Consumers Power Company

National Labor Relations Board - Board Decisions

Dec 22, 1938

10 N.L.R.B. 780 (N.L.R.B. 1938)

In the Matter of CONSUMERS POWER COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, LOCAL 876
Case No. R-1004
Unit Appropriate for Collective Bargaining : crew foremen , minor supervisory
employees , excluded, because of participation in unfair labor practices by
Company.
SECOND AMENDMENT TO DECISION
AND
DIRECTION OF ELECTION
December 22, 1938
On November 8, 1938, the National Labor Relations Board, herein
called the Board, issued a Decision and Direction of Election' in the
above-entitled proceedings. Utility Workers Organizing Committee,
herein called U. W. O. C., filed a motion, dated November 22, 1938,
to amend the Decision and Direction of Election by excluding crew
foremen, load dispatchers, meter readers and bill distributors, and cer-
tain local service men from the unit found to be appropriate and
from participation in the election directed by the Board; to incor-
porat e in the record of this case the record and findings in Matter of
Consumers' Power Company, a corporation and Local No. 740, United
Electrical, Radio & Machine Workers of America, Case No. C-790; 2 to
provide an opportunity for a voter to vote for either of the unions
appearing on the ballot without expressing a choice between them; to
grant oral argument upon the above matters; to permit the filing of
briefs in support of the motion; and to postpone the election, if neces-
sary. Consumers Power Company, herein called the Company, filed
an answer to this motion, dated November 28, 1938, in which it ob-
jected to the taking of any action by the Board which would delay the
holding of an election in this matter. On November 29, 1938, the
Board issued an order, copies of which were served on all of the
parties, in which it denied the motion of U. W. O. C., except in so far
19 N. L. R. B 742 An Amendment to the Decision and Direction of Election was issued
on November 23, 1935, 9 N L. R B 751. The amendment dealt with the manner of
conducting the election
D 9 N. L. R B. 701.
10 N. L. R. B., No. 65.
780
DECISIONS AND ORDERS 781
as it concerned the question of the exclusion of crew foremen from
the appropriate unit and from participation in the election.' The
order also directed the Regional Director for the Seventh Region to
segregate the ballots of the crew foremen and to keep them segregated
and uncounted until a further order concerning their disposition was
made by the Board.
On November 29, 1938, the Board also issued a notice of hearing
before the Board in Washington, D. C., on December 12, 1938, for the
purpose of oral argument concerning the question of crew foremen.
Copies of the notice of hearing were served upon the Company, U. W.
O. C., and International Brotherhood of Electrical Workers, Local
876, herein called the I. B..E. W. These three parties were likewise
granted until December 12, 1938, to file briefs.
Pursuant to the notice, a hearing was held before the Board at
Washington, D. C., on December 12, 1938. I. B. E. W. and U. W.
O. C. were represented by counsel and participated in the argument.
U. W. O. C. filed a brief which the Board has considered.
The Board, having considered the matter, hereby grants the mo-
tion of U. W. O. C. to exclude crew foremen from the unit found to be
appropriate and from participation in the election. Accordingly,
the Board hereby amends its Decision as follows :
The subsection entitled "Creww foremen" of Section V of the Find-
ings of Fact is omitted, and the following substituted therefor :
Crew foremen are clearly supervisory employees. They direct
the work of crews of from 2 to 10 men working away from head-
quarters on electric lines, gas mains, and the like. They have
great responsibility and are consulted with regard to raises,
promotions, and demotions of the men under them. There is
evidence that on some occasions they have exercised the power
to discharge. In case of curtailment of the Company's pay roll,
however, they may lose their status as crew foremen and become
simply members of the remaining crews. The Company co .-
siders them to be supervisory employees and believes that they
should be excluded.
I. B. E. W. admits crew foremen of the Company to member-
ship. It is the established practice of I. B. E. W. in the industry
generally to include foremen, to bargain for them, and to include
them in the coverage of its contracts. U. W. O. C. and its prede-
cessors likewise admitted crew foremen to membership and at-
tempted to bargain for them. It is clear that the crew foreman
were excluded from the contracts between the Company and the
C. I. O. unions solely because the Company demanded their
8 The Company 's answer was received by the Board in Washington , D. C., after the
above-described order was issued.
782 NATIONAL LABOR RELATIONS BOARD
exclusion. This was over the express opposition of the C. I. 0.
representatives. Although the first contract between the Com-
pany and U. W. 0. C., excluding crew foremen, was entered into
in June 1937, U. W. 0. C. attempted to have these employees
included as recently as February 1938.
U. W. 0. C. still numbers some crew foremen among its mem-
bership, although many who svere formerly members have
dropped out or have ceased paying dues. Crew foremen are no
longer sought as members by U. W. 0. C., which contends that
it has been unable to induce them to join because of their-exclu-
sion from the contract. Representatives of U. W. 0. C. ad-
mitted, however, that if the crew foremen had not been excluded
from the contract they would now have no objection to their in-
clusion in the appropriate unit. U. W. 0. C. has a contract with
at least one other power company which covers foremen.
In addition to the facts stated above, we take notice of the
facts found by us in our Decision in Case No. C-790.4a We there
found that crew foremen of the Company had been instrumental
in the commission by the Company of certain unfair labor prac-
tices. The findings include the following :
Thus, from the testimony of executive officers, as well as
the employees themselves, it is clear that the respondent has
conferred power upon its crew foremen which enables them
effectively to coerce the employees and to interfere with their
right to self-organization.
As described above, Markle, Parker, Sheets, and McDonald
possess even greater supervisory powers than the crew fore-
men. The latter, looking to them for guidance, unquestionably
charted their activities against the C. I. 0. and in support of
the Independent in accordance with the course so clearly de-
fined by their superiors.
In an earlier Decision 4b an important consideration in deter-
mining the propriety of excluding minor supervisory employees
from an appropriate unit was stated as follows :
The subforemen and group leaders belong to a class of minor
supervisory employees whose inclusion in or exclusion from a
unit made up of production workers must depend largely upon
the particular facts in each case. Where, as here, there is a
history of rivalry among labor organizations claiming to rep-
resent employees, it is important that the employer be free
from the imputation of coercing his employees in their choice
+e See footnote 1, supra.
4b Matter of Rem Manufacturing Company, Inc. and A F. of L. Federal Local Union
No. 20893, 7 N. L. It. B. 95.
DECISIONS AND ORDERS 783
of representatives. Since subforemen and group leaders are in
some measure identified with management, it is not improbable
that their participation in a controversy between rival unions
will lead to charges of employer interference. We will, there-
fore, exclude subforemen and group leaders, as well as general
foremen, from the unit.
It has been our practice to exclude minor supervisory em-
ployees where one of the participating labor organizations de-
sires such exclusion. Although U. W. 0. C. has admitted crew
foremen' and has attempted to bargain for them in the past, we
believe that the activities of crew foremen on behalf of the Com-
pany, as found by us in Case No. C-790 to have occurred, justify
the present position of U. W. 0. C. We will accordingly exclude
crew foremen from the appropriate unit.
The second paragraph of the subsection entitled "Plant super-
visors" of Section V of the Findings of Fact is amended so that it
will read as follows :
It thus appears that, as in the .case of crew foremen, the plant
supervisors have duties of a clearly supervisory nature. I. B. E.
W. admits them to membership, but U. W. 0. C. does not. We
will consequently adhere to our usual practice of excluding
minor supervisory employees, where one of the participating
labor organizations desires such exclusion.
The subsection entitled "Other supervisory employees" of Section
V of the Findings of Fact is amended by altering the last sentence
thereof so as to read as follows :
As used hereinafter, the term, supervisory employees, means
employees who have the power to hire or discharge or the power
to recommend hiring or discharging, and includes general fore-
men, assistant foremen, plant supervisors, crew foremen, and
all other employees whose status is similar to or superior to that
of crew foremen.
The last paragraph of Section V of the Findings of Fact is
amended to read as follows :
We find that all the employees of the Company, excluding
general and assistant foremen, plant supervisors, crew foremen,
and other supervisory employees except as expressly included
below, office employees, office building janitors and watchmen,
collectors, connected load inspectors, electrical, mechanical, and
civil engineers, efficiency men and junior engineers, draftsmen,
surveyors, chemists, architects, temporary common laborers
hired for a specific job and for not more than 6 months, part-
784 NATIONAL LABOR RELATIONS BOARD
time local service men and local service men who do not perform
mechanical work in the regular course of employment, and
storekeepers with supervisory powers who do not ordinarily
do mechanical work, but including load dispatchers, meter
readers and bill distributors, plant janitors and watchmen, and
storekeepers other than those excluded above, constitute a unit
appropriate for the purposes of collective bargaining and that
said unit will insure to employees of the Company the full bene-
fit of their right to self-organization and to collective bargain-
ing and otherwise effectuate the policies of the Act.
The second conclusion of law is amended by inserting after the
words, "plant supervisors," the words, "crew foremen," and by omit-
ting after the words, "but including," the words, "crew foremen."
The Board hereby amends its Direction of Election by inserting
after the words, "plant supervisors," the words, "crew foremen," and
by omitting after the words, "but including," the words, "crew
foremen."
In our Order of November 29, 1938, we directed the Regional Di-
rector for the Seventh Region to segregate and keep uncounted the
ballots of crew foremen. The Regional Director is hereby directed
not to receive any ballots from crew foremen of the Company in the
election in this proceeding and to disregard any ballots already cast
by such crew foremen.
The Acting Regional Director having notified the Board that ad-
ditional time is required for the holding of the election, the Board
hereby amends its Direction of Election, as amended, by striking
therefrom the words, "within sixty (60) days from the date of this
Direction" and substituting therefor the words, "within seventy
(70) days from the date of this Direction."