New Orleans Public Service, Inc.

National Labor Relations Board - Board Decisions

Dec 19, 1974

215 N.L.R.B. 834 (N.L.R.B. 1974)

834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
New Orleans Public Service , Inc. andCooperative En-
gineering Department Employees Association of
New Orleans , Petitioner . Case 15-RC-5441
December 19, 1974
DECISION AND DIRECTION OF ELECTION
BY MEMBERS FANNING, KENNEDY, AND PENELLO
-Upon a petition filed under Section 9(c) of the Na-
tional Labor Relations Act, as amended, a hearing was
held before Hearing Officer R. Kelly Baird. Following
the hearing and pursuant to Section 102.67 of the Na-
tional Labor Relations Board Rules and Regulations
and Statement of Procedure, Series 8, as amended, and
by direction of the Regional Director for Region 15, the
case was transferred to the National Labor Relations
Board for decision. Thereafter, the Employer filed a
brief which has been duly considered.
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 au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They 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 Petitioner is a labor organization within the
meaning of the Act.'
3. A question affecting commerce exists concerning
the representation of employees of the Employer within
the meaning of Section 9(c)(1) and Section 2(6) and (7)
of the Act.
The Employer is a public utility engaged in the busi-
ness of providing electricity, gas, and transit service to
customers in New Orleans, Louisiana. The Petitioner
seeks a unit of all the Employer's technical employees
in its engineering department. The Employer would
include in a seven-department unit all the employees it
alleges are its technical employees. Should the Board
find that a unit broader than simply the engineering
department is appropriate, Petitioner contends that
At the hearing, the Employer stated it had insufficient evidence to enter
into a stipulation that Petitioner is a labor organization within the meaning
of the Act. The record shows that Petitioner has a formal constitution and
bylaws, its members pay dues and elect officers, and Petitioner holds mem-
bership meetings at which the employees participate Although , at the time
of the hearing , Petitioner had not entered into any collective -bargaining
agreements with the Employer, its purpose is to bargain collectively with
regard to wages, benefits, and working conditions We find Petitioner is a
labor organization within the meaning of Sec 2(5) of the Act Jackson
Manor Nursing Home, Inc. and/or Isaac Mizrahi d/b/a Jackson Manor
Nursing Home, et at, 194 NLRB 892, 894 (1972), and cases cited at fn 10
therein
certain of these additional employees should be ex-
cluded and Petitioner reserves its position on the bal-
ance of these employees. Also, while the parties stipu-
lated to certain inclusions and exclusions of personnel
in the engineering department,2 they disagree on the
status of certain other employees in the engineering
department, with the Employer, contrary to Petitioner,
wishing to include one category' and exclude various
other categories.'
The corporate. structure of the Employer is as fol-
lows. Under the board of directors is the president.
Directly under the president there are six vice
presidents.' Each vice president has a particular field
over which he has control and responsibility. There are
vice presidents in charge of operations and engineering,
marketing, administration, finance, community rela-
tions, and legal matters. Under each vice president
there are various departments and under the depart-
ments there may be subunits which are called divisions.
The employees whom Petitioner seeks, the engineer-
ing department technical employees, are under the ju-
risdiction of the senior vice president in charge of oper-
ations and engineering . The engineering department
has six divisions: electrical engineering, electric system
planning , electric distribution , gas, mechanical engi-
neering, and utilization . In addition to the engineering
department the following departments are also under
the jurisdiction of the senior vice president in charge of
operations and engineering: electric power, electric dis-
tribution, gas, and transit.'
While Petitioner seeks the technical employees in the
engineering department, the Employer would also in-
clude employees it claims are technical employees from
the electric distribution department, the gas depart-
ment, the electric power department, and the transit
department. The Employer would also include, as tech-
nical employees, certain employees from the marketing
services department, which is under the jurisdiction of
the vice president in charge of marketing, and certain
employees from the community relations department,
which is under the jurisdiction of the vice president in
charge of community relations.
2 Senior corrosion mitigation technicians , corrosion mitigation techni-
cians, senior estimator, engineering aides, senior design technicians, senior
draftsmen , intermediate draftsmen and the draftsman 6 were included and
the vice president, managers , administrative assistants, executive secretary,
secretaries, design supervisors , supervising engineers, senior engineers, en-
gineers, assistant engineers , associate engineers, construction superintend-
ent, technical clerks, and receptionist II were excluded
3 Inspectors in the engineering department 's electrical engineering divi-
sion
4 Junior draftsman , draftsmen , intermediate draftsmen Theriot and Beale,
gas record coordinator, and gas main and service record clerks
5 One of these six has the title of senior vice president . The others carry
the title of vice president
6 While certain of these four departments bear the same name as certain
divisions of the engineering department, they are separate entities This also
holds true for certain divisions of these four departments which also bear
the same name as certain other divisions of the engineering department.
215 NLRB No. 100
NEW ORLEANS PUBLIC SERVICE, INC 835
The Employer 's engineering department is responsi-
ble for the original design and the contracting for the
construction of all the Employer's facilities. It also pro-
vides professional and technical assistance (for exam-
ple, the conducting of studies) for other departments of
the Employer as requested . Within the engineering de-
partment, the gas division is responsible for all the
engineering requirements related to the Employer's gas
operations. This includes the design of new facilities as
well as the replacement of old ones. The electric system
planning division is responsible for ascertaining the
needs of the Employer's electric transmission and dis-
tribution system in the forthcoming years. It is also
responsible for coordinating the Employer's various
programs with other public utilities within the Em-
ployer's geographical area . The electric engineering
division is responsible for the design of particular elec-
trical facilities , such as transmission lines or electric
generators in power plants or substations . The mechan-
ical engineering division is responsible for the design of
the various mechanical features within a power plant
such as the boilers, turbines, and piping. The electric
distribution division is responsible for the design of the
Employer's electric distribution system. The utilization
division does the architectural work that is associated
with any of the new design projects of the Employer.
This division also does consultation work with present
customers of the Employer who are experiencing prob-
lems in their service and estimates the requirements for
any new services that the Employer may be contem-
plating undertaking.
With regard to the various departments from which
the Employer wishes to include other employees, the
electric power department is responsible for the actual
operation and maintenance of the Employer's electric
generating facilities. The Employer has 3 power plants
and over 20 substations producing electricity for distri-
bution and these come under the aegis of the electric
power department. The electric distribution depart-
ment is responsible for the operation and maintenance
of the Employer's distribution facilities, which transmit
the electricity after it is generated at the power plants.
The gas department is responsible for the distribution
of gas to the Employer's customers and to the gas main
distribution system upon receipt of the gas from the
Employer's supplier. The transit department is respon-
sible for the operation, and maintenance of the Em-
ployer's transit system, which includes buses and
streetcars, and the maintenance of schedules for the
transit fleet. The marketing department is responsible
for maintaining liaison with the Employer's customers
and is involved in marketing , planning and advertising,
sales , training , and displays and exhibits . The com-
munity relations department is responsible for advertis-
ing, public information, and public relations.
The record reveals various working relationships be-
tween several divisions of the engineering department
and various of the operating departments under the
senior vice president for operations and engineering.
The engineering department's electric distribution divi-
sion works with the electric distribution department on
the design of new electrical installations and the modifi-
cation of existing ones . After the former designed an
installation , the latter would then do the physical work
of erecting it. In accomplishing this purpose, the elec-
tric distribution department must feed facts and infor-
mation on operating requirements to the electric distri-
bution division in order that the division can properly
design whatever facility is needed to the proper specifi-
cations. The engineering department also works with
the electric distribution department in investigating
voltage complaints that are referred by the electric dis-
tribution department.
Likewise, the engineering department's electric engi-
neering division works with the electric power depart-
ment on the design and operating characteristics of
electric power substations. Again, the engineering de-
partment must be apprised by the electric power de-
partment of sufficient information for the engineering
department to adequately design a facility that meets
the electric power department's requirements.
The engineering department's electric system plan-
ning division, which is charged with planning the elec-
trical growth of the Employer's system, works with the
electric power department, which is charged with run-
ning the generating plants, in ensuring that there is
adequate electrical capacity throughout the Employer's
system at all times.
The engineering department's mechanical engineer-
ing division works closely with the electric power de-
partment on the design of foundations, piping, oil stor-
age tanks , and pumping equipment that goes into the
power plants over which the electric power department
has control.
The engineering department' s gas division works
with the gas department on the design of gas main
extensions and the repair of already existing mains. As
described supra, regarding the Employer's electrical
operations, the gas operations of the Employer require
cross-communication between the gas division and gas
department with the latter feeding the former its oper-
ating requirements so that the proper facilities can be
designed and maintained.
The engineering department's utilization division,
which is the Employer's architectural arm, works with
all the various operating departments on all aspects of
building design. This division also investigates prob-
lems that customers are experiencing in their service as
these are referred by the marketing department.
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
J
There appears to be little contact between the engi-
neering department and the transit department, outside
of the utilization division's possible work on any new
buildings the transit department might need or any
work on the tracks of the Employer's streetcar system.
Similarly there is very little working relationship be-
tween the engineering department and the community
relations department.
The Employer presently has collective-bargaining
agreements with a number of unions in various of its
departments. There are separate labor organizations
representing employees in the electric distribution, gas,
and electric power departments and two other labor
organizations representing employees in the transit de-
partment. Additionally there is a labor organization
representing employees in the stores department,
which is under the vice president for administration.
Responsibility for the formulation and administra-
tion of collective-bargaining strategies is vested in the
Employer's senior vice president, Cade, but the in-
dividual department heads represent the Employer in
bargaining sessions. The Employer's personnel depart-
ment has general charge over labor relations policies
affecting noncontract (i.e., those not within a bargain-
ing unit) employees. All of the Employer's hiring is
done through its personnel department which screens
all applicants and then refers to the appropriate depart-
ment those it finds qualified. Also, all the Employer's
employees receive virtually identical benefits including
group hospitalization, life insurance, and holidays.
The bulk of the Employer's engineering department
is located in its general office building.' The bulk of
the personnel in the Employer's operating depart-
ments, i.e., electric power, electric distribution, gas,
and transit, are in various locations away from the
main office building. The marketing department em-
ployees and those of the community relations depart-
ment are housed in the general office building or the
annex directly behind the main building.
It is the Board's policy to join in a single unit all
technical employees similarly employed8 and to find a
unit of technical employees inappropriate where it does
not include all of the employees in that category. How-
ever, if the technical employees in the proposed unit
perform functions which are sufficiently distinct from
those of other employees, this will justify their inclu-
sion in a separate unit to the exclusion of other em-
ployees who may be technical employees.'
From the facts outlined above, we conclude that the
functions of the engineering department are sufficiently
distinct from those of the transit department, the mar-
7 However , the senior estimator and corrosion mitigation technicians,
who are included in the unit by stipulation , are out of the main building the
greater part of their workday
8 Aerojet General Corporation, 131 NLRB 1094 (1961)
9 Cf General Dynamics Corporation, 184 NLRB 621 (1970)
keting services department , and the community rela-
tions department so as to warrant th&'exclusion of any
employees , even if technical , from these departments in
a unit composed of engineering 'department technical
employees . 10 However , the functions of the Em-
ployer 's electric distribution , electric power , and gas
departments are such that any technical employees in
those departments may be appropriately included with
technical employees in the engineering department. We
now proceed to an analysis of the technical status of the
various employees whose status is still in question.
The Board has defined technical employees as "em-
ployees who do not meet the strict requirements of the
term `professional employee' as defined in the Act but
whose work is of a technical nature involving the use
of independent judgment and requiring the exercise of
specialized training usually acquired in colleges or
technical schools or through special courses .s11 Ap-
plying this standard , we initially consider the status of
those employees in the engineering department itself
whose inclusion is contested.
The Employer, contrary to Petitioner , would include
the inspectors who work in the engineering depart-
ment's electrical engineering division . The inspectors
are the Employer 's liaison men in the field . The Em-
ployer contracts for the construction of various facili-
ties and the inspectors monitor this work , indicating to
the foreman whether the-work done is in accord with
the construction drawings , and the Employer's safety
practices and those required by the law. The inspectors
utilize their own judgment in their work . They have
had courses relating to electricity and construction ma-
terials and must have knowledge of electric and city
building codes . Most have had trade school training.
The inspectors are technical employees.
The Petitioner, contrary to the Employer, would in-
clude the following classifications in the engineering
department:
Junior draftsman: This employee is engaged in the
tracing and filing of blueprints about 10 percent of his
worktime and during the balance he undertakes minor
corrective work on drawings where all information is
supplied . No special training is required for his work.
The junior draftsman is not a technical employee.
10 We note also in making this determination that the Employer itself has
a history of recognizing unions on a departmental as opposed to an overall
unit basis.
Thus , we make no decision as to the technical status of the transit depart-
ment schedule planning division's supervisor , schedule makers, traffic
transit coordinator, head schedule maker, study coordinator, research assist-
ant, the transit department maintenance division 's track inspector , the mar-
keting services department's marketing assistant 4, and head display man,
the community relations department advertising division 's commercial art-
ist, photographer, and production coordinator, all of whom the Employer
wishes to include as technical employees
ii Litton Industries of Maryland, Incorporated, 125 NLRB 722,
724-725 (1959)
NEW ORLEANS PUBLIC SERVICE, INC.
Draftmen: About 90 percent of the time of these
draftsmen , who are also called record draftsmen, is
spent modifying existing records , based on information
given them in complete detail by a more experienced
member of the engineering department . They also do
tracing work of existing drawings , and they fold and
file prints . The minimum qualification for this job is a
high school education with some drafting courses.
Some facility with pencil and lettering is needed.
While we note that some employees in this classifica-
tion have had quite a bit more than the minimum train-
ing and practical experience that the Employer re-
quires, we conclude that their particular job function
does not reach the technical level that the Board re-
quires and we find the draftsmen are not technical
employees.
Intermediate Draftsman Theriot: Theriot 's duties
consist of updating the gas record cards of the gas
department . Each card has a very simple sketch of a
portion of the Employer 's gas system and Theriot ei-
ther redraws cards worn with age or puts new informa-
tion on them . All information is furnished him and he
simply makes the entries . Theriot had had no training
in drafting at the time he was hired as this work re-
quires little such training . Theriot 's job title is solely to
afford him a salary commensurate with his years with
the Employer . He is not a technical employee.
Intermediate Draftsman Beale: Beale performs the
same class of record work as the other record drafts-
men although he does do more developing of prints.
The latter is not technical work and involves putting a
tracing in a machine and pressing a button . Beale also
does some microfilming but no exercise of technical
judgment is required for this work.
Despite the limited technical nature of Beale 's duties
as they were described at the hearing , the Employer
admits that Beale has had a number of years of techni-
cal experience and has not been given more technical
work as yet because the Employer wants Beale to famil-
iarize himself with the Employer's operations first.
Based on his job duties as described at the hearing,
however , we find Beale is not a technical employee.
Gas main and service record clerks: These clerks are
located in the gas division and it is their duty to keep
the gas main and service record cards up to date. As
maintenance work is done , slips describing this Work
are made out and are sent to the engineering depart-
ment where it is the job of the clerks to update the gas
record cards using the information on these slips. Addi-
tionally , the clerks handle phone requests for informa-
tion about the gas 'system from various gas department
personnel . The clerks find this information on the re-
cord cards and relay it to the caller . The job requires
no special training or knowledge, with a high school
837
education the desired level of schooling . These clerks
are not technical employees.
Gas record coordinator: This employee is located in
the gas division . The gas record coordinator supervises
the work of the gas main and service record clerks. His
primary job is to see that the clerks keep the gas record
cards up to date by posting information regarding the
condition of the gas system . While it appears that the
gas record coordinator may be a supervisor , it is clear
in any event that his work is not of a technical nature
and we find he is not a technical employee.
The Employer claims that the following employees
from the electric distribution , electric power , and gas
departments are technical employees who should be
included in the unit.
Communications engineer in the electrical distribu-
tion department 's meter and service division: This em-
ployee is responsible for the installation , operation,
testing, calibration , and repair of radio base stations,
mobile radios , and various electronic equipment used
in the electric distribution department . He has a high
school education plus specialized training in electronics
and radio and he must have an FCC radio operator's
license and a thorough knowledge of FCC regulations.
The communications engineer works at least 80 per-
cent of his time with one other person, who is his
assistant . He gives the assistant his assignments and,
should the assistant not be fulfilling his job responsibili-
ties, the communications engineer could recommend
the assistant 's termination and the recommendation
would most probably be followed . The communica-
tions engineer can grant overtime to his assistant.
Technical assistant in the electrical distribution de-
partment 's overhead lines division: The technical assist-
ant provides aid to the division 's engineers and foremen
in all phases of construction , maintenance , and opera-
tion of the overhead power distribution system. He
performs qualitative tests on equipment , investigates
abnormal voltage conditions on the system and takes
measures to correct them, and investigates outages to
locate faults . He also prepares job estimates on over-
loaded transformers and assists in reviewing construc-
tion estimates and in preparing work procedures.
The technical assistant must have a high school edu-
cation plus special technical school courses in elec-
tricity . He determines without direction the course of
a particular problem and how it should be corrected.
The technical assistant does not directly supervise any-
one and while he may give instructions to foremen who
relay these instructions to the crew , his instructions are
on technical matters and extend from his expertise in
this area . The instructions do not indicate a supervisory
capacity.
The technical assistant spends 10-15 percent of his
working time in contact with the engineering depart-
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment in consultation with the engineers regarding tech-
nical information on the overhead distribution system.
The technical assistant also spends about 30 percent of
his time handling voltage complaints, which is a job
also performed by employees in the engineering depart-
ment.
Technical assistant in the electric distribution depart-
ment's underground lines division: The technical assist-
ant conducts lab and field tests on new products, and
locates cable faults on all primary, secondary, and
supervisory control cables and street lights. He also
maintains test instruments and those that are used in
the underground lines division and in the transformer
shop section. He assists in the preparation of job esti-
mates and service increases and removals and in the
preparation of work procedures.
He must have a high school education plus special
technical school courses in electricity. As with the tech-
nical assistant in the overhead lines division, he pro-
vides technical instruction to the crew foremen who
then relay the instruction to the crew.
He is engaged about 15-20 percent of his working
time in contact with the engineering department on
matters relative to the underground distribution system
and also spends about 20 percent of his time working
on voltage complaints, which engineering department
employees also do.
Draftsman in the Employer's electric power depart-
ment: This employee prepares new drawings and cor-
rects old drawings from rough sketches. He may go
into the field to make his own sketches or he may
prepare graphs and schematic drawings from informa-
tion pfovided by the engineers. Approximately 50 per-
cent of his time is spent in making original drawings for
the electric maintenance supervisor; 25-30 percent of
his time is spent in correcting drawings during which
time he deals with employees from the engineering de-
partment; 15-20 percent of his time is spent in prepar-
ing drawings for the power department's engineers; and
the balance of his time is spent in the engineering de-
partment converting drawings to microfiche.
Ideally, this position requires a person who has fin-
ished a 2-year course in drafting at trade school.
Communications engineer in the gas department's
utilization division: The communications engineer is re-
sponsible for the design, installation, testing, operation,
and maintenance of the two-way radios, telemetering
and remote supervising control systems, and other elec-
tronic equipment of the gas department. He tests for
frequency modulation, power output, and carrier fre-
quency, and generally insures compliance with FCC
regulations.
He must have a high school education, specialized
schooling in radio and electronics, and FCC radio
operator's license.
At least 80 percent of his working time he is assisted
by another person and during this time he responsibly
directs the work of this individual. He can recommend
this person's termination for failure to perform work
adequately, although he has never done so, and he can
grant overtime.
Gas dispatchers in the gas department: The gas dis-
patchers operate the Employer's gas pressure system
and insure that pressure and supply are correct at all
times and points. They operate the system within given
limits which are generally prescribed in manuals. The
dispatchers are in contact with the operators at the
various power houses and with the Employer's supplier
of gas in performing this job. They also compute meas-
urement charts and calculate the bills of large custom-
ers. They keep records of the gas system operation.
They usually work without supervision.
The dispatchers must have a high school education
and they have a number of years' experience as me-
chanics. They are given 2 to 3 months' special training
before they are allowed to sit on watches, and overall
they receive on-the-job training for about 2 years from
the time they start this job.
Maintenance technician in the gas department's dis-
tribution division: The maintenance technician per-
forms specialized shop operations, including the design
and fabrication of parts and equipment essential to gas
operations. He also performs various maintenance
tasks such as electric work, machinist work, and
plumbing, and he repairs trenching machines, com-
pressors, welders, and associated equipment.
In addition to a high school education, ,the mainte-
nance technician has received specialized training in
technical school. He has working relationships with.
other employees in the gas department and occasion-
ally will work directly with the engineering department
on the conception, design, and fabrication of certain
pieces of equipment.
From all the foregoing, we conclude as follows: the
communications engineers in both the electrical distri-
bution department and the gas department responsibly
direct the work of others, and supervisors within the
meaning of the Act, and are excluded from the unit.
With respect to the balance of the employee classifica-
tions, i.e., the two technical assistants in the electric
distribution department, the draftsman in the electric
power department, and-the maintenance technician
and the gas dispatchers in the gas department, all ex-
cept the gas dispatchers are found to be technical
employees12 and will be included in the unit with the
12 While the gas dispatchers do have the responsibility of operating the
Employer's gas distribution system, and usually do so without supervision,
they operate the system within certain limits prescribed in manuals and
there are automatic controls on the equipment they operate which signal if
any gauges are out of range Although the operation of the gas system is their
basic job, because of these supervisory controls in the equipment, they spend
(Continued)
NEW ORLEANS PUBLIC SERVICE, INC.
engineering department technicals. Although there is
no transfer between the two groups, we find they have
similar working conditions, share similar work inter-
ests, have similar skills, and are under common ulti-
mate supervision.
The unit found appropriate is broader than the unit
Petitioner sought. However, since Petitioner's showing
of interest is sufficient for this larger unit, we shall
direct an election therein, Petitioner having indicated
its desire to proceed should a larger unit be found
appropriate.
We therefore find the following unit appropriate:
All senior design technicians, senior draftsmen,
intermediate draftsmen, draftsman 6, engineering
aides, senior estimator,, senior corrosion mitiga-
tion technicians, corrosion mitigation technicians
and inspectors in the Employer's engineering de-
partment; the technical assistants in the overhead
lines division and underground lines division of
the Employer's electrical distribution department;
the draftsman in the Employer's electric power
department; and the maintenance technician in
the Employer's gas department but excluding the
draftsmen, junior draftsmen, Intermediate Drafts-
men Theriot and Beale, the gas main and service
the bulk of their time computing measurement charts, a nontechnical func-
tion.
839
record clerks, and the gas record coordinator in
the engineering department; the communications
engineer in the meter and service division of the
electrical distribution department; the communi-
cations engineer in the utilization division of the
gas department and the gas dispatchers in the gas
department; the marketing assistant 4 and the
head display man in the marketing services de-
partment; the head schedule maker in the transit
department; and the supervisor, schedule makers,
traffic transit coordinator, research assistant, and
study coordinator in the schedule and planning
division of the transit department; the track in-
spector in the maintenance division of the transit
department; the commercial artist, photographer
and production coordinator in the community re-
lations department; the vice president, managers,
administrative assistants, executive secretary,
secretaries, design supervisors, supervising engi-
neers, senior engineers, engineers, assistant engi-
neers, associate engineers, construction superin-
tendent, technical clerk, and receptionist II in the
engineering department; and all other professional
employees, guards, and supervisors as defined in
the Act.
[Direction of Election and Excelsior footnote omit-
ted from publication.]