The Toledo Edison Co.

National Labor Relations Board - Board Decisions

Aug 8, 1945

63 N.L.R.B. 217 (N.L.R.B. 1945)

In the Matter of THE TOLEDO EDISON COMPANY and UTILITY WORKERS
ORGANIZING COMMITTEE (CIO)
Case No. 8-R-1804.-Decided August 8, 1945
Welles, Kelsey, Cobourn cC Harrington, by Mr. George D. Welles,
of Toledo, Ohio, for the Company.
Mr. C. C. Smith, of Cleveland, Ohio, for the CIO.
Mr. Joseph A. Padway, by Mr. Robert A. Wilson, of Washington,
D. C., and Mr. W. H. Wilson, of Akron, Ohio, for the IBEW.
Messrs. R. M. Daugherty and William Hostetter, of Toledo, Ohio,
for the Office Employees (AFL).
Mr. Nathan Saks, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTION
STATEMENT OF THE CASE
Upon a petition duly filed by Utility Workers Organizing Com-
mittee (CIO), herein called the CIO, alleging that a question affecting
commerce had arisen concerning the representation of employees of
The Toledo Edison Company, Toledo, Ohio, herein called the Com-
pany, the National Labor Relations Board provided for an appro-
priate hearing upon due notice before Thomas E. Shroyer, Trial
Examiner. Said hearing was held at Toledo, Ohio, on April 30, 1945.
The Company, the CIO, and International Brotherhood of Electrical
Workers, Local Union 245 (AFL), herein called the IBEW, appeared
and participated.' All parties were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evi-
dence bearing on the issues. At the hearing the Company and the
IBEW moved that the petition be dismissed on several grounds. For
the reasons set forth in Section III, infra, the motions of the Company
and the IBEW are hereby denied. The Trial Examiner's rulings
' Although Office Employees International Union, Local No. 65 (AFL), intervened at the
hearing for the purpose of protecting its interest in the meter readers of the Company,
whom it currently represents by virtue of a contract as part of a clerical unit , it with-
drew shortly after the beginning of the hearing upon the amendment by the CIO of its
unit request so as to exclude meter readers.
63 N. L. R. B., No. 31.
217
218 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY
The Toledo Edison Company, an Ohio corporation, is engaged in
the sale and distribution of electrical power and steam for heating
purposes. The Company not only furnishes all electric power used in
Toledo, Ohio, but also sells and distributes its power over an area of
2,100 squares miles in northwestern Ohio. It uses annually raw ma-
terials valued in excess of $2,000,000, more than 50 percent of which
comes from points outside the State of Ohio, and the value of its
annual sales exceeds $5,000,000. While none of its electrical power or
steam goes outside the State, approximately 65 percent is used by cus-
tomers in Toledo operating various enterprises in interstate commerce.
We find that the Company is engaged in commerce within the mean-
ing of the National Labor Relations Act.
H. THE ORGANIZATIONS INVOLVED
Utility Workers Organizing Committee, affiliated with the Congress
of Industrial Organizations, is a labor organization admitting to mem-
bership employees of the Company.
International Brotherhood of Electrical Workers, Local Union 245,
affiliated with the American Federation of Labor, is a labor organiza-
tion admitting to membership employees of the Company.
III. THE QUESTION CONCERNING REPRESENTATION
On June 14, 1937, the Company executed a contract with the IBEW
covering, in general, the employees involved herein. The contract
provides that it "shall remain in force . . . from June 1, 1937, and
shall continue from year to year thereafter, unless either party to the
Agreement shall notify the other party in writing at least sixty days
prior to June 1st of the desire to terminate the contract on May 31st of
the succeeding year, ...." No notice of termination has ever been
given by either party to the other, and the contract has renewed itself
automatically from year to year. On March 30, 1945, the CIO advised
the Company that it represented a majority of the Company's em-
ployees, and that it desired to negotiate a contract for such employees.
The Company refused for the reason that it had an existing contract
with the IBEW covering these employees.
• • THE TOLEDO EDISON COMPANY 219
At the hearing the Company and the IBEW contended that the
petition should be dismissed on the grounds that : (1) the existing con-
tract between the Company and the IBEW is a bar to a present deter-
mination of representatives; and (2) the Board should not accept
jurisdiction of the proceeding because of the rider to the current
Appropriations Act limiting the use of Board fund S.2
As to the first ground urged, the Company and the IBEW contend
that although the CIO made its representation claim 60 days prior
to June 1, 1945, the contract has been automatically renewed each
year, and cannot, in conformity with its requirement of 14 months'
notice of termination, be effectively terminated until June 1, 1946.
Accordingly, they urge that the Board may not entertain a petition
until shortly before June 1, 1946, implying thereby that the Board
could now proceed to a determination of representatives only if the
,CIO had made its representation claim as long ago as 60 days prior
to June 1, 1944. We do not agree with this contention. Although
no specific evidence was adduced at the hearing to indicate that 14
month automatic renewal clauses are or are not customarily included
in contracts in the electric utility industry, we know, from the Board's
experience in the field of labor relations, that such a clause is longer
than that usually employed by trade union custom in this industry.
We find that the failure of the CIO to make its representation claim
in 1944 prior to the effective date of the unduly long automatic renewal
clause did not preclude it from subsequently making an effective rep-
resentation claim.3 We find further that the claim of the CIO was
timely, and, therefore, that the contract is not a bar to a present deter-
mination of representatives.
The position taken by the Company and the IBEW with respect to
the Appropriations Rider is untenable, since the Rider does not apply
to representation cases.'
The IBEW urges dismissal of the petition on the additional ground
that the CIO has not presented a sufficient showing of representation
in the unit petitioned for. There is, however, no merit to this con-
tention, since a statement of a Board agent, introduced into evidence
at the hearing, sufficiently indicates that the CIO represents a sub-
stantial number of employees in the unit hereinafter found appro-
priate.,'
2 Labor-Federal Security Appropriation Act, 1945, approved June 28, 1944 , Chapter
302-Public Law 373
2 Cf. Matter of American Finishing Company, 50 N. L. R. B. 313; and Matter of New
York Central Iron Works, 56 N L R B 812.
4 See Matter of Joseph Dyson d• Sons , Inc, 60 N . L. R. B. 867.
6 The Field Examiner reported that the CIO submitted 230 authorization cards ; that the
names of 187 persons appearing on the cards were listed on the Company 's pay roll of
April 10, 1945 , which contained the names of 620 employees in the alleged appropriate
unit ; and that 183 cards were dated between June 1944 and April 1945, and 4 were
undated.
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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
The CIO seeks a unit of all operating, production, distribution, serv-
ice, and maintenance employees in all divisions of the Company,6
including the Gas Department at Defiance, Ohio, and the Heating
Department at Toledo, Ohio, but excluding, inter alia, certain load
dispatchers, all stores inspectors, the service supervisor, and all fore-
men. The Company and the IBEW agree generally with the com-
position of this unit, except that they urge the inclusion in the unit
of all load dispatchers, all stores inspectors, the service supervisor,
and all foremen.
History of Collective Bargaining
The IBEIV has bargained with the Company since about 1902, and
has had continuous contracts with the Company since 1916, covering,
in general, the employees involved herein. Foremen have been in-
cluded in these contracts since 1916, and load dispatchers, stores in-
spectors, and the service supervisor have been included in these con-
tracts since 1935, the year in which the latter categories of employees
were first organized by the IBEW. However, the employees of the
Gas Department at Defiance and the Heating Department at Toledo
have never been covered by any of these contracts.
Gas Department at Defiance and Heating Department at Toledo
All parties agreed at the hearing that the employees in these two
departments, should be included in the appropriate unit. The record
shows that these employees enjoy working conditions similar to those
of the employees in the electric department, and that there is con-
siderable interchange of employees between these two departments
and the electric department. In view of these facts, we shall adopt
the agreement of the parties, and shall include the operating, pro-
duction, distribution, service, and maintenance employees of these two
departments in the unit hereinafter found appropriate.
Disputed categories
Load Dispatchers: These employees direct the operations of the
electric system of the Company; this is accomplished by telephoning
necessary orders in connection with the operation of the system to,
The Company has organized its operations into four geographical divisions , namely, the,
Toledo , Defiance , Fremont, and Lake Shore divisions
THE TOLEDO EDISON COMPANY 221
various individuals throughout the system. They know at all times
the status of every switch and piece of rotating equipment. Switches
in all substations and power plants are opened or closed only upon
their express orders. They are highly trained, and by reason of their
having come up through the ranks, possess a thorough knowledge of
the electric system, its equipment, and personnel.
• The CIO would exclude the load dispatchers in the System Operat-
ing and Substation Department and the special load dispatchers in the
Line Department on the ground that they are supervisory employees,
but would include the regular load dispatchers in the Line Depart-
ment. The Company and the IBEW, who have included all load dis-
patchers in the contract unit since 1935, urge the continued inclusion of
all load dispatchers in the collective bargaining unit. As indicated
above, while load dispatchers are highly trained and in the course of
their work issue orders to various individuals throughout the Com-
pany's electric system, it is clear that they have no subordinates under
them whose work they regularly direct, and that all their orders go to
individuals having supervisors of their own. Moreover, there ap-
pears to be no basis for the CIO's position that some load dispatchers
be excluded and some included, since the evidence discloses that the
duties of all load dispatchers are substantially similar, the only differ-
ence being that the duties of some load dispatchers are more complex
than the duties of others. Thus, since all load dispatchers perform
substantially the same duties, have been included in the contract unit
since 1935,' and do not exercise supervisory authority within our
customary definition, we shall include all load dispatchers in the unit .8
Foremen: The Company employs approximately 61 foremen in its
various departments. All of them have substantially the same duties
and responsibilities. Each foreman has from 3 to 15 employees under
his supervision, and does practically no manual work. Their chief
duty consists of transmitting the orders of the assistant superintendent
of the department, who is their immediate superior, to their subordi-
nates, and of directing the work of their subordinates in carrying out
such orders.
The CIO would exclude foremen on the ground that they are super-
visory; the Company and the IBEW would include them, pointing to
the long history of inclusion of these employees in the contract unit.
While such bargaining history is a factor to which the Board attaches
' Our usual practice is not to disturb an established contract unit in the absence of com-
pelling circumstances warranting a departure therefrom See Matter of C J Peterson,
et at ., 60 N L. R B. 1070.
8 See Matter of Cincinnati Gas and Electric Company, 57 N. L R B . 1298 , wherein a
category of employees designated , as "powerhouse switchboard operators ," having duties
substantially similar to those of the load dispatchers involved herein , were included in a
unit similar to the one petitioned for herein even though they had direct subordinates,
since it did not appear that they exercised supervisory authority over their direct subordi-
nates or the employees in any other departments.
222 DECISIONS -OF NATIONAL LABOR RELATIONS BOARD
weight, it is not necessarily controlling. Here, however, it does not
not stand alone in support of the Company-IBEW contention. We
are also satisfied that the testimony falls short of establishing' that
these foremen fall within our customary definition of'supervisory em-
ployees. Thus, although the foremen direct the work of the subordi-
nates, they do not have the authority to hire, discharge, discipline,
or change the status of these employees. While they have authority
to make recommendations concerning employee discipline to an assist-
ant superintendent, it is nevertheless the general practice on such
occasions for the assistant superintendent to call in both the foreman
and the employee involved and fully to investigate the matter before
taking any action. Since an independent investigation follows any
such recommendation by a foreman, it is clear that foremen do not
have the authority "effectively" to recommend disciplinary action.
On all the facts, we conclude that foremen are not supervisory em-
ployees, and we shall include them in the unit.
Stores Inspectors: The Company employs 3 stores inspectors; 1 at
the Central Warehouse who supervises 14 men ; 1 at the Power Plant
who supervises 3 men; and 1 at the Edison Building who at the present
time has no one under him. The duties of the 2 who have men under
them consist of overseeing their respective storerooms and directing
the work of their subordinate employees. The duties of the 1 at the
Edison Building are those of an ordinary storeroom clerk. All 3
stores inspectors are under the supervision of the superintendent of
stores.
The CIO would exclude all stores inspectors on the ground that they
are supervisory employees, while the Company and the IBEW would
include them for reasons similar to those urged with respect to the •
foremen.0 The record indicates, as in the case of the foremen, that,
while the stores inspectors at the Central Warehouse and the Power
Plant direct the work of their subordinates, they do not have the
authority to hire, discharge, discipline, or change the status of these
employees. Moreover, like the foremen, their disciplinary recom-
mendations are subject to the independent investigation of the super-
intendent of stores who exercises his own discretion in the disposition
of such matters. We are of the opinion, therefore, that, like the fore-
men, the stores inspectors do not exercise supervisory authority within
the meaning of our customary definition. Accordingly, we shall in-
clude all stores inspectors in the unit.
Service Supervisor: The parties take the same position with re-
spect to the inclusion or exclusion of this employee as they do in the
case of store inspectors and foremen. This employee has approxi-
mately 10 men under his supervision. It appears that his duties are
9 As noted above, stores inspectors have been included in the contract unit since 1935.
THE TOLEDO EDISON COMPANY 223
substantially similar and his alleged supervisory authority is com-
parable to those of the foremen and the stores inspectors at the Central
Warehouse and the Power Plant. Accordingly, we find that the service
supervisor is not a supervisory employee, and we shall include him in
the unit.
We find that all operating, production, distribution, service, and
maintenance employees, including all load dispatchers, foremen, stores
inspectors, and service supervisor, in all divisions of the Company, in-
cluding the Gas Department at Defiance, Ohio, and the Heating
Department at Toledo, Ohio, but excluding meter readers, guards,
office, clerical, sales, and technical employees,10 and all supervisory
employees with authority to hire, promote, discharge, discipline, or
otherwise effect changes in the status of employees, or effectively rec-
ommend such action, 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 the em-
ployees 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 Direc-
tion.
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 Rela-
tions 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 The Toledo Edison
Company, Toledo, Ohio, 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 Eighth 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 Regulations, among the 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 the 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
10 All parties are agreed as to these exclusions.
224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 Utility Workers Organizing
Committee, affiliated with the Congress of Industrial Organizations,
or by International Brotherhood of Electrical Workers, Local Union
245, affiliated with the American Federation of Labor, for the pur-
poses of collective bargaining, or by neither.