Union Electric Co.

National Labor Relations Board - Board Decisions

May 1, 1975

217 N.L.R.B. 666 (N.L.R.B. 1975)

666 , DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union Electric Company and Local 1455 , Interna-
tional Brotherhood of Electrical Workers,
AFL-CIO, Petitioner andLocal 1439, International
Brotherhood of Electrical Workers, AFL-CIO, Pe-
titioner . Cases 14-UC-40 and 14-UC-41
May 1, 1975
DECISION AND ORDER
By MEMBERS FANNING, JENKINS, AND PENELLO
Upon petitions duly filed under Section 9(c) of the
National Labor Relations Act, as amended, a hearing
was held before Hearing Officer Roy V. Hayden of the
National Labor Relations Board. Following the close
of the hearing the Regional Director for Region 14
transferred this case to the Board for decision. There-
after all parties filed briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has reviewed the Hearing Officer's rul-
ings made at the hearing and finds that they are free
from prejudicial error. They are hereby affirmed.
Upon the entire record in this case, the Board finds:
1. The Employer is engaged in commerce within the
meaning of the Act and it will effectuate the purposes
of the Act to assert jurisdiction herein.
2. The International Brotherhood of Electrical
Workers was certified in 1945 as the bargaining repre-
sentative of a unit of the Employer's physical workers
which includes, for example, meter reader, overhead,
underground, trouble, and installation employees. The
following year that Union was certified to represent a
unit of office, clerical, sales, and technical employees.
Subsequently, Local 1439 was designated by the Inter-
national Union to deal with the Employer with respect
to the unit of physical employees' and Local 1455 to
represent the clerical-technical unit. The locals have
over the years entered into a series of contracts with the
Employer covering units of employees substantially
identical to the units set forth in the certifications.2
The most recent contract covering the physical work-
ers' unit provided that it would run from July 29, 1971,
to July 1, 1973, and year to year thereafter, absent
notice to modify or terminate. Local 1439's petition
involving that unit was filed on July 7, 1973. Local
1455 also entered into a 1971-73 agreement with the
Employer for its clerical-technical unit. That contract
was to run until June 30, 1973, and was subject to
I Actually that unit was divided among three locals , but we are concerned
only with that part represented by Local 1439.
2 Originally Local 1455's unit included professional employees, who,
however, rejected such representation in a Board election held in 1959
yearly automatic renewal , absent notice to modify or
terminate. Local 1455 filed its petition on June 6, 1973.
However, on August 12, 1974, Local 1455 entered into
a new agreement with the Employer, effective from
that date to June 30, 1975.3 That contract continued
unchanged the recognition clause of previous agree-
ments which was, and is, as set forth below, specific
with respect to the exclusions of certain types of cleri-
cals and other employees from the recognized' unit.
Thus, in part, it provides for the following exclusions:
ARTICLE I
Section 1 . . .
(b) Professional employees
(c) Employees of the Industrial Relations and Em-
ployee Relations departments, and other em-
ployees whose jobs are essentially concerned
with labor relations duties.
(d) Other employees occupying positions closely
allied to and associated with management.
(e) Secretaries to elected and appointed officers,
and secretaries to department heads and assist-
ant department heads listed in Appendix "A" of
this agreement.
The Petitioners by way of unit clarification here seek
to have included in their units some 150 individuals in
some 23 different classifications4 who have not in the
past been so included and who have therefore not been
covered by the various bargaining agreements. The Pe-
titioners predicate their requests for inclusion on the
ground primarily that the individuals sought fall within
the language of their certifications, do substantially the
same kind of work as employees within the unit, and
are not professional or managerial employees or super-
visors. The Employer opposes all requests for inclusion.
With respect to the status of the individuals sought, it
contends that they fall within one of the excluded
categories in the certifications and/or contracts and,
thus, that their continued exclusion from the units is
required by both Board policy and by the Act. It also
3 Local 1455's contract with the Employer was not fully executed until
August 12, 1974, that is, at a time after the close of the hearing in this
proceeding. However, on or about August 21, 1974, the Employer filed a
motion with the Board requesting that the record be reopened solely for the
purpose of introducing the contract into evidence. Local 1455 opposes the
motion, although it does not question-but in effect concedes-both the
authenticity and relevancy of the contract. Rather its opposition is based on
the legal effect to be given to the contract with respect to the issues in this
proceeding As the contract does cover the unit involved in Local 1455s
petition it is, we find, clearly relevant. Consequently, we hereby grant the
Employer's motion and receive the contract into evidence
4 This number of 23 classifications has no decisional significance and is
dependent on what is considered a separate classification . Thus, for exam-
ple, if every type of foreman, e g., yard foreman, night foreman, and so forth,
and if every type of supervisor were considered separate classifications, then
the number of classifications would climb to 40 or more. Also, a number of
classifications are found in different functions and departments. If each
appearance is counted separately, then the proceeding involves over 60
classifications
217 NLRB No. 124
UNION ELECTRIC COMPANY
argues at length that, as the Petitioners were seeking
the inclusion,of contractually or historically excluded
individuals and classifications, they have not presented
proper cases for unit clarification. On this point, with
but a few exceptions which are discussed infra, we are
in agreement with the Employer.
Unit clarification, as the term itself implies, is appro-
priate for resolving ambiguities concerning the unit
placement of individuals who, for example, come
within a newly established classification of disputed
unit placement or, within an existing classification
which has undergone recent, substantial changes in the
duties and responsibilities of the employees in it so as
to create a real doubt as to whether the individuals in
such classification continue to fall within the
category-excluded or included-that they occupied in
the past. Clarification is not appropriate, however, for
upsetting an agreement of a union and employer or an
established practice of such parties concerning the unit
placement of various individuals, even if the agreement
was entered into by one of the parties for what it claims
to, be mistaken reasons or the practice has become es-
tablished by acquiesence and not express consent.'
Here, most of the classifications or jobs sought by the
Petitioners have been excluded from their units for
substantial periods of time-in some instances for as
long as 20 years. And with respect to Local 1455 those
it seeks to add to its unit include not only historically
excluded individuals but, as it, concedes, also a "sub-
stantial number of classifications" specifically excluded
by certain clauses of its past and present agreements
with the Employer.' Consequently, we are faced for
the most part with claims by the Petitioners that cannot
appropriately be resolved in a unit clarification pro-
ceeding.
To be sure, the Petitioners make certain broad
claims-apparently intended to bring their cases within
the reach of clarification-concerning changes in the
Employer's operations; alterations in the duties, re-
sponsibilities, and work practices of employees and
other individuals; the creation of new classifications;
and the interposition of new levels of management.
Nevertheless, when discussing the particular individu-
5 Plough, Inc, 203 NLRB 818 (1973), and cases there cited A possible
exception to this broad statement would be a situation involving agreed
inclusions of individuals who are not employees within the meaning of the
Act. See, for example, Wallac&MurrayCorporation, SchwitzerDivision, 192
NLRB 1090 (1971); Peerless Publications, Inc, 190 NLRB 658 (1971) We
are not, however, concerned with any such situation here
6 As has been noted, sec 1, of Local 1455's contracts with the Employer
provides for a basic unit of technical and clerical employees, excluding
guards, professionals , supervisor employees in the industrial relations and
employee relations departments , and secretaries to elected and appointed
officers and to department heads listed in "Appendix A" of the agreements
Most of the clericals Local 1455 now seeks to have included in its unit are
secretaries coming within the Appendix A exclusionary language, while
some of the other requested individuals are in the employee relations depart-
ment
667
als or classifications they here seek to have included,
the Petitioners, with but a few exceptions, do not claim,
much less show, that any of the foregoing alleged
changes have had any specific, appreciable recent ef-
fects on the duties, responsibilities, or job practices of
such individuals or classifications as would warrant our
now determining whether, they are accretions to the
existing units. Rather, the Petitioners' basic position
would seem to be that it would be improper for the
Board to require that relevant changes-i.e., ones
creating a unit placement ambiguity-must first be
shown to exist before their requests for clarification can
be acted upon by this Agency. On the contrary, they
argue essentially that, as the requested individuals or
classifications come within the inclusionary language
of their certifications, the Board must now include
them in the recognized units irrespective of any con-
trary practices or contract provisions.' Thus, the main
thrust of their presentations has been to show that
those they seek to include by clarification do not fall
into some necessarily excluded category, such as confi-
dential employee or supervisor. But, as our discussion
above should make clear, even if the Petitioners did
prove that their requested individuals and classifica-
tions do not come within some such excludable
categories-and we express no opinion on such
matters-they would not thereby have raised a proper
case for unit clarification where, as here, contractual
and established exclusions are involved. Instead, the
issues thus raised are, as we have pointed out in the
past, ones to be resolved through the collective-bar-
gaining process' or in a proceeding under Section 9(c)
of the Act.9
As indicated above, most all of the individuals and
classifications here in dispute fall into either one or
7 For example , Local 1439 argues with respect to certain distribution
dispatchers excluded from its unit for over 20 years that the exclusion is
"arbitrary and capricious" and "is not justified by time." As for Local 1455,
it takes the position that the Board in carrying out its responsibilities to
determine the appropriate unit must decide if the individuals or classifica-
tions excluded by the provisions of the contract-provisions it alleges it was
forced to accept-can, under the language of its certification, be deemed
excluded That is, Local 1455 argues the Board must police the situation so
as to conform the contractually agreed-upon unit to the precise contours of
the certified unit The Board has rejected such an argument. See, e.g,
Plough, Inc., supra Also, an aspect of this argument is Local 1455's conten-
tion that the contractual exclusions of secretaries to various officers and
department heads and of employee relations department employees were
intended to apply to such secretaries and employees only if they are confi-
dential employees However, the language of the contract is explicit, and
clearly not so limited, and, thus, Local 1455's claim is little more than a
request that we rewrite in part its contract with the Employer
5 Local 1455 contends that it sought to bargain over the contractual
exclusions it has here put in dispute prior to signing the 1974-75 agreement,
but that the Employer unlawfully refused to bargain concerning such exclu-
sions It argues in part from this that we should grant its requests and include
the employees it seeks However , even if it were determined in an appropri-
ate unfair labor practice proceeding that the Employer had unlawfully
refused to bargain, the proper remedy would be an order that it bargain, not
a decision resolving the bargaining issues in Local 1455 's favor.
9 See, e.g., Copperweld Specialty Steel Company, 204 NLRB 46 (1973)
668 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
both of the categories discussed above-i.e., they are
either contractual and/or established exclusions from
the units10 -and in consequence the instant-petitions
for unit clarification are not, as we have found, a proper
means for raising valid issues concerning their unit
placement. Therefore, further consideration of the
situation of such individuals and classifications is un-
necessary and we shall for the reasons given above
dismiss the petitions with respect to all the requested
individuals and classifications," except those dealt
with below which raise matters requiring us to consider
each individual case on its merits before determining
whether any of them should be included as sought by
the respective Petitioners herein.
Case 14-UC-40: Local 1455 , Petitioner
Secretary-Confidential, Computer Service Function:
Local 1455 seeks to have included in its unit T. B.
Emmett , secretary since 1969 to A . S. Reck , both in his
present position of director of computer service func-
tion and in his former capacity as assistant controller.
At all times Emmett has been excluded , as have been
her predecessors in the position of secretary to the
assistant controller. Computer service was established
as a separate function in May 1972 out of the data
processing department , the methods department and
engineering computer service-all of which were
Reck 's responsibility administratively in his position as
assistant controller . The primary effect of the reorgani-
zation was, it appears , to give Reck greater administra-
tive authority over the three departments under his
control in his former capacity . There is no showing that
the changes had any effect whatsoever , in
Emmett 's-or any other employee 's-duties, respon-
sibilities , or place of work . Also, the record shows that
since 1969 Emmett has spent about 20 percent of her
time as secretary to the manager of internal audit, an
exempt position, and her unchanged over the
years.12 Consequently, we find that despite the formal
10 In some instances it is not clear from the evidence how long a disputed
job or classification has been in existence . Nevertheless , as it appears such
jobs or classifications are and have been excluded , and as there is no evi-
dence of any relevant changes affecting their unit placement or of there
being a recent creation , there is patently no ambiguity concerning their
exclusion and thus no basis for clarification Also supporting our conclusion
that the Petitioners have not for the most part raised proper issues for
clarification is the fact that practically all of the presently excluded classifi-
cations and individuals in dispute were so excluded prior to the Petitioner's
executing their 1971 -1973 contracts with the Employer See CF & I Steel
Corporation, 196 NLRB 470 (1972).
11 In view of our conclusion here, it is apparent that in this case the impact
of the contract signed by Local 1455 in August 1974 is at most minimal
because that Union has not properly raised unit clarification issues subject
to defeat by any such subsequently executed contract covering the disputed
classifications
12 Emmett also works as a stenographer for L A. Rawlings in his capacity
as personnel assistant to Reck Even assuming-and we express no opinion
on that matter-that such work might be considered unit included, as it
reorganization of computer functions on the adminis-
trative level Emmett has continued to do substantially
the same work for the same individuals as she per-
formed in her historically excluded positions . There-
fore, we find no merit in Local 1455's request to include
her now and its request to do so is denied.
Engineers, Engineering Computer Services Depart-
ment: The Petitioner seeks to include Engineers Karr
and Minford , contending that they are not professional
employees , as contended by the Employer , but techni-
cals performing work "identical to that of unit included
Electronic Data Systems Processing Analysts and Con-
sole Operator Programmers ." Karr and Minford do,'as
the Petitioner stresses , perform in part the same kind
of work and utilize the same equipment in regard to the
Employer's computers as do unit-included technicals.
Nevertheless , unlike the technicals , they are both
graduate engineers , and the record shows that their
work also requires the use of mathematical techniques
involving statistics and calculus and of certain back-
ground information and understanding learned in their
engineering education , which are not required nor-util-
ized , insofar as the record shows, by the technical em-
ployees with whom the Petitioner seeks to include
them. Consequently, as a degree in engineering appears
to be a necessary requirement for the positions held by
Karr and Minford ,- we find they are professional em-
ployees specifically excluded from the unit.
Supervisor of Library Services, Library: P. Gatlin was
hired as a library technician , a classification included
in the unit by the Board in a 1967 decision . i3 How-
ever, just before that decision issued Gatlin was pro-
moted to supervisor of library services , a nonunit posi-
tion, and as a consequence Gatlin has never been
included in the unit . Nevertheless, the Petitioner now
contends that despite her promotion , and aside from
her title , Gatlin has remained in practice a library tech-'
nician who should be included in its unit. We find no
merit to this contention , notwithstanding that there is
some overlap in the research which Gatlin does as a
titled supervisor and -which she formerly did as a tech-
nician . Gatlin's promotion resulted in her filling the
position of supervisor of library services that had been
left vacant by the promotion of the former occupant to
the job of head librarian . In her new job, unlike in her
former one, Gatlin purchases books for the library and
is responsible for the operations of the library during
the head librarian's absences , which includes a month's
vacation, and it appears that she may responsibly direct
the work of employees working under her in the li-
brary . Consequently , we find that not only has the
occupies only about 20 percent of Emmett's time, it clearly is insufficient
alone to support her now being included in the unit
13 Union Electric Co, Case 14-UC-4 (1967), not reported in printed
volumes of Board decisions
UNION ELECTRIC COMPANY
Petitioner failed to show that Gatlin's promotion was
nothing more than a change in title to keep her out of
its unit, but also that it appears to have been,a bona fide
promotion to an established nonunit position. Thus, we
conclude that Gatlin in her position as supervisor of
library service is, irrespective of her supervisory status
under the Act, outside the unit, and the Petitioner's
request for her inclusion is denied.
Senior Clerk-Stenographer, Claims Department,
General Counsel Function: The Petitioner seeks to have
the senior clerk-stenographer included on the ground
tb a classification involves only the performance of
regular unit clerical work. We disagree but for the
reason that the senior clerk-stenographer is the secre-
tary to the claim agent and, thus, is an Appendix A
exclusion from the unit. However, at the time of the
hearing, J. Kueneke, the incumbent in the position, had
been out ill for some 15 weeks and S. Wrigley, a unit
clerical, had been assigned temporarily to take over
some of Kueneke's duties. Omitted from Wrigley's
work was, according to Claim Agent Cova, "anything
I think is confidential or shouldn't go to her." In view
of the foregoing, we can see no basis for finding that
Wrigley, as a partial substitute for Kueneke comes
within the contract exclusion for the claim agent's
secretary. Consequently, we agree with the Petitioner
that Wrigley in her limited substitute capacity remains
a unit clerical.
Assistant Engineer, Industrial Engineering Depart-
ment:: The Petitioner seeks to include T. D. Finnell, an
assistant engineer, on the ground that he is only en-
gaged in "semi-technical clerical work" and is, thus,
not an excluded professional. Finnell was hired on June
1, 1973, or only some 10 weeks before he testified at the
hearing. He has a bachelor of science degree in engi-
neering, is a member of the American Institute of In-
dustrial Engineers, and had, at the time of the hearing,
taken and passed the engineering in-training test. His
application for membership and approval of his passing
the test was then pending before the Missouri Society
oi' Professional Engineering Board. Also, according to
Finnell, one of the stated reasons for his being hired
was "to introduce some of the new industrial engineer-
ing techniques that are being taught in the school of
industrial engineering." However, the had not in the few
weeks of his employment had an opportunity to in-
troduce any such techniques and his work during that
time may well have been, as the Petitioner seems to
claim, essentially on a technical rather than profes-
sional level. Nevertheless, the above shows that Finnell
has the educational background of, and is otherwise
seeking to qualify as, a professional engineer, and that
he was employed for the purpose of acting in such
capacity. In these circumstances, and despite the fact
-ltroductory work may not have reached a full
669
professional level, wefind that Finnell is a professional
employee and thus excluded from the unit.
Senior Stenographer-Confidential, Construction De-
partment, Engineering, and Construction Function;
Secretary, Supply Service Function; Senior Stenogra-
pher-Confidential, Distribution Planning Department,
Transmission and Distribution Function; Senior Stenog-
rapher-Confidential, General Support Functions De-
partment, Senior Clerk Stenographer-Confidential, Re-
gional Operations Function, Alton, East St. Louis,
Jefferson, and Keobuk Districts: The Petitioner con-
tends that these various stenographers are not, as the
Employer maintains, secretaries to their respective de-
partment heads or assistants and thus are not Appendix
A exclusions. Rather, it claims, they are just general
clericals and thus belong in the unit. However, the
record shows that these individuals do work as secre-
taries for their department or assistant department
heads and that they spend not less than 70 percent of
their time working in such capacity. Accordingly, we
find that the record establishes that these individuals
are secretaries to department or assistant department
heads and thus excluded from the unit under the terms
of article I, section 1(e), of the contract. Further, inso-
far as the record shows,- these individuals and their
predecessors have always been outside the unit and,
thus, have historically been excluded therefrom as well.
Supervisor, Control Section; Supervisor, Regular Ac-
counts Section; Supervisor, Special Accounts Section of
Customer Accounts Department in Customer Business
Function: The Petitioner contends that these three ti-
tled supervisors, Mollerus, Huber, Sculley, have essen-
tially the same duties as leadmen who are in the unit
and therefore should be included therein. This argu-
ment, which the Petitioner also uses elsewhere, is with-
out merit because, conversely, it leads as much to the
conclusion that unit-included leadmen are supervisors
who should be excluded as to the conclusion the Peti-
tioner champions. It is also unsupported by the-record
which clearly shows that these alleged supervisors have
more authority and responsibilities than the leadmen in
that, inter alia, they grant time off, attend supervisors'
meetings, determine if overtime is needed and how
many employees are to work it, and are basically re-
sponsible for the operations of their section. Conse-
quently, we find Mollerus, Huber, and Scully to be
supervisors within the meaning of the Act and thus
properly excluded from the unit.14
10. The record also indicates that these supervisory positions have been
historically excluded, hence, the question of their unit placement cannot
properly be raised in this clarification proceeding However, in view of some
testimony concerning changes in 1971 in the customer accounts depart-
ment, we have considered these exclusions on their merits.
670 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Case 14-UC-41; Local 1439, Petitioner
Standards Coordinator, Transmission and Distribu-
tion Function, Distribution Planning Department, Spe-
cial Support Functions Section, T and D Standards
Group,- Foreman, Transmission and Distribution Func-
tion, Substations Department, South Maintenance and
Construction District: Local 1439 seeks the inclusion of
the standard coordinator and the foreman essentially
on the grounds that they are not supervisors. However,
the evidence in the record is wholly insufficient to reach
any conclusions concerning these classifications. Thus,
with respect to the standard coordinator, what evi-
dence there is came in incidentally with testimony con-
cerning another classification and was never developed,
while evidence concerning the foreman was introduced
through a witness who, -insofar as the record shows,
was not competent to testify concerning the duties and
responsibilities of the foreman. Furthermore, there is
no basis for concluding here that the standards coor-
dinator and the foreman are other than long-estab-
lished unit exclusions. For all these reasons, we find no
case for clarification has been made out concerning
these two classifications and their exclusion is con-
tinued.
Night Foreman, Supply Function, Motor Transporta-
tion Department: The Employer maintains several re-
pair garages with night crews which normally work
from 4 p.m. to midnight. Before 1969 or 1970, the
employees in each garage worked under the immediate
direction of a unit; included leadman, with the garages
under the supervision of a roving supervisor. Around
1970 the leadman classification was discontinued and
a night foreman assigned to each garage. Local 1439
claims the foreman have no more responsibility and
authority than the former leadmen and so should be
included in its unit. However, the record fully supports
the Employer's position that the night foremen are
supervisors. According to undisputed testimony, the
foremen have complete responsibility for the opera-
tions of their respective garages and the authority to
discipline and reprimand employees. More specifically,
they assign work, transfer employees from one job to
another or from one garage to another,15 determine
when overtime is to be worked, and receive and settle,
if possible, complaints or grievances from employees in
their garages . They also determine if lateness is
excusable-i.e., if the employee will be paid for the
missed time-and can and do permit employees to
leave early if they have in the foremen's judgment ade-
quate reason for doing so. In carrying out these various
15 Actually, it really takes two foremen to manage a temporary transfer
of an employee from one garage to another in that a foreman in one shop,
after determining that he needs extra help, must obtain the approval of a
foreman at another garage to send an employee over This is worked out on
the foreman level without any appeal to higher management.'
responsibilities , the foremen need not and usually do
not consult with higher supervision . Therefore we find
that, whether or not the foremen have more authority
and responsibility than the former leadman16 did, they
are nevertheless statutory supervisors and thus ex-
cluded from the unit.
Classifications Sought by Both Petitioners
Supervisors, Employee Relations Function, Personnel
Service Department, Educational and Service Division:
There are two individuals classified by the Employer as
supervisors who are involved here: (1) Thomas, who is
concerned mainly with arranging apprenticeship
classes and in effect monitoring or approving their con-
tent, and (2) Meesey , whose primary job is making
videotapes with respect to the work of the physical
employees . Thomas had held his job for only a few
months at the time of hearing , and it is claimed that he
received his present responsibilities in 1973. Meesey
has had his present job for 11 years.
Each Petitioner seeks to add these individuals to its
unit . With respect to Local 1455, they are excluded
from its unit by article I, section 1(c), of its bargaining
agreement which excludes all employees of the em-
ployee relations department . As for Local 1439's claim,
we find it wholly without merit as neither Thomas nor
Meesey performs physical work , such as that done by
its unit employees , and, with respect to their conditions
of employment and conduct of their work , they have
little community of interest with such employees. Fi-
nally, Meesey , having been in the same job for , l l years
but outside any established unit, is clearly with respect
to both locals and historical exclusion . Accordingly, we
find no basis for including these two supervisors in
either unit."
In conclusion , we have found with respect to all
classifications and individuals" placed in issue by the
two Petitioners that there is no basis for concluding
that they are or should be included in the existing
recognized bargaining unit of either Petitioner . Conse-
quently , we shall dismiss the petitions herein.
ORDER
It is hereby ordered that the petitions in Cases
14-UC-40 and 14-UC-41 be, and they hereby are,
dismissed.
16 The record shows, however , that in fact the night foremen have au-
thonty not possessed by leadmen . For example , leadmen could not deter-
mine that overtime must be worked, could not transfer employees from one
garage to another, and could not grant time off
17 Our result here, as our discussion should make clear , is not predicated
on any finding that these Education and Service division titled supervisors
are supervisors within the meaning of the Act On that point we express no
opinion
is With the exception, however, of Sharon Wrigley , whose contmi'¢
inclusion in the unit we have found to be appropriate