Southwestern Electric Service Co.

National Labor Relations Board - Board Decisions

Mar 31, 1950

89 N.L.R.B. 114 (N.L.R.B. 1950)

In the Matter of SOUTHWESTERN ELECTRIC SERVICE Col\IPANY, ElI-
PLOYER and INTERNATIONAL BROTHERIIOOD OF ELECTRICAL WORMERS,
A. F. L., LOCAL 790, PETITIONER
Case No. 16-RC-431.-Decided March 31, 1950
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before Joseph A.
Butler, hearing officer. The hearing officer's rulings made at the hear-
ing are free from prejudicial error and are hereby affirmed.
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-member panel [Chairman Herzog and Members
Reynolds and Styles].
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the meaning of
the National Labor Relations Act.'
2. The labor organization involved claims to represent certain em-
ployees of the Employer.
3. A question affecting commerce exists concerning the representa-
tign of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The Petitioner seeks a unit limited to the Employer's Jackson-
ville Division and comprising all employees working in the electrical
operations of that division except professional, office, and clerical
employees. The Employer contends that to be appropriate the unit
must include all similar employees in its Central Division.
The Employer is principally engaged in the purchase, generation
distribution, and sale of electric energy.2 Its properties consist of
two separate systems, both located in east central Texas, one serving
Jacksonville and adjacent communities, the other serving Mexia, Mar-
' Southwestern Electric Service Company, 85 NLRB 153.
2 The Employer also manufactures and sells ice. We are not concerned, in this pro-
ceeding, with this phase of its business, both parties agreeing that employees engaged
therein cannot properly be included in any unit deemed appropriate by either party.
89 NLRB No. 6.
114
SOUTHWESTERN ELECTRIC SERVICE COMPANY 115
lin, and adjacent territory.' At their point of nearest approach to
one another the two systems are 60 miles apart and the Employer has
no interconnecting lines.4
The first system, or Jacksonville Division, obtains its electric energy,
in the main, from its one generating plant located at Jacksonville. On
the other hand, electric energy distributed through the second system
or Central Division, is virtually all obtained by purchase from the
Texas Power and Light Company. The Employer has three generat-
ing plants in its Central Division, but these plants, located at Mexia,
Marlin, and Rosebud, are maintained on a stand-by basis, and are used
to generate energy only upon request by Texas Power and Light on
the infrequent occasions when that company is unable to deliver the
amount of energy it has contracted to supply.'
There has been no collective bargaining in either system since both
were acquired by the Employer in 1945 from Southwestern Public
Service Company. The record does not establish a previous history
of collective bargaining in the Mexia-Marlin system-Central Divi
sign=either during the ownership of Southwestern. Public Service
or that of Texas-New Mexico Public Utilities Corporation, from whom
Southwestern Public Service acquired the electrical properties now
constituting the Central Division. However, in an: unfair labor prac-
tice proceeding in 1939, at a time when the electrical properties now
constituting the Jacksonville Division were in the ownership of Gulf
Public Service Company, from whom the Southwestern Public Service
acquired them in 1941, the Board found that the present Petitioner
represented the majority of, employees in a unit virtually the same as
that it now seeks to represent" and had represented then since 1937.
'The Employer apparently prefers to designate the two systems as the Jacksonville
District and the i\Iexia-i\Iarlin District, respectively, and we so designated them in our
oriter dismissing a previous petition, Southwestern Electric Service Coin.pany, supra. In
thp.record in the instant proceeding these terms are used interchangeably with, the terms
5iist and Second Division, and Jacksonville Division and Central Division. In this deci-
sion we have adopted the latter designation to conform with the agreed amendment of the
unit description at the hearing.
4lnterconnection is possible, however, through the lines of the Texas Power and Light
Company, a company unaffiliated with the Employer. . .. , . : ,
Texas Power and Light, which has connections with each of. the Employer's systems
at various points, furnishes energy to both finder two separate contracts with. the
Employer. The contract covering the Jacksonville Division is for emergency energy
only, providing that either company will supply the other in an emergency with energy
up to a fixed amount. The contract covering the' Central Division, on the other hand,
is for a specific amount, regularly delivered, but with a provision permitting Texas Power
and Light to request the Employer to operate its stand-by:`plarits when it becomes
temporarily difficult for Texas Power' and Light to furnish the agreed amount.
The same properties now constituting the Jacksonville Division were -involved rind
the unit comprised the same groups of employees in the same types of jobs. In 'finditig
the unit appropriate the Board did not discuss the relationship, if any, of the' operation
of Gulf's Jacksonville Division to its other more extensive electrical'' properties, all
located in Louisiana , which the present record shows Gulf then owned.
889227-51-vo1:89-9
116 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In that case, the Board ordered Gulf to bargain with Petitioner as
representative of the employees in this unit.' Gulf did not comply
with the order until the Board, in January 1941, obtained a court
decree enforcing it.8 Negotiations looking toward a contract were
then entered into, but no contract had resulted when Southwestern
Public Service acquired the properties later in the year. Frank Rand,
who as manager of the Jacksonville Division had represented Gulf
in negotiations with the Petitioner, remained manager of the division
and represented his new employer in renewed negotiations which con-
tinued until 1942, but no contract ever resulted.9
In October 1948, the present Petitioner filed a petition asking for a
unit limited to the power plant employees in the Employer's Jackson-
ville Division. We dismissed this petition, on the ground that the
employees sought did not constitute a functionally distinct group
with interests separate from the distribution employees.10 Through-
out that proceeding the Employer urged vigorously that the only unit
that could be appropriate was ". . . just the Jacksonville Dis-
trict, the same unit set up by the Board previously and confirmed by
the circuit court. We say that is all that could be appropriate:" 11
The Employer nevertheless now contends that the minimal appro-
priate unit must include all the employees in its electrical operations
in both the Jacksonville Division and the Central Division. In sup-
port of this position it asserts that, whatever its past operational his-
tory, in the 8 months between the hearing in the earlier proceeding
and the hearing in this proceeding, there has been an increasing cen-
tralization of operations which renders a unit limited to one division
inappropriate. The only testimony offered as to this change, how-
ever, was that the Company's general offices had been moved from
Waco to Jacksonville, headquarters of the Jacksonville Division-,12 4the
that its personnel policy was now administered on a company-wide
basis, functioning through a central personnel office, with a resulting
promotion policy which involved recognition of seniority on a com-
pany-wide basis. None of the promotions made in the 8-month period,
however, involved a transfer from one division to the other. So far
as the record shows,. the company-wide policy on transfer seems to
' Gulf Public Service Co., 18 NLRB 562.
8 N. L. R. B . v. Gulf Public Service Co., 116 F . 2d 852.
0In January 1949, at the hearing on the previous petition ( see footnote 1.0, infra), the
Employer sought to emphasize the fact that there has been a continuity of operational
policy under the various ownerships , by pointing out that Mr. Rand Is it vice , president
of the Employer and at the time of that hearing was still in charge of the Jacksonville
Division.
10 Southwestern Electric Service Company, supra.
" Emphasis supplied.
12 This move took place , however, before the hearing in the previous proceeding at which,
the Employer urged that only a unit comprising the Jacksonville Division was adapted
to its operational methods.
SOUTHWESTERN ELECTRIC SERVICE COMPANY 117
amount to no more than an acknowledged willingness on the part of
the Employer to give consideration to any request for transfer from
one division to the other, coupled with a firm policy that no employee
shall be forced to transfer against his wishes.13 In view of the fact
that no interdivision transfers have been made for any reason what-
soever, in the 8 months in question, there is little indication that the
previously separate character of the two divisions has changed
significantly.14
In attacking the. appropriateness of the unit sought, the Employer
further relies on the fact that we have frequently stated that a com-
pany-wide unit, comprising all the systems of an employer, is the
optimum unit in a public utility, and points out that in dismissing the
earlier petition last July we reiterated the desirability of such a unit.
We have not, however, taken the position that because such a unit is
ultimately the most desirable, it is at all times and in all circum-
stances the only appropriate type of unit in a public utility, particu-
larly in those cases where no labor organization seeks to represent a.
group of employees on a company-wide basis.15 . In the present case,
as thell Employer's two electrical "systems are not physically inter-
dependent, and the unit confined to one of them, sought by the Peti-
tioner, follows the lines of a geographical and administrative division
of the Employer's operations, comprising a readily identifiable and
homogeneous group of employees, we find such a unit to be appropriate.
The only further unit problem concerns the status of five men
classified as shift operators whom the Petitioner wishes to include.
The Employer contends that the shift operators, all of whom work in
the Jacksonville power plant, should be excluded as supervisors.
.Shortly before this proceeding was begun the Employer gave the shift
operators the right effectively to recommend changes in the wage
status of the boiler operators: and turbine operators whose work they
direct. It is unnecessary to describe the duties of the shift operators
and to determine whether they constitute responsible direction, be-
cause this new function which has been written into their job descrip-
13 In this connection it developed that most of the employees have worked exclusively
in one division for some years and that many of them own homes in the territory
embraced in the division in which they have worked.
"Temporary interchange of employees took place, before the 8 months in question, only
in case of emergencies, such as ice storms, when line crews crossed divisional boundaries
to make necessary repairs. No other type of interchange took place within the 8-month
period and, as it chanced, no occasion arose for interchange of line crews.
16 Under the Act we are not precluded from giving some consideration to the extent of
employee self-organization, when that is not the "controlling" factor supporting the
determination of the appropriate unit. Waldenf.ian Hosiery Mills, Inc., 83 NLRB 742.
In Texas Electric-Service Company, 77 NLRB 1258, where the Petitioner sought a single
unit comprising employees in only two of the Employer's nine power plants, we found
separate units for each of the two plants to be appropriate. As in the instant case, the
geographical separation between the plants was not great, there were no transfers between
the plants, and the equipment in the two plants differed.
Its DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion, and in at least one instance exercised, brings them clearly within
the statutory definition of a supervisor. Accordingly, we shall exclude
them from the unit.
We find that all employees in the Employer's electrical operations
in its Jacksonville Division, excluding all employees of the Central
Division, ice-plant employees, 16 professional. employees, clerical em-
ployees, guards, watchmen, shift operators, and all other supervi-
sors as defined in the Act, constitute a unit appropriate for the pur-
poses of collective bargaining within the meaning of Section 9 (b)
of the Act.
DIRECTION OF ELECTION
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Einployer, an election by
secret ballot shall be conducted as early as possible, but not later than
30, days from the date of this Direction, under the direction and
supervision of the Regional Director for the Region in which this case
was heard, and subject to Sections 203.61 and 203.62 of National
Labor Relations Board Rules and Regulations, among the employees
in the unit found appropriate in paragraph nmbered, 4, above, who
were employed during the payroll period in nediately preceding the
date of this Direction of Election, including employees who did not
work during said payroll 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 the election, and also excluding em-
ployees on strike who are not entitled to reinstatement, to determine
whether or not they desire to be, represented, for purposes of collective
bargaining, by International Brotherhood of Electrical Workers,
A. F. L., Local 790.
11 Some of the maintenance men perform some work in the ice plant, but as their work
is predominantly in the power plant they are included in the unit.