OF( THE CASE On February 1, 1939, International Brotherhood of Electrical' Workers, Local Union B-763, herein called the I. B. E. W., filed with the Regional Director for the Seventeenth Region (Kansas 'City, Missouri) a'petition, and on June 12, 1939, and February 23, 1940, respectively, amended petitions, alleging that a question affecting commerce had arisen concerning the representation of employees of Nebraska Power Company, Omaha, Nebraska, herein called the Company, and requesting an investigation and certification of repre- sentatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On May 23, 1940, the Na- tional Labor Relations Board, herein called the Board, acting pur- suant to Section 9 (c) of the Act and Article III, Section 3, of National Labor Relations Board Rules and Regulations-Series 2, as amended, ordered an investigation and authorized the Regional Director to conduct it and to provide for an appropriate hearing upon due notice. On June-3 and 5, 1940, respectively, the Regional Director issued a notice of hearing and an order of, postponement of hearing, copies - 27N.L.R.B.,No.88. 411 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of which were duly served upon the Company, the I. B. E. W., and Independent Employees' Association of the Nebraska Power Com- pany, herein called the Association , a labor organization claiming to represent employees directly affected by the investigation. Pur- suant to notice, a hearing was held on June 17, 18, 19, 20, and 21, 1940, at Omaha, Nebraska, before Daniel J. Leary, the Trial Exam- iner duly designated by the Board. The Company and the Associa- tion were represented by counsel , the I. B. E. W. by its representative; all participated in the hearing . Full opportunity to 'be heard, to examine and cross -examine witnesses, and to introduce evidence bear- ing on the issues was afforded all parties . At the commencement of the hearing the Trial Examiner granted a motion to intervene filed by the Association. During the course of the hearing the Trial Examiner granted several motions by the I . B. E. W. to amend its petition. The Company filed an answer and amended answer to the petition, as amended, and the Association filed a cross -petition and answer during the hearing. During the course of the hearing the Trial Examiner made several rulings on other motions and on ob- jections to the admission of evidence . The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed . The rulings are hereby affirmed. After the close of the hearing the 'I. B. E. W., the Association, and the Company filed briefs which the Board has considered. Pursuant to notice duly served upon all the parties, a hearing was held for the purpose of oral argument before the Board on Sep- tember 6, 1940, at Washington, D. C. The Company, the I. B. E. W., and the Association were,represented by counsel and participated in the argument. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY Nebraska Power Company , a corporation organized pursuant to the laws of the State of Maine and duly licensed to do business in the States of Nebraska and Iowa, maintains its principal office in the city of Omaha, Nebraska . It engages as a public utility corporation in the generation of electric energy in the State of Nebraska and in the distribution of such electric energy in the States of Nebraska and Iowa. A majority of the Company's outstanding common stock is owned by the American Power and Light Company, a utility hold- ing company, within the meaning of the Federal Public Utility Hold- ing Company Act of 1935 , 49 Stat. 803. ' Its preferred stock is held by the public. NEBRASKA POWER COMPANY 413 The Company is the sole public utility operating in- an area en- compassing 53 communities, including the city of Omaha, and cover- ing 2,000 square miles inhabited by 290,000 people within the State of Nebraska, and encompassing 15 communities, including the city of Council Bluffs, and covering an area of 500 square miles inhabited by 60,000 people within the State of Iowa. To serve its customers in the State of Iowa, the Company owns and operates an electric distribution line commencing at its generating plant in the State of Nebraska, crossing the Missouri River into Iowa, and there con- necting with facilities owned and operated by the Company for serving communities and individual customers within the State of Iowa. During the year 1939, the Company's total output of electric energy was 413,400,000 kilowatt hours. Included among the Company's customers are the following rail- roads: Union Pacific; Chicago, Burlington and Quincy' Chicago, Rock Island and Pacific; Illinois Central; Chicago and Northwest- ern ; and Chicago, St. Paul, Minneapolis, and Omaha. In 1937 the energy supplied to these railroads within Nebraska'totaled 1,450,000 kilowatt hours, within Iowa, 450,000 kilowatt hours. The Omaha and Council-Bluffs Street Railway, operating in and between the cities of Omalia, Nebraska, and Council Bluffs, Iowa, is dependent upon the Company for its supply of electric energy. Also numbered among the Company's customers are numerous other organizations engaged in interstate commerce, including Western Union Telegraph Company; Postal Telegraph and Cable Company; Northwestern Bell Telephone Company; Omaha Municipal Airport, a terminal for interstate airlines; The Omaha World Herald, a daily newspaper with an interstate circulation; The Omaha Grain Exchange, which renders grain exchange quotations available throughout the country; and several packinghouses and grain elevators. The Company also supplies electric energy to the Federal Government for the operations of its post offices in the area served by the Company. Each of the customers named above uses' the electric energy supplied by the Company for lighting and powering facilities operated in Nebraska and Iowa in connection with their interstate activities. As an adjunct to its business of distributing electric energy, the Company engages in the sale of electric appliances at retail. Such merchandise sales totaled $265,000 in 1939; $215,000 in Nebraska and $50,000 in Iowa. In 1939 the Company purchased equipment and supplies devoted to the generation and distribution of electrical energy, valued at approximately $1,620,000. Purchases made outside of the State of Nebraska accounted for $720,000 of this amount. Ninety per cent 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of all supplies and equipment purchased by the Company originated outside of the State of Nebraska, whether the purchase was made outside of the State or through dealers located within the State. The Company was required to pay, in addition to the amount listed above" for purchase of supplies and equipment, $610,000 in freight charges for the transportation of its coal supply. Further evidence of the interstate nature of the Company's opera- tions is to be found in its handling of revenues . All,such revenues, from whatever source derived, are eventually accumulated in ac- counts maintained by the Company in Omaha, Nebraska. IT. THE ORGANIZATIONS INVOLVED International Brotherhood of Electrical Workers, Local Union B-763, is a labor organization chartered by International Brother- hood of Electrical Workers, affiliated with the American Federation of Labor. It admits to membership all employees of the Company, excluding administrative , clerical , and supervisory employees. .Independent Employees' Association of the Nebraska Power Com- pany is an unaffiliated labor organization admitting to its member- ship all employees of the Company, excluding officers and officials. III. THE APPROPRIATE UNIT The I. B. E. W. urges that al l employees of the Company in the storeroom department, Omaha meter department , operating office department, transportation department, Omaha line department, Council Bluffs line department , out State line department, Omaha underground department, substation department all divisions, Coun- cil Bluffs substation department, Omaha service department , Council Bluffs service department, North Nebraska Rural Division, South Nebraska Rural Division, and Omaha Rural Division , excluding all supervisors, clerical, stenographic, part-time, and casual employees, timekeepers, parking-lot attendants , private chauffeurs, cafeteria em- ployees, district managers, local managers, meter readers, home- service advisors , salesmen, collectors, charwomen, and employees in the production department , constitute a unit appropriate for the purposes of collective bargaining . The Association , in its cross- petition requests that all employees of the Company, including, cleri- cal workers and salesmen, but excluding officers and executives, con- stitute an appropriate unit. The Company urges the same unit as the Association. It does not appear from the record that the wages , hours of work, or any of the other conditions of employment of the employees in NEBRASKA POWER COMPANY 415 the unit urged by the I. B. E. W. vary in material degree from that of the employees in the production department. A large degree of interdependence and functional coherence exists between the produc- tion 'and distribution departments and there is an interchange of employees between these two departments. The I. B. E. W. sub- niitted a proposed contract to the Company in 1937 asking for recog- nition for all of the production and distribution employees. The I. B. E. W. has continued its attempts to organize the production employees and has as members employees in that department. We find that the unit requested by the I. B. E. W., excluding as ii, does production employees, is inappropriate for the purposes of collective bargaining. As pointed Out above, the Association contends that the clerical employees and salesmen should be included in a unit with the pro- duction and maintenance employees. The Association advanced in support of its contention evidence that the clerical workers and sales- men are paid on a monthly basis similar to that of the production and maintenance employees and that they participate in the various employee-benefit plans sponsored by the Company. However, these contentions are not compelling. We see no reason for departing from our usual practice of excluding office and clerical employees and salesmen from a unit largely composed of production and main- tenance employees. There are approximately 750 employees in the unit urged by the Association, approximately 275 of whom are cleri- cal employees or salesmen. We find that the unit requested by the Association is inappropriate for the purposes of collective bargaining. IV. THE QUESTION CONCERNING REI:RESENTATION Since the bargaining units sought to be established by the petition and cross-petition are not appropriate as stated in Section III; above, we find that no' question has been raised concerning the representa- tion of employees of the Company in an appropriate bargaining unit. Upon the basis of the above findings of fact and upon the entire record in the case, the Board makes the following : CONCLUSION OF LAW No question concerning representation of employees of Nebraska Power Company, Omaha, Nebraska, in a unit which is appropriate for the purposes of collective bargaining has arisen, within the mean- ing of Section 9 (c) of the National Labor Relations Act. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER - On the basis of the foregoing findings of, fact and conclusion of law, the National Labor Relations Board orders that the petition and cross-petition for investigation and certification filed by Inter- national Brotherhood of. Electrical Workers, Local Union B-763, and Independent Employees' Association of the Nebraska Power Company, respectively, be, and they hereby are, dismissed.