Birmingham Electric Co.

National Labor Relations Board - Board Decisions

May 16, 1950

89 N.L.R.B. 1342 (N.L.R.B. 1950)

In the Matter of BIRMINGHAM ELECTRIC COMPANY, EMPLOYER and
LOCAL 1322, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
A. F. OF L ., PETITIONER
Case No. 10-RC-794.-Decided May 16, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, ahearing was held before M. A. Prowell,
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 National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Houston, Reynolds, and
Murdock].
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 labor organization involved claims to represent certain
employees of the Employer. - - -
3. The Employer moved to dismiss the ! petition because it was
filed before the Petitioner had ascertained whether or not the Em-
ployer would recognize the Petitioner. At the hearing,, the Employer
refused to recognize the Petitioner as the bargaining representative
for the employees included in the petition. For the reasons appear-
ing in Advance Pattern Commpany, 80 NLRB 29, we deny this motion.
The- Employer offered as another basis for dismissing the petition
the contention that the record does not show that the petition is
supported by at least 30 percent of the employees within the unit
described in the petition. We reaffirm our consistent holding that
the showing of interest is a matter for administrative determination
and may not be litigated by the parties. Heyden Chemical Corpora-
tion, 85 .NLRB 1181; Hughes Aircraft.Company, 81 NLRB 867.
We find that a question affecting commerce exists concerning the
representation of employees of the Employer within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
89 NLRB No. 159.
1342
BIRMINGHAM ELECTRIC COMPANY 1343
. 4. The Employer is engaged in, the' distribution of., steam and elec-
tric power,. and in the operation of a transit system in Birmingham,
Alabama, and vicinity. The Petitioner seeks to represent a unit com-
posed mainly of clerical employees in the electric distribution depart-
ment.
The Employer opposes such representation,. contending that since
the Petitioner is presently the bargaining agent for the production
employees in that department, it is not qualified to also,represent
the .clerical employees since those two groups of employees have no
community of interests. The Employer's argument is that even though
the two groups were represented in separate units, their representa-
tion by .the same union would tend to amalgamate the two.
We have not been referred to any rule of law or established prin-
ciple supporting this position of the Employer, nor do we know of
any valid reason impelling toward that conclusion. In the amended
Act, Congress enacted such a rule with reference, to guards ; it did
not similarly legislate as to clerical employees: We find this con-
tention of the Employer to be without merit.
As described in the petition, the proposed unit would include all
clerical employees, radio operators, and radio dispatchers employed
in the electric and stores department and working in the distribution
building, with the usual statutory exclusions. The electric distri-
bution department is broken down into three divisions, namely, the
line, installation, and testing divisions. All the employees connected
with these divisions work in the distribution building. The stores
department is a separate department of the Employer's operations,
independent of the electric distribution department. However, an
employee of the stores department whose work is related to the elec-
trical department is stationed at the distribution building. The Peti-
tioner would include this employee in the unit.
The Employer contends that a single unit composed of the clerical
employees in the electric distribution department is inappropriate.
It maintains that the line, ' installation, and testing divisions are so
functionally independent that each division should comprise a sepa-
rate unit.
The three divisions of the electric distribution department are all
located in the distribution building and are under the supervision of
a general superintendent. The clerical employees of those divisions
all work on the second floor of that building. While an individual
clerical employee is assigned to a particular division, he may substitute
for employees in other divisions. The work of all the clerical em-
ployees is of a similar nature and is overlapping. The production
employees of the three divisions are presently represented by the Peti-
1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tioner in one unit. On the basis of all these facts and on the record
as a whole, we find that a single clerical unit is appropriate.
We find that the following employees constitute a unit appropriate
for the purposes of collective bargaining within the meaning of Section
9 (b) of 'the Act:
All clerical employees, radio operators, and radio dispatchers em-
ployed in the electric distribution department and the stores depart-
ment 1 working at the distribution building of the Employer at Bir-
mingham, Alabama, excluding all other employees of the Employer,
commercial accounts clerks,2 guards, professional employees, and
supervisors as defined in the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain Representatives for the
purposes of collective. bargaining with the Employer, an election by
secret ballot shall be conducted as early as possible, but not later than
30 days from the date of this Direction, under the direction and super-
vision of the Regional Director for the Region in which this case was
heard, and subject to Sections 203.61 and 203.62 of National Labor
Relations Board Rules and Regulations, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the payroll period immediately preceding the date
of this Direction of Election, including employees who did not work
during said payroll period because they were ill or on vacation or
temporarily laid off, but excluding those employees who have since
quit or been discharged for cause and have not been rehired or rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
or not they desire to be represented, for purposes of collective bargain-
ing, by Local 1322, International Brotherhood of Electrical Workers,
A. F. of L.
' We include in the unit the stores department employee mentioned previously since his
work is connected with the electric distribution department and since he apparently has
more contact with other clerical employees in the building than with other employees of
the stores department working at various points throughout the city.
2 Though located in the distribution building, these employees are office clerical employees
engaged in billing work . The Employer is in the process of moving them to the general
office building where other employees are engaged in the same work. For these reasons we
have excluded commercial accounts clerks from the unit.