Central Power & Light Co.

National Labor Relations Board - Board Decisions

Mar 7, 1972

195 N.L.R.B. 743 (N.L.R.B. 1972)

CENTRAL POWER & LIGHT COMPANY
Central Power & Light Company and International
Brotherhood of Electrical Workers , AFL-CIO, Pe-
titioner. Case 23-RC-3551
March 7, 1972
DECISION AND DIRECTION OF ELECTION
BY CHAIRMAN MILLER AND MEMBERS FANNING
AND JENKINS
Upon a petition duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Michael Dunn of the
National Labor Relations Board. Following the hear-
ing and pursuant to Section 102.67 of the Board's Rules
and Regulations and Statements of Procedure, Series 8,
as amended, and by direction of the Regional Director
for Region 23, the case was transferred to the Board for
decision. Thereafter, briefs were timely filed by the Em-
ployer and the Petitioner.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its powers
in connection with this case to a three-member panel.
The Board has reviewed the Hearing Officer's rulings
made at the hearing and finds that they are free from
prejudicial error. The rulings are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act, and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The labor organization involved claims to repre-
sent certain employees of the Employer.
3. A question affecting commerce exists concerning
the representation of the employees of the Employer
within the meaning of Sections 9(c) (1) and 2(6) and (7)
of the Act.
4. The Petitioner seeks all production and mainte-
nance employees who work or report to work within
the geographical limits of Corpus Christi. Administra-
tively these encompass two power stations (Lon C. Hill
and Nueces Bay) with their attached step-up stations,
the Corpus Christi distribution district, the central
power division, the central meter department, and cer-
tain home office employees and communications. The
Petitioner also seeks eight employees who are adminis-
tratively part of the central power division, but who are
permanently stationed outside Corpus Christi. The
Employer contends in substance that only a system-
wide unit of production and maintenance employees is
appropriate for purposes of collective bargaining. How-
ever, if a Corpus Christi geographical area unit is found
appropriate, the Employer contends that its senior
storekeeper, engineering assistants, and senior engi-
neering assistant at the district office and senior store-
keepers and storekeepers at the central meter depart-
195 NLRB No. 139
743
ment are office clericals and should be excluded from
the unit. In addition, the Employer contends that its
working foremen are supervisors within the meaning of
the Act and should be excluded and that the janitors
and maintenance employees at the home office lack a
community of interest with the production and mainte-
nance employees and should also be excluded. There is
no history of collective bargaining for any of the em-
ployees sought by the Petitioner, and no labor organi-
zation seeks to represent the employees in a more com-
prehensive unit.
The Appropriate Unit
The Employer, a Texas corporation, is a public
utility engaged in the generation, distribution, and sale
of electrical energy. Its operation services 44 counties
and covers 44,000 square miles in southern Texas. The
Employer's principal office is in Corpus Christi.
Electricity is generated at the Employer's seven
power plants, situated throughout southern Texas ac-
cording to consumer needs, including the Lon C. Hill
power station and Nueces Bay power station located
within the Corpus Christi distribution district. The
electricity is transferred from these generating plants to
step-up substations and then through high voltage
transmission lines to step-down substations; all of these
operations are carried out by what is referred to ad-
ministratively as power divisions. Corpus Christi falls
within the central power division of the four power
divisions maintained by the Employer. Electricity is
then distributed and reaches the ultimate consumer
through operations performed by the Employer's seven
distribution districts, including the Corpus Christi dis-
tribution district here sought, whose functions includes
installation and maintenance of distribution lines. Ad-
ditionally, the Employer has a central meter depart-
ment where various types of metering devices and mea-
suring equipment are repaired for the entire system; a
communications department responsible for communi-
cations throughout the system; and system dispatchers
located in Victoria, responsible for dispatching elec-
tricity throughout the system as well as controlling the
amount of electrical flow between the Employer's sys-
tem and other power company systems throughout the
State of Texas.
The Corpus Christi distribution district is the only
portion of the Employer's operations whose employees,
along with the eight employees stationed outside Cor-
pus Christi and administratively attached to the central
power division, are requested by the Petitioner. About
30 percent of the production and maintenance em-
ployees regularly work within the boundaries of the
Corpus Christi distribution district. The Corpus
Christi distribution district services about 20 percent of
the Employer's customers although it covers only 2
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
percent of the area serviced by the system. The location
of all the Employer's seven distribution districts is de-
termined by the need for electrical power in the area.
All production and maintenance employees involved
work in the Employer's engineering department under
the ultimate jurisdiction of the vice president for engi-
neering. Within the power plants, the line of authority
extends from the manager of power and system opera-
tions down through the power station superintendent
to the individual supervisors in charge of the seven
power plants. For the power divisions, the line of au-
thority extends from the manager of power and systems
operations down to the superintendent of transmission
operation and maintenance' to the individual managers
of the four power divisions. In the distribution districts,
the line of authority extends from the manager of engi-
neering2 and the chief distribution engineer to the in-
dividual engineers in charge of the seven distribution
districts.
Employee relations policies are developed and coor-
dinated by the home office personnel department. Al-
though there are no- permanent personnel department
employees in the divisions or districts, personnel mat-
ters are handled at the local level as well as at the home
office.' A uniform system of work schedule is main-
tained throughout the Company; however, as to job
classifications, the only uniformity is in job titles and
wage 'ranges. Employees are classified and paid by
recommendations of local' supervisors and are not paid
uniform wages. A printed set of working' rules exists,
but no printed rules are issued to supervisors. The com-
pany manual authorizes deviations and discretions by
local supervision although substantial deviations from
a given work practice would require approval from the
home office. For example, with regard to absence due
to personal illness or off-the-job' injury, an absence
which continues beyond a certain specified time period
may qualify for continued pay if there is approval in
writing by the local supervision; and, with regard to
moving expenses, local supervisors may authorize 3
days' living expenses for employees who are moving.
Other employment benefits, administered by the per-
sonnel department on a companywide basis, include
group medical insurance, long-term disability insur-
ance, group life insurance, and a retirement plan.
Accounting policies and practices are established
and supervised by the home office. Each division, how-
ever, has its own accounting personnel directed by a
division accounting manager. Certain overall company
` This official also supervises the communications engineer who super-
vises the communications technicians.
This official, through the superintendent of meters, also has authority
over the central meter department
' Local level and the supervision therein refers to the power plants and
their individual supervisors, the power divisions and their individual manag-
ers, and the distributions districts with their engineers in charge.
accounting records are kept exclusively in the home
office; but local personnel keep critical employee per-
sonnel records such as timekeeping, upon which the
paychecks are computed, work assignments, absentee-
ism, and evaluations. Other records kept at the local
level include copies of division employees', personnel
requisition forms and customer billing information. Al-
though paychecks and customer bills are prepared and
issued by the home office, paychecks are sent to the
local district plant or division for distribution.
Persons seeking employment with the Employer at
the division level may apply at that level or through the
home office. Division supervisors have authority to fill
vacancies for starting job classifications within the
budget. Although the hiring procedure is not complete
until officially approved by the home office, the record
discloses no instance where such approval has been
denied when favorably recommended by division
supervisors. Local supervision, in hiring, decides
whether to interview an applicant, whether to follow
the Employer's suggested interview form, and whether
the applicant has the proper attitude for the Employer.
In addition, a physical examination report must be
submitted to a company doctor for approval before
hiring is final. The new hires are subject to a probation-
ary period before becoming regular employees. Initia-
tion of the change from probationary to permanent
status is local, and the recommendations of local super-
vision are customarily followed by the home office.
Employee performance review forms are filled out
every 6 months for employees eligible for promotion by
their immediate supervisors, whose recommendations
are almost invariably followed. Further, local super-
vision decides when and whom to promote and transfer
and what weight to give, if any, to seniority. However,
employees usually do not know about job openings and
have no bid rights. Local supervision decides when to
notify employees of an opening or when to respond to
the desire of an employee to transfer. Further, as se-
niority is not mentioned in the Employer's manual,
local supervision must use discretion- in considering it
in selection of employees. Where factors are equal,
preference may be given to employees within the same
division. Promotion to fill a vacancy is preferred over
transfer but is subject to the discretion of the local
supervisor.
Although transfers between divisions do not occur as
a result of job posting, transfers do occur at the request
of the Employer for which the Employer pays reasona-
ble moving expenses. Over a period of 3'/, years, a total
of 28 employees transferred into or out of Corpus
Christi; there were 9 intradistrict transfers in Corpus
Christi; and a total of 54 employees transferred within
the confines of a single distribution district within the
same period. The difference in the number of intradis-
trict transfers indicates the difference between the Cor-
CENTRAL POWER & LIGHT COMPANY
pus Christi distribution district , which is small and
does not require many transfers , and the rest of the
Employer 's operations , which , because of their geo-
graphical size , require a significant amount of transfers
within their own confines . The record discloses that, as
for temporary transfers , the Corpus Christi power and
transmission units perform considerable work for each
other . Moreover, they perform little work and receive
little help from the outside units.
While all company employees work a standard
workweek, normal daily activities are directed by local
supervision . Decisions as to necessary and reasonable
amounts of overtime and as to limited absence from
work are also made by local supervisors . Ordinary dis-
cipline and grievance problems are handled and settled
at the local level. Provision is made for appeal to the
home office in these matters . The manual , under the
title "Termination of Employment ," seems to give full
authority to local supervision to discharge without
mention of clearance or approval by the home office. In
order to spot employee discontents at an early stage,
meetings between employees and a representative from
the personnel department are regularly held. Safety
meetings are also held in the field but are localized and
optional in accordance with the Employer 's manual.
On the basis of the foregoing , we find that the Em-
ployer has not administratively so centralized the direc-
tion and control of its production , transmission, and
distribution operations as to require , as the Employer
urges , a finding that only a systemwide unit of
production and maintenance employees is appropriate
for purposes of collective bargaining . Thus , the Em-
ployer has separate administrative departments for its
production , transmission , and distribution operations.
There are seven power plants geographically dis-
tributed so as to be located near the larger population
concentrations. There are four power divisions whose
function is the transmission of power from the power
plants to the distribution districts and seven distribu-
tion districts engaged in the distribution of power to the
consumer , serving particular geographic areas. The
managers of these plants, divisions, and districts have
been gi,, en a substantial degree of autonomy both with
respect to their operating responsibilities and with re-
spect to labor relation matters such as the hiring, dis-
charging , and promoting of employees and the estab-
lishment of rates of pay and other conditions of
employment. Accordingly , we reject the Employer's
contention that only a systemwide unit is appropriate.
There remains the question of whether the unit
sought by the Petitioner is appropriate for purposes of
collective bargaining . That unit consists of all of the
production and maintenance employees working
within the geographical confines of the Employer's
Corpus Christi distribution district . That geographic
area contains the largest concentration of population
745
served by the Employer anywhere within its system and
is within the confines of the Corpus Christi metropoli-
tan area . The unit includes all of the production and
maintenance employees administratively assigned to
the Corpus Christi distribution district , to the Central
Power Division , and to the two power plants and their
attendant substations . In addition, the unit includes
approximately 21 employees assigned to the central
meter department and 3 employees assigned to the
communications department . Although these depart-
ments apparently have systemwide responsibilities, the
production and maintenance employees assigned to
those departments are located only in Corpus Christi.
In addition the Petitioner would include the janitors
and maintenance men assigned to the home office
which is located in the Corpus Christi area . It can thus
be seen that though the unit is not confined to a single
administrative division of the Employer , it includes all
of the production and maintenance employees of each
separate administrative division or subdivision operat-
ing within the confines of the Corpus Christi distribu-
tion district . These employees are engaged in the func-
tionally integrated task of producing and delivering
power essentially to the environs of Corpus Christ.
Employees of the two power plants, the power division
service center , and the central meter department have
considerable contact and the record shows that the
operations of these units are more closely coordinated
and integrated than they are with operations of units
operating outside of the Corpus Christi area. Inter-
change between the Corpus Christi units and others
outside of Corpus Christi is negligible.
Although the unit sought by the Petitioner does not
correspond to any single administrative unit of the Em-
ployer and each official above the local supervisory
level has under his supervision and direction employees
performing similar operations at other locations not
included in the unit, we nevertheless conclude , in view
of the degree of decentralization of the Employer's op-
erations, the geographic coherence of the requested
unit , and the fact that all production and maintenance
employees in each of the administrative subdivisions
serving the Corpus Christi area are included in the unit.
that such employees share a community of interests
sufficiently separate and distinct from that shared by
them with other employees of the Employer to warrant
their establishment in a separate bargaining unit. Ac-
cordingly , and in the absence of any union seeking to
represent these employees in a more inclusive unit, we
find that the unit requested by the Petitioner is appro-
priate for purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
In so finding, we reject our dissenting colleague's
charge that we have based our finding solely on geogra-
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
phy and extent of,organization.4 Concededly, each of
those factors has played an affirmative ,part in our unit
determination, and we believe properly so. The Board
has long recognized that geographic coherence of a
bargaining unit is an important consideration in deter-
mining whether a bargaining unit is appropriate and
workable for purposes of bargaining.' Although the
cited cases arose in other industries they are persuasive
authority for the stated proposition. Similarly, the fact
that under Section 9(c)(5) the extent that employees
have organized may not be the controlling determinant
of the appropriateness of a proposed bargaining unit
does not preclude reliance upon that factor in conjunc-
tion with other factors.' Nor do we believe our decision
herein is incompatible with the Board's oft stated view
that a systemwide unit is the optimum unit in this
industry. Before bargaining can occur on the basis of a
systemwide unit, there must be systemwide organiza-
tion of employees. There is nothing in the Act or in our
unit policies respecting this industry which requires
Petitioner to seek to represent the optimally appropri-
ate unit; it need only seek to represent an appropriate
unit of employees. Section 9(b) of the Act directs the
Board to "decide in each case whether, in order to
assure employees the fullest freedom in exercising
rights guaranteed by this Act, the unit appropriate for
purposes'of collective bargaining shall be the employer
unit, craft unit, plant unit, or subdivision thereof ..,.."
Our decision herein comports with that statutory direc-
tion and does not preclude the eventual establishment
of bargaining in the systemwide unit we and our dis-
senting colleague favor.
Unit Placement and Eligibility
The Employer contends that its senior engineering
assistant„ engineering assistants, senior storekeeper,
and storekeeper are office clericals and do not share a
community of interest with other Corpus Christi distri-
bution-district production and maintenance employees
and that its working foremen are supervisors within the
meaning of the Act and should be excluded from the
unit found appropriate.
Senior engineering assistant and engineering assist-
ants: The senior engineering assistant and engineering
assistants are located in the Corpus Christi distribution
center. Although some of their time is spent keeping
records, they spend the majority of their time designing
and drawing plans to show alterations of existing facili-
ties to be installed to accomodate the special needs of
particular customers. The job requires a high school
education and the Employer utilizes some employees
who have proved to be exceptional former linemen,
servicemen, and representatives. They have no au-
thority over any other employees.
Senior storekeeper and storekeepers: The senior store-
keeper and storekeepers are located in the Corpus
Christi distribution center and the central meter de-
partment. In the distribution center, the duty of the
storekeeper is to know the approximate quantity of
materials that the district will need and to maintain the
necessary quantity of equipment in store available for
the district to maintain full service to its customers.
They measure employees for safety shoes, type requisi-
tions, and handle materials which are stored adjacent
to their place of work.
In the central meter department, storekeepers work
in close proximity to other production and mainte-
nance employees in the central 'meter department. They
physically unload incoming meters and receive and
ship incoming and outgoing meters. Senior storekeep-
ers and storekeepers at both locations have no au-
thority over any other employees.
Working foremen: Working' foremen direct the daily
activities of the linemen. They assign work schedules,
maintain discipline among crew members, evaluate em-
ployees for wage increases, and are in full charge of
crews under their supervision. Working foremen also
make effective recommendations with respect to hiring,
transfers, vacation arrangements, and discharges.
On the basis of the foregoing, and the entire record,
we find that the senior engineering assistant, 'engineer-
ing assistants, senior' storekeeper, and storekeeper are
plant clericals, with sufficient community of interest
with other Corpus Christi distribution district em-
ployees to warrant their inclusion in the unit.' As to the
working foremen, we find that' they have authority
effectively to recommend hire, discharge, and discipline
and, thus are supervisors within'the meaning of the Act.
Accordingly, we shall exclude them from the unit.
We find the following employees of the Employer
constitute a unit appropriate for purposes of collective
bargaining within the meaning of Section 9(b) of the
4 We also reject his charge that the inclusion of the employees assigned
to the central power division but located outside the Corpus Christi met-
ropolitan area destroys the geographic coherence of the unit We include
those employees despite their work location because they are administra-
tively assigned by the central power division and they have a closer com-
munity of interest with such employees than they have with employees
'excluded from the unit.
S See, for example, L. Wiemann Company, 106 NLRB 1167, Crown Drug
Company, 108 NLRB 1126, Barr'sJewelers, 131 NLRB 235, WeisMarkets,
Inc., 142 NLRB 708, Metropolitan Life Insurance Company, 156 NLRB
1408; Drug Fair-Community Drug Co, Inc., 180 NLRB 525
Metropolitan Life Insurance Company, supra, at 1415
Act:
All production and maintenance employees em-
ployed by the Employer within the geographical
limits of Corpus Christi in' the Employer' s distri-
' Similarly, since the home office janitors and custodians share the
benefits enjoyed by the other production and maintenance personnel, per-
form maintenance functions, and are within the geographical unit sought by
the Petitioner, we shall include them in the unit
CENTRAL POWER & LIGHT COMPANY 747
bution district office, power plants and power divi-
sions, including the senior engineering assistant,
engineering assistants, senior 'storekeeper and
storekeeper, and including the following depart-
ments and facilities: Lon C. Hill Power Plant, the
Nueces Bay Power Plant, Power Division No. 1
(Central Power Division), the Corpus Christi Dis-
tribution District, Central Meter Department
within said district, and janitors and maintenance
men at the home office within the geographical
limits of Corpus Christi, and also including em-
ployees who are administratively part of the Cen-
tral Power Division but who are permanently sta-
tioned outside Corpus Christi; excluding all other
employees, working foremen, office-clerical em-
ployees, supervisors, guards and watchmen as
defined in the Act.
[Direction of Election' omitted from publication.]
CHAIRMAN MILLER, dissenting:
A majority of this panel, taking its cue from a
majority of the Board in some other recent cases involv-
ing public utilities, here furthers our departure from
precedent in unit determinations in the public utility
industry,
We for some time had a policy of requiring system-
wide units (El Pasl Electirc Co., 168 NLRB 983 (1962);
Duke Power Co., 173 NLRB 240 (1968); Public Service
' In order to assure that all eligible voters may have the opportunity to
be informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may be used to communicate with them Excelsior Underwear
Inc., 156 NLRB 1236, N.L.R B. v Wyman-Gordon Co., 394 US. 759
Accordingly, it is hereby directed that an election eligibility list, containing
the names and addresses of all the eligible voters, must be filed by the
Employer with the Regional Director for Region 23 within 7 days of the
date of this Decision and Direction of Election. The Regional Director shall
make the list available to all parties to the election No extension of time
to file this list shall be granted by the Regional Director except in extraordi-
nary circumstances Failure to comply with this requirement shall be
grounds for setting aside the election whenever proper objections are filed
Company of New Mexico, 145 NLRB 1265 (1964)),
making an occasional exception where there existed a
bargaining history in a less than systemwide unit (Mas-
sachusetts Electric Co., 137 NLRB 1230 (1962)), or
where the unit sought was a separate administrative
unit (Idaho Power Co., 179 NLRB 22 (1969)), or where
there was no functional interdependence between the
unit sought and other portions of the company's opera-
tions (Arkansas-Missouri Power Co., 152 NLRB 1600
(1965)).
Now we grant here a unit based solely on geography,
and one not even wholly consistent with that concept.
We combine portions of several administrative seg-
ments of the Company including two out of a total of
seven power stations with no regular interchange of
employees between the two and an assortment of other
employees selected on the basis of some similarity of
geographic location. Even the geographic test is not
consistently applied, since the unit includes transmis-
sion employees beyond the geographic confines of Cor-
pus Christi but does not include distribution employees
outside of Corpus Christi.
Functional interdependence, administrative divi-
sions of the employer, and other factors previously
deemed relevant in these cases are seemingly ignored in
favor of an imprecise geographical commonality, the
only factor other than extent of organization which can
be mustered to buttress this unit finding.
In my view, geography alone is not enough on which
to premise a finding of appropriateness of unit. And, of
course, Congress has told us that extent of organization
cannot be controlling. I am not prepared to abandon
the tests for unit appropriateness in the public utility
industry which our predecessors on this Board devel-
oped and which took into account the functional inter-
dependence of the industry, the Resulting public inter-
est involved, and the industry's traditionally highly
centralized control of employee relations policies and
substitute instead mere geographic, proximity and ex-
tent of organization as our' new tests.
Since that is what I believe the majority is doing here,
I must respectfully dissent.