The Ohio Power Co.

National Labor Relations Board - Board Decisions

Dec 17, 1948

80 N.L.R.B. 1334 (N.L.R.B. 1948)

In the Matter of THE OHIO POWER COMPANY and UTILITY WORKERS
UNION OF AMERICA (CIO)
Case No. 8-C-P2179
AMENDED DECISION
December 17, 1948
On August 9, 1948, the Board issued a Decision and Order in the
above-entitled proceeding," finding that the Respondent had engaged
in certain unfair labor practices affecting commerce and ordering
that the Respondent cease and desist therefrom and take certain af-
firmative action which the Board found will effectuate the policies
of the Act.
On October 20, 1948, the Board, desiring to reconsider its Decision
and Order and determine whether to amend the same, in accordance
with Section 10 (d) of the Act, issued an Order to Show Cause why
(1) it should not accept the offer of proof submitted by the Respond-
ent at the hearing on February 24, 1948, and thereupon consider
whether or not certain of the Respondent's employees classified as
control operators are supervisors within the meaning of Section 2
(11) of the Act, as amended, and why (2) upon acceptance of such
offer of proof and consideration of the above question, the Board
should not make such findings of fact and modifications of its De-
cision and Order as may appear appropriate. Thereafter, the Re-
spondent and the Union respectively filed responses to the Order to
Show Cause.
We have considered the responses of the parties and find that no
sufficient cause has been shown why we should not proceed as indi-
cated in the aforesaid Order to Show Cause. Accordingly, we hereby
accept the Respondent's offer of proof rejected by the Trial Examiner
and, upon the basis thereof, and the entire record in the case, we hereby
amend our Decision of August 9, 1948, to the limited extent hereinafter
indicated.2
1 78 N. L. R. B. 1134.
2 The Order issued in conjunction with the Decision of August 9, 1948, however , remains
in effect without change.
80 N. L. R. B., No. 205.
1334
THE OHIO POWER COMPANY 1335
As noted in the Intermediate Report,' the Respondent's chief de-
fense to the refusal to bargain allegation of the complaint is that the
bargaining unit alleged to be appropriate therein is not appropriate,
because it includes control operators who the Respondent contends
are supervisors within the meaning of the definition of "supervisor"
contained in Section 2 (11) of the Act, as amended.4 The Trial Exam-
iner found the Respondent's contention to be without merit because,
in his opinion, under Section 103 of the Labor Management Relations
Act,' the amendment made in Section 2 (11) was not operative as to
this case. The Trial Examiner therefore made no specific finding as
to whether the control operators are in fact supervisors under the
amended Act, but predicated his appropriate unit finding upon the
Board's prior unit determination in Case No. 8-R-2463.' In view of
findings hereinafter made with respect to the supervisory status of
the control operators under the amended Act, however, we deem it
unnecessary to adopt the Trial Examiner's conclusion as to the ap-
plicability of Section 103 to this case.
SUPPLEMENTAL FINDINGS
On April 14, 1947, the Board issued a Decision and Direction of
Election' finding, inter alia, an appropriate unit of all regular em-
ployees at the Respondent's Tidd plant, including control operators.
With respect to these control operators, whose inclusion or exclusion
from the unit by reason of their alleged supervisory status consti-
tutes the sole issue herein, the decision stated :
Control operators: The Tidd plant is probably the most highly
automatic electric generating plant in the industry. Practically
all the controls for operating the generating unit, consisting of
boilers, turbine, generators, fans, pumps and related auxiliary
and accessory equipment, is concentrated in a single control room.
Because of the automatism of the equipment only one control
operator aided by two assistants, an assistant control operator
' Issued on March 25, 1948.
4 Infra.
Section 103 provides :
No provisions of this title shall affect any certification of representatives or any
determination as to the appropriate collective bargaining unit, which was made under
section 9 of the National Labor Relations Act prior to the effective date of this title
until one year after the date of such certification or if , in respect of any such certifica-
tion, a collective -bargaining contract was entered into prior to the effective date of this
title, until the end of the contract period or until one year after such date, whichever
first occurs.
Matter of The Ohio Power Company, 73 N. L . R. B. 384. The amendments to the Act
were passed and became effective between the representation hearing and the complaint
hearing herein.
'Ibid.
1336 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and an auxiliary equipment operator, are required to perform the
work for which many more operators are needed in less highly
automatic generating plants. The control operator spends practi-
cally all his time in the control room controlling the various pieces
of equipment by push buttons or switches. Necessary work out-
side the control room is done by the assistant control operator or
the auxiliary equipment operator under the direction of the con-
trol operator. The control operators are licensed stationary engi-
neers of the State of Ohio. They are paid the highest hourly
rate in the plant. The control operator is responsible to the shift
operating engineer who in turn is under the supervision of the
operations supervisor. The latter takes his orders from the plant
superintendent. According to the Employer's superintendent of
plants, recommendations of a control operator as to the employ-
ment, discharge, or discipline of his assistants "would be given a
great deal of weight, but he would not, except under extreme cir-
cumstances, have anything to do with that." In view of the fore-
going we find that the control operators are not supervisors within
the Board's customary definition. As part of the regular operat-
ing force, we shall include them in the unit.
On June 10, 1948, the Board certified the Union as the exclusive
bargaining representative of the employees in the appropriate unit
upon the basis of election results which showed 22 votes cast for, and
20 votes against, the Union, and 1 challenged vote unopened. On
June 13, 1947, when the Union made its demand, and thereafter, the
Respondent refused to bargain with the Union, on the ground that
the inclusion in the unit of the 4 control operators in question renders
the unit inappropriate, and despite the Board's certification, removed
the statutory duty to bargain.
At the complaint hearing on February 24, 1948, the Respondent
sought to introduce further evidence bearing upon the supervisory
authority of the control operators. The Trial Examiner limited the
admission of such evidence to testimony showing that on December 1,
1947, the control operators were changed from hourly paid to salaried
employees receiving in excess of $325 per month and were made ex-
empt under the Wage-Hour Law. Certain additional evidence offered
by the Respondent was excluded by the Trial Examiner on the ground
that it was not shown that such evidence was newly discovered or
unavailable, or not known to the Respondent at the time of the rep-
resentation hearing, or that the Respondent had not been given full
opportunity to be heard. However, a proffer of the excluded evidence
was received in the form of testimony by the Respondent's witness,
THE OHIO POWER COMPANY 1337
who was fully cross-examined by counsel for the General Counsel and
the Union."
An accurate and detailed discussion of the Respondent's offer of
proof, as contained in the Intermediate Report, follows :
This proffer shows that the control operator is employed in
the control room where instruments register the operation of the
equipment at the plant. He is responsible to the shift operating
engineer who spends part of his time in the control room. In
the event an emergency is indicated on the instruments and the
shift operating engineer is performing other of his duties either
in or outside the plant, the control operator would, if he had the
opportunity, report it to the engineer; if he did not have the
opportunity to do so, he would proceed to meet the situation
or at the first opportunity he would reach for the microphone and
announce the circumstances on the public address system. The
shift operating engineer would generally know independently
of the emergency because of the variations in the sound of the
operating equipment. Normally, the employees at the plant are
directed in their work by their respective supervisors through a
series of work orders, but during a minor or major emergency the
control operator has authority to requisition and direct the ac-
tivities of substantially all the employees to keep the plant in
operation. Several times during the last winter, for example,
when coal deliveries were diverted to another point and the plant
used coal from storage which had been frozen and had the effect
of clogging the conveying system, the control operators requisi-
tioned men from the maintenance department to hammer on the
chutes and poke the coal along to maintain a stream of supply.
The proffer also shows that the respondent plans to add addi-
tional sections to the Tidd plant and that when the Tidd plant is
developed to its anticipated capacity, its output will be comparable
to that of the respondent's Philo plant. The respondent plans at
that time to set up a supervisory organization at the Tidd plant
which it considers comparable to that of the Philo plant, where all
persons in the supervisory organization are excluded from the
bargaining unit. The proposed organizational set-up at the Tidd
plant will consist of a shift operating engineer and 4 or 5 control
'Taking of the Respondent 's offer of proof in this fashion does not appear to conflict
with the Rules of Civil Procedure for the District Courts of the United States (Rule 43) ;
nor does it operate as a waiver of objection by counsel for the General Counsel and the
Union and therefore render the proffered evidence admissible , as contended by the Re-
spondent.
1338 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
operators, one operator for each of the additional sections to the
Tidd plant.'
As stated above, we have overruled the Trial Examiner 's rejection
of this offer of proof and have assumed as true the matter contained
therein for the purpose of determining whether, upon all the facts
before us, the control operators are "supervisors" within the meaning
of Section 2 (11) of the Act, as amended.
Section 2 (11) provides :
The term "supervisor" means any individual having authority,
in the interest of the employer, to hire, transfer, suspend, lay off,
recall , promote, discharge, assign, reward, or discipline other em-
ployees, or responsibly to direct them, or to adjust their grievances,
or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine
or clerical nature, but requires the use of independent judgment.
[Emphasis supplied.]
Except for the addition of the phrase "or responsibly to direct
them," Section 2 (11) reflects, in substance, the Board's customary
definition of "supervisor" prior to the enactment of the amendment .m
Interpreting in the disjunctive the specific authorities enumerated in
Section 2 (11),11 we are of the opinion that the power thereunder
"responsibly to direct" is sufficient to render an individual a "super-
visor" within the Act's definition. Legislative history indicates, how-
ever, that the broad scope implied in a literal construction of the
authority "responsibly to direct" was not intended by Congress, but
rather that a specific qualified meaning was attached to this phrase.
Senator Flanders, in offering this additional authority as an amend-
ment to the definition of "supervisor" in the Senate bill, apparently
desired specifically to encompass those individuals who engage regu-
larly in the basic acts of supervision but who do not exercise the
9 The Respondent indicated in its response to the Order to Show Cause that it is in
substantial agreement with this rdsumd of its proffer.
11 See National Labor Relations Board Eleventh Annual Report, p. 31 and Twelfth
Annual Report, p. 23. See also Senator Taft's comment respecting Senator Flanders' pro-
posed amendments to Sec. 2 (11), viz:
Mr. President, this merely adds to the definition of the word "supervisor." The
definition [of "supvisor"] in the [Senate] bill is that which has been used by the
National Labor Relations Board for the past 4 or 5 years ; but I have no objection
certainly to including the words "or responsibility [sic] to direct them" . . . 93 Cong.
Rec. 4805; Legislative History of LMRA, Vol. 2, p. 1304.
n N. L. R. B. v. Edward G. Budd Mfg. Co., 169 F. (2d) 571 (C. C. A. 6) ; see also
N. L. R. B. v. Brown & Sharpe Mfg Co., 169 F. (2d) 331, 335 (C C. A. 1) stating, in effect,
that it is of no consequence that alleged supervisors possess authority to use their inde-
pendent judgment with respect to some aspects of their work ; the decisive question is
whether they possess authority to use their independent judgment with respect to the
exercise by them of one or more of the specific authorities listed in Section 2 (11) of the
Act, as amended.
THE OHIO POWER COMPANY 1339
other specific powers of supervision set forth in the definition, e. g.,
power to hire, discharge, and effect changes in employment status,
which are vested exclusively in a "personnel manager or department."
These individuals, the Senator asserted, "responsibly direct" in the
exercise of the remaining "basic" functions of supervision, and still
"are above the grade of straw bosses, lead men, set-up men, and other
minor supervisory employees." 12
It is evident, therefore, that individuals having the authority "re-
sponsibly to direct" contemplated in Section 2 (11) fall within a
narrow area lying between those "above the grade of straw bosses,
lead men, set-up men and other minor supervisory employees," and
those who do not possess any of the other specific authorities enumer-
ated in the Act's definition. Apart from Senator Flanders' hypo-
thetical illustration, what constitutes such responsible direction must
necessarily be determined upon the facts in each case. Indeed, we have
held before and after the amendments that fringe individuals, such as
"lead men" and "set-up men," under certain circumstances, are super-
visors,13 and, under other circumstances, that they are not supervisors 14
One of the circumstances considered by the Board in determining
the supervisory status of an individual, where the evidence does not
fairly show that he possesses the power to exercise independent judg-
ment with respect to any of the authorities contained in Section 2 (11)
of the amended Att, is the proportion or disproportion of supervisors
" The applicable portion of Senator Flanders ' discussion of this amendment follows :
.. . As an employer for many years past , and until I resigned to enter this body,
I can say that the definition of "supervisor" in this Act seems to me to cover ade-
quately everything except the basic act of supervising . Many of the activities de-
scribed in paragraph ( 11) are transferred in modern practice to a personnel manager
or department . The supervisor may recommend more or less effectively , but the per-
sonnel department may, and often does, transfer worker to another department on
other work instead of discharging , disciplining, or otherwise following the recom-
mended action.
In fact, under some modern management methods, the supervisor might be deprived
of authority for most of the functions enumerated and still have a large responsibility
for the exercise of personal judgment based on personal experience , training, and
ability. He is charged with the responsible direction of his department and the men
under him . He determines under general orders what jobs shall be undertaken and
who shall do it. He gives instructions for its proper performance . If needed , he gives
training for the performance of unfamiliar tasks to the worker to whom they are
assigned.
Such men are above the grade of "straw bosses , lead men . set-up men , and other
minor supervisory employees ." As enumerated in the report , their essential mana-
gerial duties are best defined by the words "direct responsibility ," which I am sug-
gesting . . 93 Cong. Rec. 4804 ; Legislative History of LMRA , Vol. 2 , p. 1303.
18 Matter of Underwood Corporation, 67 N. L. R. B. 1017 ( set-up men) ; Matter of Grand
Central Airport , 70 N. L . R. B. 1094 ( lead men) ; Matter of Continental Industries, Inc., of
Kansas City, Missouri, 76 N. L R. B. 561 ( lead men ) ; see also Matter of United States
Gypsum Company . 79 N. L. R. B. 158 ( gang leader ) ; Matter of Olin Industries, Inc., 79
N. L. R. B . 455 (group leader).
14 Matter of American Optical Company, 63 N. L . R. B. 924 ( leadmen ) ; Matter of The
Schaible Company, 69 N. L. R. B. 522 (set-up men) ; Matter of General Forge, Inc., 76
N. L. R. B . 488 (set-up men ) ; see also Matter of The Austin Company, 77 N. L. R. B. 938.
1340 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
over rank-and-file employees in the unit. Thus, we have found, for
example, that certain persons were supervisors where a contrary find-
ing would leave only 3 supervisors for 175 employees,15 and where the
persons in question were responsible for the output of 8 to 30 em-
ployees.16 We have also excluded as a supervisor an individual who
was in sole charge of the plant over substantial periods of time.17 On
the other hand, we have included in a unit disputed persons, where
a contrary conclusion would hold that groups of 3 or 4 employees in
a relatively small organization are directly supervised in each instance
by 5 persons 18
It seems clear on all the evidence in this case that the control
operators do not possess direct authority "to hire, transfer, suspend,
lay off, recall, promote, discharge, assign, reward, or discipline other
employees." While the control operator on duty might direct the
work outside the control room of the assistant control operator and the
auxiliary equipment operator, only under "extreme circumstance"
would he be called upon to make recommendations as to the employ-
ment, discharge, or discipline of these assistants. Assuming, ar-
guendo, that the control operator does perform "supervisor" duties in
major and minor emergencies,", such as described hereinabove in the
Respondent's offer or proof, this sporadic and infrequent exercise of
authority is insufficient to invest him with the "supervisory" cloak
contemplated in the amended Act.20 Moreover, we find that the
Respondent's expansion plans as to the Tidd plant have no significant
bearing upon the present status of these employees, and that the higher
rate of pay and different mode of payment governing the control
operators are not determinative factors as to this issue.21 Nor do we
deem it material to the issue that these control operators remained on
duty at the Tidd plant, voluntarily or otherwise, while a strike was in
progress.22 Furthermore, the immediate and substantially constant
supervision exercised by each shift operating engineer, who, in turn, is
supervised by the operations supervisor and the plant superintendent,
convinces us that the control operators herein do not have such power
19 Matter of Morowebb Cotton Mills Company, 75 N. L R B. 987.
16 Matter of Steelweld Equipment Company, Inc , 76 N. L. R. B. 831.
17 Matter of Royal Tallow & Soap Co , Inc., 78 N. L. R. B. 834.
19 Matter of The Austin Company, 77 N. L. R. B. 938.
19 The necessary implication being that these are not normal and regular occurrences.
" See, P. g ., Matter of Providence Pubhc Market Company, 79 N. L. R. B. 1482
21 Cf. Matter of General Motors Corp , Chevrolet Forge, Spring and Bumper Division, 80
N. L. R. B 145.
22 Such evidence was offered by the Respondent in its motion to reopen the record after
the close of the complaint hearing; the motion was denied, as stated in our Decision and
Order of August 9, 1948.
THE OHIO POWER COMPANY 1341
"responsibly to direct" their assistants as is intended in the Act's defi-
nition of "supervisor." '
Accordingly, upon the entire record in the case, we find that the
control operators at the Respondent's Tidd plant are not supervisors
within the meaning of Section 2 (11) of the Act, as amended, and that
the Trial Examiner properly included them in the appropriate unit.
MEMBERS HOUSTON and GRAY took no part in the consideration of the
above Amended Decision.
23 See, e. g., Matter of The Austin Company , supra ; see also Matter of Alien-Morrison
Co., 79 N. L. R. B . 903; Matter of F2tzgerald Mills Corp ., 77 N. L . R. B. 1156.