The Ohio Power Co.

National Labor Relations Board - Board Decisions

Nov 22, 1948

80 N.L.R.B. 582 (N.L.R.B. 1948)

In the Matter of THE OHIO POWER COMPANY (CANTON DIVISION),
EMPLOYER and UTILITY WORKERS UNION OF AMERICA, CIO,
PETITIONER
Case No. 8-RC-145.-Decided November 240,1948
DECISION
AND
DIRECTION OF ELECTION
Upon a petition duly filed, a hearing was held before a hearing
officer of the National Labor Relations Board. The hearing officer's
rulings made at the hearing 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-man panel consisting of the undersigned Board
Members.*
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 organizations named below claim to represent certain
employees of the Employer.2
3. A question affecting commerce exists concerning the represen-
tation of employees of the Employer, within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act .3
1 At the hearing, the Employer moved to dismiss the petition on the ground that the Peti-
tioner had made no showing of interest on the record. As the showing of a representative
interest is a matter for administrative determination by the Board, the motion is denied.
Matter of O. D. Jennings & Company, 68 N. L. R. B. 516.
*Chairman Herzog and Members Reynolds and Gray.
S Electric Service Employees Union, Local No. 102, and International Brotherhood of
Electrical Workers (AFL), participated in the hearing as Intervenors . As Electric Service
Employees Union, Local No. 102, is not in compliance with Section 9 (f), (g), and (h) of
the Act, we shall not place its name on the ballot in the election hereinafter directed.
i The Employer urges that its contract with the Electric Service Employees Union,
Local No . 102, is a bar to this proceeding. The Intervenors and the Petitioner assert that
it is not a bar. The Employer and Local No. 102 executed a contract on July 1, 1944,
effective for 1 year, but automatically renewable for successive yearly terms thereafter
unless notice to terminate or modify be given by either party at least 30 days before any
anniversary date. The contract has been automatically renewed since 1944 , and supple-
80 N. L. R. B., No. 99.
582
THE OHIO POWER COMPANY 583
4. The appropriate unit :
The Petitioner seeks a unit composed of all physical employees of
the Canton Division of the Ohio Power Company, including trans-
mission and distribution patrolmen, troublemen, linemen, and ground-
men, substation maintenance men, metermen, appliance service men,
storeroom men, janitors, district service men, service meter readers,
and operators and maintenance men in the steam plant, but excluding
clerical, office, and professional employees, employees in managerial
capacities, employees in specific temporary jobs, watchmen and guards,
foremen, and all other supervisors as defined in the Act. The parties
disagree as to the inclusion of the following job classifications, which
the Employer would exclude and the two Intervenors and the Peti-
tioner would include : the store records clerk, meter clerks, engineers'
assistants and trouble dispatchers.
In 1942, the Board certified Electric Service Employees Union,
Local No. 102, as bargaining representative of separate units of the
Employer's physica14 and non-physical 5 employees. Since 1942, the
disputed classifications listed above have been included in the non-
physical unit. They receive the same vacation and sick leave benefits
as non-physical employees, and are paid on a salary rather than an
hourly basis, as are other non-physical employees. In view of their
inclusion in the non-physical unit for the past 6 years, and their com-
munity of interest with non-physical rather than physical employees,
we shall exclude the store records clerk, meter clerks, engineers' as-
sistants, and trouble dispatchers from the physical employees unit
here requested.
The parties are in further disagreement as to the inclusion or ex-
clusion of the working foreman in the garage, part-time working fore-
men,6 and employees with less than 6 months' service. The Petitioner
and the Intervenors would include these classifications, and the Em-
ployer would exclude them from the unit. The record clearly indi-
cates that the working foreman in the garage is a supervisor, as he
may effectively recommend the discharge and disciplining of em-
ployees under him. We shall exclude him from the Unit .7 The part-
time working foremen assume the duties of foremen when the latter
mented by amending agreements concerning wages. On April 27, 1948, Local No. 102
advised the Employer of its desire "to open up contract negotiations ." On April 28, 1948,
the Petitioner requested recognition as bargaining agent, and on April 30, 1948 , filed the
petition herein. As Local No. 102 gave timely notice to forestall the automatic renewal
of its contract with the Employer , we find that the contract was, in fact, terminated and
is not a bar to this proceeding.
4 Matter of Ohio Power Company ( Canton Division ), 42 N. L . R. B 26.
6 Matter of The Ohio Power Company ( Canton Division ), 42 N. L. R. B. 420.
6 The parties agree that if they are not supervisors , the part-time working foremen are
physical, rather than non-physical employees.
7 See Matter of The Ohio Power Company, 74 N. L . It. B. 625.
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are absent, as when sick or on vacation, and they spend approximately
10 percent of their time in such capacity. As the part-time working
foremen exercise supervisory authority only sporadically and on in-
frequent occasions, we find that they are not supervisors within the
meaning of the Act. We shall include them in the unit.,
Employees with less than 6 months' service are designated by the
Employer as probationary employees. Upon the completion of 6
months of satisfactory work, these employees gain permanent employ-
ment status. The record discloses that 90 percent of the employees
so hired remain with the Employer after the trial period. These
employees have been excluded from units in prior decisions either by
stipulation of the parties,° or because the record did not indicate their
expectancy of continued employment by the Employer 10 In view of
the evidence of great expectancy of continued employment processed
by the probationary employees in this case, we shall include them in
the unit."
We find that all physical employees of the Canton Division of The
Ohio Power Company, including transmission and distribution patrol-
men, troublemen, linemen, and groundlnen, substation maintenance
men, metermen, appliance service men, storeroom men, janitors, dis-
trict service men, service meter readers, operators and maintenance
men in the steam plant, part-time working foremen, and employees
with less than 6 months' service, but excluding clerical, office, and
professional employees, employees in managerial capacities, employ-
ees in specific temporary jobs, the store records clerk, meter clerks,
engineers' assistants, trouble dispatchers, watchmen, guards, fore-
men,12 and all other supervisors, constitute a unit appropriate for the
purposes of collective bargaining within the meaning of Section 9 (b)
of the Act.
DIRECTION OF ELECTION 13
As part of the investigation to ascertain representatives for the
purposes of collective bargaining with the Employer, 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 super-
vision of the Regional Director for the Eighth Region, and subject to
8 Matter of American Window Glass Co., 77 N L. R. B 1030
° Matter of The Ohio Power Company, 74 N L R B., 625; 73 N. L. R. B. 384.
10 Matter of The Ohio Power Company, 77 N. L. R. B. 320.
1 Matter of Beattie Manufacturing Co , 77 N. L. R B. 361.
The working foreman in the garage is excluded under this classification.
is Any participant in the election directed herein may, upon its prompt request to, and
approval thereof by, the Regional Director, have its name removed from the ballot.
THE OHIO POWER COMPANY 585
Sections 203.61 and 203.62 of National Labor Relations Board Rules
and Regulations-Series 5, as amended, among the employees in the
unit found appropriate in paragraph numbered 4, above, who were
employed during the pay-roll period immediately preceding the date
of this Direction of Election, 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 rein-
stated prior to the date of the election, and also excluding employees
on strike who are not entitled to reinstatement, to determine whether
they desire to be represented, for purposes of collective bargaining,
by Utility Workers Union of America, CIO, or by International
Brotherhood of Electrical Workers, AFL, or by neither.