Indianapolis Water Co.

National Labor Relations Board - Board Decisions

Jul 19, 1948

78 N.L.R.B. 411 (N.L.R.B. 1948)

In the Matter Of INDIANAPOLIS WATER COMPANY, EMPLOYER and INTER-
NATIONAL BROTHERHOOD OF FIREMEN & OILERS, A. F. OF L.,
PETITIONER
Case No. 35-UA-3.Decided July 19, 194.8
Baker & Daniels, by Messrs. Redding, Daniels and Cochran, of
Indianapolis, Ind., for the Employer.
Mr. Lynn Miles, of Indianapolis, Ind., for the Petitioner.
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, hearing in this case was held at Indian-
apolis, Indiana, on December 15, 1947, before Philip Fusco, hearing
officer. The hearing officer's rulings made at the hearing are free
from prejudicial error and are hereby affirmed., Following the hear-
ing, the Petitioner moved to reopen the record for the purpose of
adducing further evidence on the question of the appropriate unit.
As the Petitioner advances no sufficient reason for having failed to
introduce such evidence at the time of the hearing, the motion to reopen
the record is hereby denied.2
Upon the entire record in the case, the National Labor Relations
Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE EMPLOYER
Indianapolis Water Company, an Indiana corporation with its
principal office located in Indianapolis, Indiana, is engaged in pump-
ing, filtering, purifying, and distributing water for commercial and
domestic use in the city of Indianapolis and its environs. For this
purpose it maintains plants and pumping stations entirely within the
'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 -man panel consist-
ing of the undersigned Board Members [Chairman Herzog and Members Houston and
Reynolds].
= Matter of Baste Vegetable Products, Inc., 75 N. L. it. B. 815.
78 N. L. R. B., No. 51.
411
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
State of Indiana. All water used by the Employer is obtained from
points within the State of Indiana, and all its sales are made to cus-
tomers within this State. However, in 1947, the Employer purchased
raw materials valued in excess of $500,000, of which more than 50
percent was shipped to the Employer from points outside the State of
Indiana. During the same year, approximately 5 percent of the total
volume of metered water supplied by the Employer was distributed
to 6 interstate railroad companies from which was derived approxi-
mately 21/2 percent of the Employer's gross revenue during this period.
In addition thereto, approximately 20 percent of the total volume of
metered water was distributed to approximately 200 industrial con-
cerns which are concededly engaged in interstate commerce. The
revenue derived by the Employer from such business with industrial
concerns engaged in interstate commerce amounted, in 1947, to approx-
imately 10 percent of the Employer's total revenue.
The Employer admits and we find that it is engaged in commerce
within the meaning of the National Labor Relations Act.
H. THE ORGANIZATION INVOLVED
The Petitioner is a labor organization affiliated with the American
Federation of Labor, claiming to represent employees of the Employer.
III. THE QUESTION CONCERNING AUTHORIZATION OF A UNION SHOP
ELECTION
The Petitioner contends, upon the basis of documentary evidence
submitted to the Board, that more than 30 percent of the employees in
the unit desire to authorize the Petitioner to make an agreement with
the Employer requiring membership in the Petitioner as a condition
of employment in such unit.
At the hearing, the Employer stipulated that it currently recognizes
the Petitioner as the collective bargaining representative of its em-
ployees in the unit found appropriate in Section IV, infra. The Em-
ployer having recognized the Petitioner, no question affecting com-
merce exists concerning the representation of employees of the Em-
ployer in the unit hereinafter found appropriate. Accordingly, we
find that the Petitioner has satisfied the preliminary requirements for
a union-shop authorization election as set forth in Section 9'(e) (1), of
the amended Act.
IV. THE APPROPRIATE UNIT
The parties are in substantial agreement that the appropriate unit
should include all employees in the pumping, purification, and distri-
bution departments of the Employer at its Indianapolis, Indiana,
INDIANAPOLIS WATER COMPANY 413
plant, including the storekeeper and laboratory assistants, but exclud-
ing office and clerical employees, chemists, bacteriologists, guards, pro-
fessional employees, superintendents, assistant superintendents, the
master mechanic, foremen, assistant foremen, plant operators, canal
foremen, assistant maintenance foremen and all supervisors. Dis-
agreement exists only with respect to watch engineers, whom the Peti-
tioner would include in the bargaining unit. The Employer, on the
other hand, argues that, as these employees have been included in the
bargaining unit covered by recent agreements at the insistence of the
Petitioner and against the actual desires of the Employer, they should
now be excluded in accordance with an earlier Board decision involving
a similar group of employees.3
The Employer's pumping department, which is alone involved in
this proceeding, contains among other employees approximately eight
watch engineers, each of whom, through a practice of rotating assign-
ments among the three operating shifts of the Employer, is regularly
in charge of and responsible for the day-to-day activities of about
seven men comprising a single shift. Although the over-all supervision
of the pumping department and the coordination of its work with the
rest of the plant is the responsibility of the assistant superintendent,
during the evening and night shifts and on Saturdays and Sundays
when management officials are customarily absent from the plant the
watch engineers are the sole persons in authority at the pumping
station'
Aside from the function of substituting for higher management
officials at certain times, each watch engineer has daily duties which
include, among others, checking the attendance of members of his crew
and reporting absences of such members to the assistant superintendent.
In addition, he is required, at regular intervals, to fill out, with respect
to all employees on his shift, merit rating cards which are provided
by the Employer and to indicate thereon suggestions for improving
the efficiency of such employees or recommendations for their transfer
or discharge. Moreover, in an emergency situation such as a break-
down of a major piece of operating equipment, or a fire, the watch
engineer on duty has the power to put into operation, on his own ini-
tiative, similar or additional units of equipment and to determine the
rate of pumpage for such units. The record further shows that these
employees may temporarily exclude from work an employee who, be-
8 See Matter of Indianapolis Water Company , 48 N. L. R. B. 1399 , wherein the Board held
that the watch engineers were supervisors and directed that they be excluded from the bar-
0gaining ,unrt.
* When the assistant superintendent or superintendent can not be reached, the watch
engineer 's judgment and determination in a particular situation are final.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cause of intoxication or other reason, does not appear to be in proper
physical condition, and may report instances of insubordination which
can result in the dismissal of the employee concerned.'
In view of the foregoing duties, powers, and responsibilities of the
watch engineers and in consideration of the considerable degree of in-
dependent judgment which they exercise, we adopt the conclusion
reached in our earlier decision, that the watch engineers are supervisors.
We shall, therefore, exclude them from the unit hereinafter found
appropriate.6
We find that all employees in the pumping, purification and distri-
bution departments of the Employer at its Indianapolis, Indiana,
plant, including the storekeeper and laboratory assistants, but exclud-
ing office and clerical employees, chemists, bacteriologists, guards,
professional employees, superintendents, assistant superintendents,
the master mechanic, foremen, assistant foremen, plant operators,
canal foremen, assistant maintenance foremen, watch engineers,' and
all supervisors, constitute a unit appropriate for the purposes of Sec-
tion 9 (e) (1) of the Act.
DIRECTION OF ELECTION
Pursuant to Section 9 (e) (1) of the National Labor Relations Act,
as amended, an election by secret ballot shall be conducted as early as
possible, but not later than thirty (30) days from the date of this
Direction, under the direction and supervision of the Regional Direc-
tor for the Ninth Region, and subject to Sections 203.61 and 203.62 of
National Labor Relations Board Rules and Regulations-Series 5,
among the employees of Indianapolis Water Company, Indianapolis,
Indiana, in the unit found appropriate in Section IV, above, who were
employed during the pay-roll period immediately preceding the date of
this Direction, including employees who did not work during said pay-
roll 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 reinstated prior to the date of
5 The Petitioner concedes that the watch engineers have some responsibility for the
work of employees under their direction, but unlike the Employer, which asserts that the
watch engineers spend 6 hours daily in the performance of supervisory duties, the Peti-
tioner maintains that these employees devote only 1 hour each day to this work.
, Matter of Dallas Power & Light Company, 60 N. L. R. B. 1088; Matter of the Connecti-
out Power Company, 52 N. L. R. B. 1237. -
7In support of its position that the watch engineers should be included in the unit, the
Petitioner offered evidence to prove that the duties, powers, and responsibilities of these
individuals are typical of similar employees in the railroad and building trades industries,
° which evidence was excluded by the hearing officer. We find no prejudicial error in this
exclusion for the reason that the offer was irrelevant to the issue whether these watch
engineers possess supervisory authority as defined in the Act.
INDIANAPOLIS WATER COMPANY 415
the election, and also excluding employees on strike who are not
entitled to reinstatement, to determine whether or not they desire to
authorize International Brotherhood of Firemen & Oilers, A. F. of L.,
to make an agreement with Indianapolis Water Company, Indian-
apolis, Indiana, requiring membership in the aforesaid labor organi-
zation as a condition of employment in such unit.