Potomac Electric Power Co.

National Labor Relations Board - Board Decisions

Jan 18, 1954

107 N.L.R.B. 886 (N.L.R.B. 1954)

886 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"enterprises which substantially affect the national defense."
Accordingly , we find that it will not effectuate the policies of
the Act to assert jurisdiction in this case.
[The Board dismissed the petition.]
Member Murdock , dissenting:
I cannot agree with my colleagues ' unexplained conclusion
that the Employer herein is not an enterprise which "sub-
stantially affects the national defense." During the past 2 years
it has sold approximately $ 100,000 worth of dairy products to
the United States Navy for naval and coast guard boats and to a
Veterans' Administration hospital .' It does not contest juris-
diction.
I believe it reasonable to conclude that food supplies for the
personnel of naval vessels are just as essential to keep them
operating as is fuel for the boilers . If that is not denied, I am
unable to understand the basis for the majority ' s conclusion
here. Do they regard fresh dairy products as an unnecessary
luxury for naval personnel ? Or does the amount fail to meet
some new but unexpressed quantitative test for what is "sub-
stantial " in connection with the national defense concept?
In my dissent in the Taichert , Inc.,2 case , I pointed out the
considerations which underlay the adoption of the national de-
fense concept in the Board ' s jurisdictional plan , that prior to
that case the Board had never undertaken to weigh the quanti-
tative amount of goods or services furnished or to make value
judgments as to the degree of their essentiality to the national
defense , and had never dismissed an enterprise furnishing
goods or services to the armed services . I believe the liberal
jurisdictional approach followed in this area prior to the
Taichert case is the only safe course to follow , when dealing
with enterprises affecting the national defense. The departure
from it in the Taichert and subsequent cases contributes to
the confusion which exists today as to just what the Board's
jurisdictional policy is in substantial areas.
'The record indicates that in the future it also intends to bid on contracts to supply the
naval base at Key West, Florida.
2 107 NLRB 779.
POTOMAC ELECTRIC POWER COMPANY and INTERNA-
TIONAL BROTHERHOOD OF ELECTRICAL WORKERS,
A. F. L., Petitioner . Case No. 5 -RC-1272. January 18,
1954
DECISION AND ORDER
Upon a petition duly filed under Section 9 (c) of the National
Labor Relations Act, a hearing was held before Henry L. Segal,
hearing officer. The hearing officer's rulings made at the
107 NLRB No. 168.
POTOMAC ELECTRIC POWER COMPANY 887
hearing are free from prejudicial error and are hereby af-
firmed. i
Upon the entire record in this case , the Board finds:
1. The Employer is engaged in commerce within the meaning
of the Act.
2. The labor organizations involved claim to represent cer-
tain employees of the Employer.'
3. No question affecting commerce exists concerning the
representation of employees of the Employer within the mean-
ing of Section 9 (c) (1) and Section 2 (6) and ( 7) of the Act for the
following reasons:
The Employer , operating in the District of Columbia and
nearby areas of Maryland and Virginia , is engaged in the pro-
duction , sale, and distribution of electrical energy . The Peti-
tioner seeks to represent primarily a systemwide unit of all
production and maintenance employees in the Employer's
utility, including plant clerical and "fringe group" employees,
but excluding office clerical , sales, and technical employees,
professional employees , confidential employees , guards, and
supervisors . In the alternative , the Petitioner would accept
any unit or units deemed appropriate by the Board . The Em-
ployer and the Intervenor contend that the established contract
unit is the only appropriate unit3 and urge thatthe Board's de-
cision of November 25, 1952 , involving the same parties and
issues, in which the petition was dismissed , controls the in-
stant case . 4 The Petitioner counters that the bargaining history
is not controlling and that factors exist in the instant case to
warrant the establishment of a production and maintenance unit.
Since 1937 , the Intervenor and its predecessor have bargained
with the Employer for an agreed unit of "all nonconfidential
and nonsupervisory employees " throughout its utility system.5
I The Petitioner , in its brief, contended that the hearing officer improperly rejected prof-
fered exhibits and testimony bearing upon alleged domination and assistance of the Intervenor
by the Employer , on the ground that such evidence was relevant to the persuasiveness of the
bargaining history in determining the unit . The Board , on September 4, 1953, denied a motion,
filed by the Petitioner in the course of the hearing , to reverse the hearing officer ' s ruling in
rejecting these exhibits As proof of unfair labor practices is not permissible in a repre-
sentation proceeding, such evidence is inadmissible . We therefore reject the contention and
affirm our denial of the earlier motion Marine Optical Manufacturing Co., 92 NLRB 571.
2 The Intervenor , Electrical Utility Employees Union, intervened on the basis of its current
contractual relationship with the Employer.
3 No contract -bar issue is raised.
4As the petition in that case , Case No. 5-RC-1075 ( not reported in printed volumes of
Board Decisions ), was dismissed on the ground that the Petitioner ' s proposed unit of hourly
rated physical employees ( alternatively , any unit of production and maintenance employees)
was based upon extent of organization and therefore inappropriate, and not on the ground that
such a unit was inappropriate per se, it is clear for this reason alone that the latter con-
tention is without merit.
5 The Intervenor ' s predecessor was recognized by the Employer in 1933 or 1934 and was
certified by an NRA Board in 1935, after a consent election , as the exclusive bargaining repre-
sentative for all employees except office employees , laborers , and executives ( including
foremen). Thereafter , the unit was expanded by agreement of the parties At present , profes-
sional employees are also excluded from the unit.
888 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although this bargaining history, based as it is upon a unit
agreed upon by the parties and not upon a Board determination
on the merits of the unit , is not conclusive , it is a persuasive
factor in the determination of the appropriate unit herein.6
The Petitioner argues that the appropriateness of its primary
unit request is evidenced by the facts that the unit sought has a
definite relationship to the Employer ' s organization , in that, in
the main, it comprises hourly rated employees and excludes
"office" employees ; that the skills , functions , hours, education
requirements , and working conditions of hourly rated and office
employees differ; and that there is no interchange between the
two categories of employees.'
However , the Employer ' s operations are highly integrated.
The functions of various departments concerned with con-
struction of station facilities , generation of electrical energy,
installation of distribution facilities , and maintenance work,
are coordinated with those of departments responsible for sales
promotion , customer records and services , and technical
services . Each of the former departments has office employees
whose work is partly administrative and partly operational. The
latter departments are staffed with employees performing their
duties in or from offices , involving meter reading , serving
customers and relaying instructions or messages to office
workers in the first -mentioned departments , routine and repe-
titive operation of office machinery , surveying and inspecting
distribution facilities , and so on. In addition , the purchasing
and stores , building operations, and motor transportation de-
partments , where employees perform a variety of duties in or
out of offices and storerooms, service the entire organization
of the Employer. From the foregoing, it is apparent that prop-
er unit placement of many categories of employees in terms
of the Petitioner's proposed unit would be difficult at best.
Furthermore, all employees in the existing overall unit have
shared benefits , such as vacations , holidays , and sickness
disability allowances, under the Intervenor's contracts with the
Employer.
Under all the circumstances disclosed in the record, ' and the
long history of bargaining on an overall basis, we conclude that
only the existing overall unit is appropriate, and that the unit
primarily sought by the Petitioner is inappropriate for the pur-
poses of collective bargaining .' Althought the Petitioner, in the
alternative , requests an election in any unit or units we should
deem appropriate , it does not have an adequate showing of
'See General Electric Company (River Works), 107 NLRB 70.
7 We find no merit in the Petitioner's further contention that a production and maintenance
employees unit is the optimum and traditional unit in electrical utilities. In cases Involving
such utilities, the Board has resolved this type of unit question on the basis of all the circum-
stances in each case See Pennsylvania Power & Light Company, 64 NLRB 874; Kansas City
Power & Light Company, 75 NLRB 609.
8lncluding the record in Case No. 5-RC-1075, which was incorporated herein.
9In view of this disposition, we need not consider the Petitioner's specific contentions as to
inclusions and exclusions relative to its proposed unit.
FRITZSCHE BROTHERS, INC. 889
interest among the employees in the existing overall unit, and
the Intervenor has not indicated that it desires an election
herein ." Accordingly , we shall dismiss the petition.
[The Board dismissed the petition.]
Member Murdock took no part in the consideration of the
above Decision and Order.
10 As to units narrower than the one primarily sought, the Board, on June 26, 1953, sustained
the Regional Director's dismissal of the Petitioner's two petitions, in Cases Nos. 5-RC-1281
,and 1282, for units comprising employees in a cable-splicer group and a lineman group.
FRITZSCHE BROTHERS, INC. and LOCAL 68, INTERNATION -
AL UNION OF OPERATING ENGINEERS, AFL, Petitioner.
Case No. 2-RC- 5068 . January 18, 1954.
SUPPLEMENTAL DECISION AND ORDER
Following a hearing conducted on September 19, 1952, the
Board , on November 7, 1952 , issued its Decision and Direction
of Election herein , finding appropriate a unit of all operating
engineers and firemen employed in the boilerhouse at the Em-
ployer's Clifton, New Jersey, plant.1 The Employer's motion to
vacate the decision was denied by the Board on December 3,
1952.
On December 5, 1952 , pursuant to the Board ' s Decision and
Direction of Election , an election was held under the direction
and supervision of the Regional Director for the Second Region
among the employees employed in the unit during the payroll
period ending October 31, 1952 . At the close of the election,
the parties were furnished a tally of ballots. The tally shows
that five employees voted , all subject to challenge. 2
The Employer filed timely objections to the election. Pur-
suant to the Board's Rules and Regulations , the Regional Di-
rector investigated the challenges and objections and, on
January 27 , 1953 , issued his report on objections and chal-
lenges . In his report, the Regional Director recommended that
the challenged ballots of Rose , Matthews , and Opalka be opened,
that the challenges to Trachin and Sauerzopf be sustained, and
that the objections be overruled . The Employer filed timely ex-
ceptions to,the Regional Director ' s report.
'This decision was not reported in the printed volumes of BoardDecisions. The unit was
specifically defined to include Rose, a regular, full-time boiler room employee, and Matthews,
who, at the time of the original hearing, served as the only regular relief operator. Trachin,
who mainly relieved Matthews when the latter substituted for Rose, was excluded because of
the sporadic nature of his boilerroom work.
2 The Employer challenged Rose and Matthews. The Board agent challenged Trachin, Opalka,
and Sauerzopf.
107 NLRB No. 166.