Southern California Gas Co.

National Labor Relations Board - Board Decisions

Jan 17, 1946

65 N.L.R.B. 543 (N.L.R.B. 1946)

In the Matter of SOUTHERN CALIFORNIA GAS COMPANY and SOUTHERN
CALIFORNIA PROFESSIONAL ENGINEERING ASSOCIATION, GAS UTILITY
ENGINEERS AFFILIATE UNIT No. 1
Case No. 21-R-2811.-Decided January 17, 1946
Messrs. R. R. Blackburn and W. R. Davis, both of Los Angeles,
Calif., for the Company.
Messrs. Sterling S. Green, George Slocomb, Bert H. Peck, and Perry
Bertram, all of Los Angeles, Calif., and Mr. George C. Thomson, of
Glendale, Calif., for the. Association.
Messrs. Katz, Gallagher ctc Margolis, by Mr. Ben Margolis, of Los
Angeles, Calif.; and Messrs. James L. Dougherty and K. D. Brown,
both of Los Angeles, Calif., for the C. I. O.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a second amended petition duly filed by Southern California
Professional Engineering Association, Gas Utility Engineers Affiliate
Unit No. 1, herein . called the Association , alleging that a question
affecting commerce had arisen concerning the representation of em-
ployees of Southern California Gas Company, Los Angeles , California,
herein called the Company, the National Labor Relations Board pro-
vided for an appropriate hearing upon due notice before Charles M.
Ryan, Trial Examiner. The hearing was held at Los Angeles, Cali-
fornia, on various dates between August 28 and September 18, 1945.
The Company, the Association , and Utility Workers Union of Amer-
ica, CIO , herein called the C. I. 0., 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. At the hearing , the Company and the C. I. O. each moved for
dismissal of the petition . The Trial Examiner reserved ruling on
these motions for the Board. For reasons set forth in Sections I, II,
and III , infra, the motions are denied . 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.
65 N. L. R. B., No. 90.
543
679100-46-vol 65-36
544 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
1. TIIE BUSINESS OF THE COMPANY
At the hearing in this proceeding, the Company agreed that the
record in an earlier case before the Board involving it- should be
incorporated into the record herein,' and conceded that its business
is substantially the same as it was at the time of the hearing in that
case. In this earlier case we found :
The Company is a California corporation with its principal office
and place of business located at Los Angeles, California. It is en-
gaged primarily in the business of purchasing, transporting, selling,
and distributing natural gas for light, heat, and power purposes in
the central and southern portions of the State of California. It is
also engaged to a moderate extent in manufacturing, transporting,
selling, and distributing manufactured gas. As an incident to its
principal business, the 'Company sells gas appliances at retail. The
chief raw material used by the Company in its operations is natural
gas, all of which is purchased within the State of California. In
addition, it purchases other raw materials including pipe meters,
regulators, and similar items. Of these materials, amounts in the
value of approximately $1,000,000 annually are purchased outside
the State of California. Omitting the value of the natural gas pur-
chased by the Company, this figure constitutes approximately one-
third of the total value of all other raw materials purchased by the
Company. All products sold by the Company are sold within the
State of California. The Company supplies gas to major industrial
firms in southern California and to a number of instrumentalities
engaged in interestate commerce 2
We find, contrary to the Company's contention, that it is engaged
in commerce within the meaning of the National Labor Relations
Act-'
IT. TIIE ORGANIZATIONS INVOLVED
Southern California Professional Engineering Association, Gas
Utility Engineers Affiliate Unit No. 1, unaffiliated, and Utility Work-
ers Union of America, affiliated with the Congress of Industrial Or-
1 Matter of Southern California Gas Company , 10 N L. R. B. 1123.
x Since these findings were made, the Company "is operating its plant in conjunc-
tion with [a] Defense Plant Corporation plant for the purpose of making butadiene
fractions used in the manufacture of synthetic rubber."
3 See Consolidated Edison Company of New York, Inc, et al v N. L. R. B ,
305 U. S 197 See also Matter of Southern California Gas Company, 10 N. L R B.
1123 ; 31 N. L R B. 461 ; 35 N. L R B. 263; 40 N. L R B 265, 41 N L. R. B 668,
44 N L R B 1395; and 47 N L R B 690
SOUTHERN CALIFORNIA GAS COMPANY 545
ganizations, are labor organizations, admitting to membership em-
ployees of the Company.'
III. THE QUESTION CONCERNING REPRESENTATION
The Company has refused to grant recognition to the Association
as the exclusive bargaining representative of certain of its employees.
Statements of Board agents, introduced into evidence at the hear-
ing, indicate that the Association represents a substantial number of
employees in the unit hereinafter found appropriate.5
We find that a question affecting commerce has 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 UNIT
A. Contentions of the parties
The association seeks a unit of non-supervisory "professional en-
gineering employees" engaged at the Company's Central Division.6
The Compay asserts that the unit is inappropriate. in that it includes
confidential and managerial employees as well as employees not en-
gaged in an engineering or technical capacity, and fails to include
technical employees whose work is closely associated with and per-
formed under the same working conditions as that of the "professional
engineering employees";' in addition, it contends that the unit should
In support of its motion to dismiss, the C I. O. asserted that the Association has
membership limitations which would prevent it from representing all employees in the
unit hereinafter found appropriate However, the record clearly indicates that the Asso-
ciation is prepared to amend its membership requirements and is willing to represent all
employees in the unit Under these circumstances we find no merit in this contention
of the C I. 0
5 A compilation of the statements of a Field Examiner and the Trial Examiner discloses
that the Association submitted 54 designations bearing the signatures of persons appear-
ing upon the Company ' s pay roll for the period ending June 30, 1945 The Field Examiner
reported that the C . I O. submitted 25 designations containing the signatures of persons
appearing on this pay roll The record indicates that there are approximately 100 em-
ployees in the unit set forth in the Association ' s second amended petition , and approxi-
mately 150 employees in the unit asserted as appropriate by the C I. 0 We find, con.
trary to the C I O .'s contention , that the interest of the Association is substantial
6 The Association described its unit in terms of categories of employees , seeking all
non-supervisory employees engaged as designers, senior draftsmen , engineering assistants
A and B, junior engineers , office engineers , staff technicians , technical assistants , air condi-
tioning engineers , industrial gas engineers , service engineers , office supervisors , petroleum
engineers, technical service engineers, estimating engineers , and research assistants The
record is not clear as to whether or not it desired to include cost engineers and assistant
cost engineers.
T More particularly, the Company would include draftsmen , laboratory assistants , labora-
tory technicians , and construction detailers , who are currently unrepresented for the
purposes of collective bargaining . It would also include some employees who are cur-
rently represented by the C. I 0 , such as engineering aides and industrial service men,
who it asserts are engaged in a technical capacity
546 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be system -wide in scope . The C. I. 0. agrees with the Company with
respect to the inappropriateness of the proposed unit because of the
failure to include therein certain unrepresented technical employees;
however, it disagrees with the Company to the extent that the Com-
pany would include employees whom the C. I. 0. now represents.8
Both labor organizations disagree with the Company with respect
to the confidential status of specific employees in the proposed unit,
and disagreement also exists among the parties as to the supervisory
status of particular workers.
B. The territorial scope of the unit
The Association, although apparently willing to represent all "pro-
fessional engineering employees" of the Company in a system-wide
unit refused to amend its petition in this respect when given an oppor-
tunity to do so .9 In the past we have found appropriate units of the
Company's employees limited in scope to divisions or to districts,"
and at the present time there are two represented collective bargaining
units which we have established confined to employees of the Central
Division." Consideration of these facts leads us to the conclusion
that a unit limited to the Company's Central Division employees,
such as here sought, is appropriate.
C. The general composition of the unit
As previously noted, the Association seeks a unit of "professional
engineering employees," contending that these individuals have inter-
ests and problems differing from 'other employees of the Company,
including those engaged in "non-professional" technical, or "non-
professional" engineering duties; it asserts that the "professional
engineering employees" can best be represented by an organization
aware of their problems which "vary considerably with the individ-
ual." It is not clear, however, what the Association means by a "pro-
fessional engineering employee." From the evidence adduced at the_
hearing,. individuals may qualify as such if they have received an
engineering degree from a recognized school of learning or are able
to be and actually are engaged in "creative" work pertaining to the
"control and conversion of forces and materials to use in structures,
8 See preceding footnote.
O The record indicates that approximately 30 percent of the "professional engineering
employees" are engaged in divisions of the Company other than the Central Division it
fails to disclose , however, the extent of the Association 's interest among these employees.
Nor does it contain any evidence of the interest of either labor organization among any
technical employees of divisions other than the Central Division.
1O See cases cited in footnote 3, supra. The Company has 6 divisions , of which the
Central Division is one.
"-See 10 N L . R B. 1123 ( production employees ) ; 44 N. L. R B 1395 ( maintenance
employees ). The C. I. O. represents the employees in both these units.
SOUTHERN CALIFORNIA GAS COMPANY 547
machines and products." 12 Thus, apparently, the Association recog-
nized that experience may properly take the place of education for
the purpose of coming within its definition of a "professional engi-
neering employee." 13 However, the Association reserves the right
to pass upon the qualifications of applications for membership upon
an individual basis.14 It appears that the Association seeks a unit
of individuals rather than a group of employees engaged in similar
or related work, and would exclude therefrom persons who do not
have the qualifications of a "professional engineering employee" as
interpreted by its membership committee. In the Curtiss-Wright
case,15 we had occasion to pass upon and reject a similar contention
with respect to a bargaining unit, stating :
A unit . . . delineated upon ,the basis of the scholastic (or
equivalent) history of individual employees rather than on the
basis of their function, would in our opinion be unworkable and
inappropriate for collective bargaining purposes.'1
11 We distinguish the cases in which we have recognized the appropriateness of
units of "professional " employees since in those cases the units found appropriate
were functional groupings Matter of Aluminum Company of America, The Aluminum
Cooking Utensil Company ( Amendment ' to Decision and Direction of Election), 62
N L R B 318, Matter of Lockheed Aircraft Corporation , 58 N L R B 1188,
Matter of General Electric Company , 57 N. L R . B 81 ; Matter of Radio Corporation
of America, RCA Victor Division, 57 N L R B 1283 , Matter of Shell Development
Company, Inc, 38 N. L R B. 192 , [ see also Matter of Neches Butane Products
Company, 61 N L. R. B. 1194].
For the reasons set forth in the Curtiss-Wright case, which obtain
here, we shall delineate the unit hereinafter found appropriate in func-
tional terms.
The record indicates that laboratory assistants and laboratory
technicians perform duties comparable to and closely associated with
those of technical assistants and research assistants; that draftsmen
are engaged in duties similar to those of senior draftsmen, the differ-
ences in the work of these two classifications of employees being simply
12 Article II of the Association's Rules and Regulations uses the term "professional
engineering employee" in the sense of "persons . possessing an intimate knowledge
of mathematics and the physical sciences gained by technological and scientific education,
training and experience , are in a position of trust and responsibility , apply their knowledge
in controlling and converting forces and materials to use in structures , machines, and
products, and whose work requires the exercise of discretion and judgment , is creative
and original and of such a character that the output cannot be standardized ; and those
who, without the experience set forth , but having been graduated from an approved edu-
cational institution and having received the degree of Bachelor of Science or its equiv-
alent , in Engineering , and engaged in engineering work."
19 This is borne out by the fact that the Association includes senior draftsmen within
its proposed unit despite the fact that these employees do not necessarily possess an
engineering degree.
14 Article III (1 ) of the Association's Rules and Regulations states that the "Commit-
tee shall review each application for membership . . and determine whether or not
the applicant is a `Professional Engineering Employee ' In accordance with [Article II]."
11 63 N L R. B. 207.
548 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of degree of complexity; and that construction detailers do the
same type of work as engineering assistants B. We are of the opinion,
therefore, that no technical and engineering unit of employees of the
Company can be complete without the inclusion of employees in these
classifications. Accordingly, we shall include them.16
The Company further contends that certain employees currently
represented by the C. 1. 0., such as industrial service men and engineer-
ing aides, are engaged in technical or engineering work and should
also be included within the unit. However, in view of the fact that
these employees are already represented for collective bargaining
purposes, and inasmuch as the evidence adduced by the Company in
'support of this contention is not sufficient to warrant shifting them
to the unit here sought, we shall exclude them.
D. Specific inclusions-and exclusions
We have previously noted that a dispute exists with respect to the
supervisory or confidential status of certain of the employees involved
herein. We have further noted that the Company contends that
certain employees are not engaged in a technical or engineering capac-
ity. In support of its position the Company introduced into evidence
at the hearing exhibits containing numbered job descriptions of each
of the positions in dispute.17 Since no evidence was adduced by
either of the labor organizations which controverts the correctness of
these job descriptions, we shall accept them at face value, and our
specific findings hereinafter made with respect to disputed jobs shall
be based upon this evidence and upon the entire record in the case.
Designers-The Company contends that 1 of its 14 designers is a
supervisory employee. This employee (job description 12) assigns
work to, and coordinates the work of, 4 other designers and 2 senior
draftsmen. He makes personnel rati>1gs, and his recommendations
with respect to his subordinates carry considerable weight. We shall
exclude this designer as a supervisory employee, but include the
remaining designers.
Engineering assistants A-The Company contends that 13 of the
16 engineering assistants A are supervisory employees (job descrip-
tions 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, and 32), and that only
3 are not (job descriptions 27, 30, and 31).16 The record indicates
that the 13 engineering assistants A alleged to be supervisory em-
ployees supervise the work of several subordinates; they either discuss
the job performance of subordinates with their superiors, make per-
sonnel ratings with respect to their subordinates, or do both. Recom-
mendations of these 13 employees affecting the status of their subordi-
nates are accorded substantial weight by the Company. We are of
1° The record indicates that these employees are in nowise associated with management.
11 Board's Exh. 4 and Company' s Exh. 2.
18 Both labor organizations desire that the non-supervisory engineering assistants A
be included within the unit.
SOUTHERN CALIFORNIA GAS COMPANY 549
the opinion that they are supervisory employees and shall exclude
them 19
Office engineers-The Company asserts that certain office engineers
(job descriptions 53, 57, 62, and 63) are supervisory employees; that
others (job descriptions 54, 55, 56, 58, 60, 61 and 65) are confidential
employees; and that some office engineers (job descriptions 59, 62,
63, 64, and 66) do not perform duties of a technical or engineering
nature2°
The record indicates that each of the office engineers alleged to be
a supervisory employee supervises the work of several subordinates
and gives them efficiency ratings. In addition, their recommendations
with respect to their subordinates are accorded considerable weight by
the Company. We find that they are supervisory employees and shall
therefore exclude office engineers in job descriptions 53, 57, 62, and 63.
However, we cannot agree with the Company that the office engi-
neers alleged to be confidential are, in fact, confidential employees
within the meaning of our usual definition of "confidential employees".
None of them is concerned with employer-employee relationships, as
such, or have access, in the normal course of their duties, to confidential
information directly pertaining thereto. Accordingly, we shall in-
clude within the unit office engineers filling job descriptions 54, 55, 56,
58, 60, 61, and 65.
With respect to office engineers filling job descriptions 59, 64 and
66,21 the record indicates that none of them performs duties of a tech-
nical or engineering nature. The office engineer filling job description
59 combines the duties of a timekeeper, bookkeeper, and librarian; the
office engineer filling job description 64 is the liaison officer between
the Company and other public utilities ; and the office engineer filling
job description 66 is in charge of the Company's tax matters. We
shall also exclude these office engineers from the unit.
Office supervisor-The Company employs 1 individual in this cate-
gory (job description 67) and contends that he is a supervisory em-
ployee. The record indicates that he supervises the work of approxi-
mately 36 employees, makes personnel ratings with respect to them,
and that his recommendations affecting their status are given consid-
erable weight by the Company. We shall exclude the office supervisor
as a supervisory employee.
Research assistants.-The Company contends that 3 of its 11 research
assistants (job descriptions 71, 77 and 78) are supervisory employees.
The record indicates that each of these 3 employees supervises the work
of several subordinates and has authority to or actually does make
19 We shall include engineering assistants A in job descriptions 27, 30, and 31.
20 There is no dispute with respect to the inclusion of the office engineer in job descrip-
tion 52.
21 Office engineers in job descriptions 62 and 63 have previously been found to be super-
visory employees.
550 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel ratings. Furthermore , their recommendations affecting the
status of their subordinates are accorded considerable weight by the
Company. We shall exclude the 3 research assistants in job descrip-
tions 71, 77, and 78.
Staff technicians ' The Company contends that 2 of its 3 staff tech-
nicians ( job descriptions 96 and 98 ) are supervisory employbes, and
that the third staff technician ( job description 97) is a confidential
employee . The staff technician in job description 96 supervises the
work of several subordinates , makes personnel ratings, and has author-
ity to make effective recommendations with respect to subordinates.
The staff technician in job description 97 is the assistant to the plant
superintendent . As such, he has access to all matters pertaining to
personnel which are handled by his superior , and is in close and active
contact with these matters . The staff technician in job description 98
performs the duties of the assistant plant superintendent in his absence,
t rains new employees , and makes studies of and recommendations con-
cerning plant operations . We shall exclude all staff technicians.
Technical service supervisors-The Company contends that the 2
technical service supervisors (job descriptions 116 and 117) are super-
visory employees. Both supervise the work of several subordinates,
make personnel ratings, and have authority to make recommendations
affecting the status of their subordinates , which are given weight. We
shall exclude them.
Cost engineers and assistant cost engineers-The record is not clear
as to whether or not the Association seeks to represent the 4 employees
in these two classifications ( job descriptions 118, 119, 120, and 121).
However, it appears from the record that all are engaged in work
of a statistical nature, and we are of the opinion that they are not
properly part of a technical and engineering unit. We shall exclude
them.
Petroleum engineer-The Company contends that this employee
(job description 122) is a supervisory employee . He supervises the
work of several subordinates , makes personnel ratings, and his recom-
mendations with respect to his subordinates are accorded considerable
weight. We shall exclude the petroleum engineer.
We find that all technical and engineering employees of the Com-
pany engaged at its Central Division , including laboratory assistants;,
laboratory technicians , draftsmen , construction detailer ; designers
(except the employee filling job description 12) ; engineering assist-
ants A filling job descriptions 27, 30, and 31 ; engineering assistants
B; junior engineers ; office engineers filling job descriptions 52, 54,
55, 56, 58, 60 , 61, and 65; senior draftsmen ; research assistants ( except
those filling job descriptions 71, 77, and 78) ; technical assistants; air
conditioning engineers ; industrial gas engineers; service engineers;
SOUTHERN CALIFORNIA GAS COMPANY 551
and estimating engineers , but excluding the designer filling job descrip-
tion 12; engineering assistants A filling job descriptions 17, 18, 19, 20,
21, 22, 23, 24 , 25, 26, 28, 29 , and 32; office engineers filling job descrip-
tions 53, 57 , 59, 62, 63, 64 , and 66; the office supervisor ; research assist-
ants filling job descriptions 71, 77, and 78; staff technicians ; technical
service supervisors ; cost engineers ; assistant cost engineers; the petro-
leum engineer ; 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 ; and all other em-
ployees of the Company, constitute a unit appropriate for the purposes
of collective bargaining within the meaning of Section 9 ( b) of the
Act.
V. THE DETERMINATION OF REPRESENTATIVES
We shall direct that the question concerning representation which
has arisen be resolved by an election by secret ballot among employees
in the appropriate unit who were employed during the pay-roll period
immediately preceding the date of the Direction of Election herein,
subject to the limitations and additions set forth in the Direction.
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 Relations Act,
and pursuant to Article III, Section 9, of National Labor Relations
Board Rules and Regulations-Series 3, as amended, it is hereby
DIRECTED that, as part of the investigation to ascertain representa-
tives for the purposes of collective bargaining with Southern Cali-
fornia Gas Company, Los Angeles , California , 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 Director for the Twenty-first Region,
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 Regu-
lations, among employees 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 , and including 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 rehired or reinstated prior to the date
of the election , to determine whether they desire to be represented by
Southern California Professional Engineering Association , Gas Util-
ity Engineers Affiliate Unit No. 1, or by Utility Workers Union of
America, CIO , for the purposes of collective bargaining , or by neither.