Gardner Electric Light Co.

National Labor Relations Board - Board Decisions

Mar 17, 1945

60 N.L.R.B. 1287 (N.L.R.B. 1945)

In the Matter of GARDNER ELECTRIC LIGHT COMPANY and BROTHERHOOD
OF UTILITY WORKERS OF NEW ENGLAND, INC.
In the Matter of GARDNER ELECTRIC LIGHT COMPANY and BROTHERHOOD
OF UTILITY WORKERS OF NEW ENGLAND, INC.
Cases Nos . 1-R-g23Pd and 1-R-2442, respectively .Decided March 17,
1945
Mr. W. R. McKeough, of Gardner, Mass., Mr. H. S. Holcombe, of
Leominster, Mass., Mr. E. Cr. Twoney, of Worcester, Mass., and Mr.
John E. Teagan, of Boston, Mass., for the Company.
Mr. William E Gallagher, of Province, R. I., and Mr. William J. F.
- Davis, of Fall River, Mass., for the Utility Workers.
Mr. John E. Regan, of Boston, Mass., for the IBEW.
Mr. Thomas A. Ricci, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon separate petitions duly filed by Brotherhood of Utility
Workers of New England, Inc., herein called the Utility Workers, each
alleging that a question affecting commerce had arisen concerning the
representation of employees of Gardner Electric Light Company,
Gardner; Massachusetts, herein called the Company, the National
Labor Relations Board consolidated the cases and provided for an
appropriate hearing upon due notice before John W. Coddaire, Trial
Examiner. Said hearing was held at Boston, Massachusetts, on
February 1, 1944. The .Company, the Utility Workers, and Inter-
national Brotherhood of Electrical Workers, AFL, herein called the
IBEW, appeared and participated. All parties were afforded full
opportunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing on the issues. The Trial Examiner's
rulings made at the hearing are free from prejudicial error and are
hereby affirmed. All parties were afforded an opportunity to file briefs
with the Board.
60 N. L. R. B., No. 220.
1287
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
Gardner Electric Light Company, a Massachusetts corporation with
its office and principal place of business at Gardner, Massachusetts, is
a subsidiary of the New England Power Company. It is engaged in
the distribution and sale of light and power to consumers in Gardner,
Massachusetts, and surrounding communities. The Company buys
substantially all of its electrical energy from the New England Power
Company, which generates electrical power at its hydroelectric plants
on the Deerfield River in Massachusetts and Vermont, and on the Con-
necticut River in Vermont and New Hampshire. During the year 1943,
the Company purchased 29,G43,369 kilowatt hours of electrical power,
.and of this amount 29,515,000 kilowatt hours was purchased from
the New England Power Company. The Company's total sales of
electrical power during the year 1943 amounted in value to $840,241.58.
The Company admits that it is engaged in commerce within the
meaning of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
Brotherhood of Utility Workers of New England, Inc., is a labor
organization admitting to membership employees of the Company.
International Brotherhood of Electrical Workers, affiliated with
the American Federation of Labor, is a labor organization admitting
to membership employees of the Company.
III. THE QUESTIONS CONCERNING REPRESENTATION
On December 20, 1944, the Utility Workers requested recognition
from the Company as the exclusive bargaining representative of all
its employees, excluding supervisory personnel. The Company stated
that it was of the opinion that an existing contract with the IBEW,
covering employees in four of its departments, prevented it from recog-
nizing the Utility Workers as the bargaining representative of all its
employees until the Utility Workers should be certified by the Board
in an appropriate unit.
Bargaining relations between the Company and the IBEW started
in 1937, and the number of employees covered by their annual contracts
since that year has increased from time to time as the IBEW obtained
representation among employees in various departments and presented
proof thereof to the Company. Their last contract, covering all em-
ployees in the Company's distribution, substation, meter and meter
reading departments, was dated May 1, 1944, and provided that it was
to commence as of the first day of February 1944, and to "continue until
February 1, 1945, at the expiration whereof the term should auto-
GARDNER ELECTRIC LIGHT COMPANY 1289
matically continue for a period of 1 year and so on for like 1-year
periods unless terminated,in accordance with the provisions of any
of the following sections: . . . Section D. On the last day of Janu-
ary 1945 or on the last day of January of any year thereafter, by a
written notice from either party to the other at least 75 days prior to
such date of termination." It also provided that written notice of
"proposed amendments" could be given by either party prior to No-
vember 1, 1944, or November 1 of any year thereafter. Prior to No-
vember 1, 1944, the IBEW gave notice to the Company of "proposed
amendments" to the contract. Neither the Company nor the IBEW
raises=the contract as a bar to the instant proceeding.
Statements of a Board agent, introduced into evidence at the hear-
ing, indicate that the Utility Workers represents a substantial mun-
ber of employees in the units hereinafter found appropriate.'
We find that questions affecting commerce have arisen concerning
the representation of employees of the Company, within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
IV. THE APPROPRIATE 'UNITS
The Utility Workers requests two separate units for collective bar-
gaining purposes, one consisting of all the Company's treasury de-
partment (office and clerical) employees,' except supervisory per-
sonnel, and another comprising all the Company's distribution and
maintenance employees, except office, clerical, and supervisory per-
sonnel. The Company agrees generally regarding the scope of the
proposed units. The IBEW takes no position concerning the pro-
posed office and clerical unit, as it does not seek to represent those
employees. However, with respect to the second unit sought by the
Utility Workers, the IBEW `would exclude the service department
employees because they have not been included in the contracts be-
tween the IBEW and the Company. There is further disagreement
among the parties with respect to certain specific employees whom
we shall discuss below.
A. The office and clerical unit
The Company employs a storekeeper who is part of the treasury
department . The Company and the IBEW contend that he is a
' The Field Examiner reported that the Utility Workers submitted 11. authorization
cards bearing the names of persons listed on the Company ' s pay roll -for the period ending
December 23, 1944, which contained the names of 29 employees in the unit alleged to be
appropriate by the Utility Workers in Case No. 1-R-2232 (treasury department employees)
The Field Examiner also reported that the Utility Workers submitted 12 authorization
cards bearing the names of persons listed on the Company ' s pay roll of December 23, 1944,
which contained the names of 17 employees in the unit alleged to be appropriate by the
Utility Workers in Case No i-R-2242 ( distribution and maintenance employees).
The IBEW relies upon its contract dated February 1, 1944, to establish its interest in
Case No 1-R-2242
.2 The treasury department is comprised of office and clerical employees.
129,0 • DECISIONS _OF, NATIONAL LABOR RELATIONS BOARD
clerical employee and should be included in the office and clerical
unit, while the Utility Workers would place him in the distribution
and maintenance unit. In normal times the storekeeper supervises
three or four clerks in the storeroom. At present, due to wartime
shortages of materials, he is alone in the storeroom. He requisitions
supplies, ships and receives stock, makes ledger entries of new and
returned stock, and prepares inventories for the storeroom. He also
has a number of other occasional duties. He ha,s not been. included
in the Company's contracts with the IBEW. We are.of the opinion
that the storekeeper is more readily identified with office and clerical
employees, who are also in the treasury department, than with the
distribution and maintenance employees. We shall, therefore, in-
clude him in the office and clerical unit.
We find that all the Company's treasury department (office and
clerical) employees, including the storekeeper, but excluding all super-
visory employees with authority to hire, promote, discharge, disci-
pline, or otherwise effect changes in the status of employees, or effec-
tively recommend such action, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9
(b) of the Act.
B. The distribution and maintenance unit
Service department employees:.
The Company maintains a service department of four employees :
a refrigerator service man, an appliance service man, a service and
utility man, and a janitor. The IBEW urges that these employees be
excluded because they have never been included in its contract with
the Company. The Utility Workers would include them and the
Company takes a neutral position regarding their inclusion.
We are of the opinion that the IBEW's position is well taken.
While the record does not disclose that such employees have interests
or duties which would of necessity prevent their inclusion, in the ab-
sence of any compelling circumstances warranting a departure there-
from, we shall adhere to our usual practice and not disturb the con-
tract unit established as a result of collective bargaining between the
Company and the IBEW.3 Accordingly, we shall exclude the re-
frigerator service man, the appliance service man, the service and
utility man, and the janitor from the distribution and maintenance
unit. Our finding in this respect, however, shall not preclude a later
determination, based upon a new petition and-, a sufficient showing
of representation, that these employees may be offered an opportunity
to vote as to their inclusion in the distribution and maintenance unit
herein found appropriate.
' Matter of C J Petersen and C F. Lytle , d/b/a Petersen and'Lytle , 60 N L R . B. 1070.
GARDNER ELECTRIC LIGHT COMPANY '1291=
Assistant distribution engineer:
The Utility Workers would include the assistant distribution en-
gineer as a distribution employee , while the IBEW contends that he
should be excluded from this unit as a clerical employee with super-
visory authority . The Company takes no position regarding his in-
clusion and states that it knows of no reason why he should not be
bargained for. The assistant distribution engineer is in the distribu-
tion department , works under the distribution engineer , and divides
his working time as follows : 20 percent typing out work orders; 70
percent working on maps and records, light transformers and all other
plant equipment ; 5 percent doing actual field engineering ; and 5 per-
cent preparing pole inspection reports. On occasions he substitutes
for the distribution engineer but he always receives the same or less
pay than linemen and has no authority to hire or discharge any em-
ployee. The IBEW states that it has not bargained for him, but the
Company considers him as covered by the existing contract, which
includes the -distribution department . In view of these facts, we are
of the opinion that the assistant distribution engineer is not a super-
visory employee within the meaning of our usual definition of the term
and that his interests are more closely related to distribution than to
clerical work. We shall , therefore , include him in the distribution and
maintenance unit.
Substation maintenance man:
The IBEW and the Company urge that this employee be excluded
as a supervisory employee , while the Utility Workers would include
him. Although listed on a company chart of December 1944 as a
substation maintenance man, the Company classifies him as a super-
isor of switchboard operators and engineers . Admittedly he super-
v ises four substation operators although he only devotes about one-
third of his working time to such supervision . His additional duties
include surveys of voltage and load in customer's plants , tests of light-
ning arresters , trouble shooting on- company lines and meters , switch
examinations at unattended substations , and maintenance of street
lights. These additional functions are sometimes performed with a
crew of men whom the substation maintenance man supervises. The
evidence indicates that the Company would give great weight to
recommendations of the substation maintenance man regarding the
status of other employees . We find that this employee possesses
sufficient indicia of supervisory - status to warrant his exclusion.
Truck foremen:
The Utility Workers and the Company urge the exclusion of two
truck foremen as supervisory employees , while the . IBEW would in-
clude them . Although the contract between the IBEW and the
Company specifically sets forth the agreed wage rate for truck fore-
1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
men, the Company insists that it has continuously refused to bargain
with respect to them in dealings with the IBEW. One of the truck
foremen devotes about 75 percent of his time to supervising a line
truck crew of from two to five employees, and the other devotes almost
all of his time to similar supervision. Truck foremen earn approxi-
mately 25 percent more than their crew workers; in addition, they
receive a weekly wage; while crew members are hourly paid. It ap-
pears from the record that the Company would give considerable
weight to their recommendations regarding the status of other em-
ployees. We find that truck foremen are supervisory employees
within the meaning of our customary definition, ancl,we shall exclude
them from the unit. '
We find that all the Company's distribution and maintenance em-
ployees, including the assistant distribution engineer, but excluding
the refrigerator service nian, the appliance service man, the service
and utility man, the janitor, the substation maintenance man, truck
foremen, and all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, constitute
a unit appropriate for the purposes of collective bargaining within
the meaning of Section 9 (b) of the Act. ,
V. TITS DETERMINATION OF REPRESENTATIVES
We shall direct that the questions concerning representation which
have arisen be resolved by elections by secret ballot among the em-
ployees in the appropriate units who were employed during the pay-
roll period immediately preceding the date of the Direction of Elec-
tions herein, subject to the limitations and additions set forth in the
Direction.
In each of the towns of War-,vich, Shutesbury and Royalston, situ-
ated in the vicinity of Gardner, Massachusetts, the Company employs
a part-time business representative. The Company and the IBEW
urge that these employees be declared ineligible to participate in an
.election among the distribution and maintenance employees because
they do not have a sufficient interest in the choice of a bargaining
representative. The Utility Workers contends that they should be
eligible to vote. These employees read customers' meters, collect ac-
counts, patrol and replace street lights and handle trouble calls in
their respective towns. They are bonded and subject to night call.
During the year 1944 the Warwich representative worked 1,122 hours,
the Shutesbury representative 753 hours, and the Royalston repre-
sentative 268 hours. We are of the opinion that these employees leave
4 See Matter of Boston Edison Company, 51 N. L . R. B. 118.
GARDNER ' ELECTRIC LIGHT, COMPANY 1293
a sufficient interest in, the selection of a collective bargaining repre-
sentative to be eligible to vote in the election among distribution and
maintenance employees.
DIRECTION OF ELECTION
By virtue of and pursuant to the power vested in the National
Labor Relations Board by Section 9 (c) of the National Labor Rela-
tions Act, and pursuant to Article III, Section 9, of National Labor
Relations Board Rules and Regulations-Series 3, as amended, it is
hereby
DinECrFD that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Gardner Electric
Light Company, Gardner, Massachusetts, separate elections by secret
ballot shall be conducted as early as possible, but not later than sixty
(60) days from the date of this Direction, under the direction and
supervision of the Regional Director for the First Reg on, acting in
this matter as agent for the National Labor Relations Board, and
subject to Article III, Sections 10 and 11, of said Rules and Regula-
tions, among the following employees who were employed during the
pay-roll period immediately preceding the date of this Direction, in-
cluding employees who did not work during said pay-roll period be-
cause they were ill or on vacation or temporarily laid off, and includ-
ing employees in the armed forces of the United States who present
themselves in person at the polls, but excluding those employees who
have since quit or been discharged for cause and have not been re-
hired or reinstated prior to the date of the elections:
(1) All treasury department (office and clerical) employees, in-
cluding the storekeeper, but excluding all supervisory employees with
authority to hire, promote, discharge, discipline, or otherwise effect
changes in the status of employees, or effectively recommend such
action, to determine whether or not they desire to be represented by
Brotherhood of Utility Workers of New England, Inc., for the pur-
poses of collective bargaining; .
(2) All distribution and-maintenance employees, including the as-
sistant distribution engineer, but excluding the refrigerator service
man, the appliance service man, the service and utility man, the jani-
tor, the substation maintenance man, truck foremen, and all other
supervisory employees with authority to hire, promote, discharge,
discipline or otherwise effect changes in the status of employees, or
effectively'recommend such action, to determine whether they desire
to be represented by Brotherhood of Utility Workers of New England,
Inc., or by International Brotherhood of Electrical Workers, A. F. L.,
for the purposes of collective bargaining , or by neither.