Upper Peninsula Power Co.

National Labor Relations Board - Board Decisions

Nov 30, 1954

110 N.L.R.B. 1082 (N.L.R.B. 1954)

1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not thereby limited in application to future elections, but to any
future case involving the circulation of an altered sample ballot, to
which a valid objection was raised.
We find that the Petitioner herein, by circulating a copy of the
Board's official ballot, altered as described above, tended to interfere
with a free' choice in the election, and the Employer has validly
objected to this conduct. Accordingly, we shall set aside the election
and direct that a new election be conducted by the Regional Director
at such time as he deems proper.
[The Board set aside the election and remanded this proceeding
to the Regional Director for the Second Region for the purpose of
conducting a new election.]
UPPER PENINSULA POWER COMPANY, PETITIONER and LOCAL 510,
INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORKERS, AFL and
UNITED STEELWORKERS OF AMERICA, CIO
UPPER PENINSULA POWER COMPANY and LOCAL 510, INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, AFL, PETITIONER. Cases
Nos. 18-1 M-151 and 18-RC-92138. November 30, 1954
Decision and Direction of Elections
Upon petitions duly filed under Section 9 (c) of the National Labor,
Relations Act, a hearing was held before Clarence A. Meter, hearing
officer. The hearing officer's rulings made at the hearing are free from
prejudicial error and 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.
2. The labor organizations involved claim to represent certain
employees of the Employer.'
3. Questions affecting commerce exist concerning the representation
of employees of the Employer within the meaning of Section 9 (c) (1)
and Section 2 (6) and (7) of the Act.
4. The Employer engages in electric power generating, transmis-
sion, and distribution operations in the Upper Peninsula of Michigan.
Its operations are divided into five administrative districts referred
to as Houghton, Calumet, Ontonagon, Ishpeming, and Iron River.
The Employer and IBEW contend that an employerwide unit includ-
ing operating, maintenance, and construction employees in all five
districts is the only appropriate unit. Steelworkers contends that a
' Local 510, International Brotherhood of Electrical Workers, AFL, and United Steel-
workers of America, CIO, will be referred to hereinafter as IBEW and Steelworkers,
respectively.
110 NLRB No. 177.
UPPER PENINSULA POWER COMPANY 1083
unit of similar composition confined to the Ishpeming district is
separately appropriate.
The Employer was formed in 1937 as a result of a merger of three
electric utilities : Old Houghton County Electric Co ., Copper District
Power Co., and Iron Range Light and Power Co. The systems of
the first two of these companies , which included generating as well
as distribution facilities located in adjoining counties , are now oper-
ated as three contiguous administrative districts , Houghton , Calumet,
and Ontonagon . The system of the third company , which purchased
its power from the Wisconsin -Michigan Power Co . for distribution
within a small separate area near the Wisconsin State line , is operated
by the Employer as the Iron River district.
In December 1953, the Employer acquired from Cliff Power &
Light Co. and Michigan Gas and Electric Co. (Northern Division)
their electric transmission and distribution systems which it now oper-
ates as a continuous system, called the Ishpeming district , serving
parts of four counties.
The IBEW has bargained for the operating , maintenance, and
construction employees in the Houghton, Calumet , and Ontonagon
districts since 1944 . Steelworkers with its Locals 3531 and 3693,
respectively , has represented similar employees of Michigan Gas and
Electric 's Northern Division since 1945 and of Cliff Power & Light
since 1946. However, at the time of the purchase of the electric trans-
mission and distribution systems of those companies , the Employer
did not assume the Intervenor 's contracts, with the result that the
employees of Michigan and Cliff who accepted employment with the
Employer 2 have been unrepresented since December 1953. Thera
has been no collective -bargaining history for Iron River district
employees.
The Employer 's central offices are located in Houghton , where the
officers of the Employer are located and actively conduct the Employ-
er's business . The officers exercise close control over the Employer's
operations delegating only day-to - day operating authority to district
supervision . The Employer's president handles all labor relations
matters and negotiations , public relations , and dealings with various
regulatory agencies , in addition to exercising general supervision over
all operations . The vice president also serves as general superin-
tendent over physical operations , planning and directing mainte-
nance, construction , power production , and service. In addition he
serves as district manager of the Houghton district . The secretary-
treasurer supervises all accounting and clerical functions throughout
the system. He establishes routine procedures for all these functions
and sees that they are followed by district clerical personnel. All
' 2 There were also other employees in the units represented by Steelworkers who con-
tinued to work for Michigan and Cliff and are still represented by the Steelworkers.
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
consumer bills, payrolls, and permanent records for the entire system
are made up under his supervision from information forwarded from
the district offices to the Houghton office.
At the head of each district, except Houghton, is a district manager.3
His functions are generally to carry out company policies originated
by the officers. More specifically he supervises the distribution of
energy, meter readings, collections, servicing of appliances, and con-
struction and maintenance of the transmission lines. The district
managers do not have authority to make purchases or expenditures
above $15, nor can they sign company checks. All expenditures above
$15 require approval of the central management and all checks are
signed by one of the Employer's officers. In addition, the authority
of the district manager with respect to personnel matters is also
limited. They usually can hire or discharge employees only after
specific approval by central management. They cannot alter hours
of work or authorize overtime except in emergencies. They do not
participate in collective-bargaining negotiations.
The Houghton, Calumet, and Ontonagon districts are covered by
a continuous system of transmission and distribution lines. The
electrical energy is supplied from hydroelectric dams and steam
plants operated by the Employer, also located in these districts. All
electrical energy produced is pooled and distributed as needed
throughout the three districts.
The Ishpeming district is east of the Houghton, Calumet, and
Ontonagon districts and at the time of the hearing was covered by
a separate system of transmission and distribution lines. All of its
electrical energy was purchased from generating plants operated
by Cliff Power & Light Co. and other power producers, and there was
no physical connection between the lines in the Ishpeming district
and those in any other district. However, the Employer introduced
testimony that it was in the process of starting construction of a
68-mile high voltage transmission line to tie up the Ishpeming lines
with those in the Houghton, Calumet, and Ontonagon districts. At
the time of the hearing in January 1954, 80 percent of the surveying
had been completed, right-of-way for more than 20 miles had been
purchased, engineering had been completed, and materials were being
ordered. The Employer expected the connecting line to be completed
sometime during the fall of 1954. After its completion, the Employer
proposes to construct a central dispatching station and pool the elec-
trical energy in the four districts so that each of the presently sepa-
rate transmission systems can supplement the power supply of the
other during their respective peak periods. The Houghton office is
about 89 miles from the Ishpeming office; the distances from the
3 The position of district manager in the Calumet district had been vacant for about
a year at the time of the :hearing. During this period the vice president and his assistant
assumed the functions of the Calumet district manager.
UPPER PENINSULA POWER COMPANY 1085
Calumet and Ontonagon offices to Ishpeming are greater. It appears
that at their closest points the distribution lines of the Ishpeming dis-
trict are more than 40 miles from those of the Houghton district 4
The Iron River district is south of the Houghton, Calumet, and
Ontonagon districts and southwest of the Ishpeming district. Its
transmission lines are completely separate from those of the other
districts and there is no evidence that the Employer intends to tie
them in. All energy distributed in that district is purchased from
other producers. The lines of the Iron River district appear to be
at least 60 miles from those of any other district.
There is considerable interchange of employees between the Hough-
ton, Calumet, and Ontonagon districts. However, there was no evi-
dence of interchange of employees between the Ishpeming or Iron
River districts and any other district at the time of the hearing,
although there was general testimony to the effect that such inter-
change did or would occur. All operational employees have similar
classifications and duties. Working conditions and hours of employ-
ment are also similar in all districts. The Employer contends that
the connection of the Ishpeming lines with those of the Houghton,
Calumet, and Ontonagon districts will result in closer operational
integration of Ishpeming with the other connected districts, includ-
ing interchange of employees. Steelworkers contends that the geo-
graphical separation of Ishpeming from the other districts makes
temporary interchange of employees between the district and other
districts infeasible and highly unlikely.
It is thus apparent from all the foregoing'that a number of factors
including central control of management and labor relations, integra-
tion of clerical and accounting functions, and similarity of classifica-
tions and working conditions throughout the system; support a finding
that a systemwide unit is appropriate in accordance with the Board's
long established policy favoring systemwide units in the public utili-
ties field.' However, it is also clear that the operations in the Ishpem-
ing district are sufficiently independent of the rest of the Employer's
operations to warrant a finding that a unit confined to the employees
of that district is also appropriate. While the Ishpeming transmis-
sion lines may be connected with those 'of the Houghton, Calumet, and
Ontonagon districts in the near future, the area served by the Ishpem-
ing district will remain separated 'from, that served by the other 3
districts by more than 40 miles. Moreover, Ishpeming will continue
to be operated as a separate administrative, district, and so far as
appears interchange will be infrequent. Another indication of the
continuing separate identity of Ishpeming employees is the fact that
4 The distance information, is derived from, the Rand McNally Road Atlas and from
the record
5 See Pacific 0a8 and Electric Company , 87 NLRB 257 at 263 ; Rockland Light and
Power Company, 105 NLRB 365.
1086 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
all the immediate supervisors of the Ishpeming employees will con-
tinue to be located at the Ishpeming office and will supervise no other
employees. Accordingly, we find that the employees in the Ishpeming
district may constitute a separate appropriate unit, if they so desire,"
or may be included in the unit with the other employees of the
Employer. In these circumstances, we will direct a self-determination
election among the employees in the Ishpeming district to determine
whether they wish to constitute a separate appropriate unit or whether
they wish to become part of the systemwide unit.
There remains the question of the Iron River district employees
who, unlike the Ishpeming district employees, are not being sought
as a separate unit but as part of the systemwide unit. The fact that
the Iron River district employees have been excluded from the estab-
lished bargaining unit in the past precludes their merger into that
unit without affording the employees an opportunity to register their
desires in this matter.' Therefore, we will also direct a self -determina-
tion election among the employees in that district to determine whether
they wish to be included in the systemwide unit.
Accordingly, we will direct that elections be held in the following
voting groups :
A. All operating, maintenance, and construction employees in the
Employer's Ishpeming district, excluding office clerical, managerial,
and professional employees, watchmen, guards, and supervisors within
the meaning of the Act.
B. All operating, maintenance, and construction employees in the
Employer's Iron River district, excluding office clerical, managerial,
and professional employees, watchmen, guards, and supervisors within
the meaning of the Act.
C. All operating, maintenance, and construction employees in the
Employer's Houghton, Calumet, and Ontonagon districts, excluding
office clerical, managerial, and professional employees, caretakers,
part-time employees, watchmen, guards, and supervisors as defined
in the Act."
e Iowa Public Service Company, 1021 NLRB 401. In Rockland Light and Poser Co.,
supra; Elizabethtown Consolidated Gas Company , 93 NLRB 1270 ; and The Laclede Gas
Light Company, 77 NLRB 354, relied upon by the Employer and IBEW, there was no
geographical separation of operations and integration was, or was about to become,
complete
7 The Zia Company , 108 NLRB 1134, as modified in 109 NLRB 312 and 862; Montana-
Dakota Utilities Company, 110 NLRB 1056.
8 The parties were in substantial agreement as to the composition of the voting groups.
While Steelworkers contended that part -time employees and caretakers should be in-
cluded in the voting groups , there appear to be no employees in either category in the
Ishpeming district , the only district in which Steelworkers is seeking representation.
Accordingly, we find it unnecessary to consider the unit placement of these categories
in the Ishpeming district voting group. However , as the IBEW and the Employer agree
that these categories should be excluded from the systemwide unit in accordance with
their past practice at Houghton , Calumet, and Ontonagon , we will exclude them from
the other voting groups.
UPPER ,PENINSULA POWER COMPANY 1087
If a majority of the employees in voting group A vote for the
Steelworkers, they will be taken to have indicated their desire to
constitute a separate appropriate unit, and the Regional Director is
instructed to issue a certification of representatives to the Steelworkers
for such unit, which the Board under the circumstances finds to be
appropriate for purposes of collective bargaining. If a majority vote
for neither, they will be deemed to have expressed their desire to
remain unrepresented. If a majority of the employees in voting group
B vote against the IBEW, the employees in that voting group will be
considered to have indicated their desire to remain outside the pres-
ently recognized unit, and the Regional Director is instructed to issue
a certification of results of election to that effect.
However, if a majority of the employees in either voting group A
or voting group B do not vote as set forth above, such group or groups
will be appropriately included in the same unit with the employees
in voting group C and their votes will be pooled with those in voting
group C.9 The Regional Director is instructed to issue a certification
of representatives to the labor organization selected by a majority of
the employees in the pooled group, which the Board in such circum-
stances finds to be a single unit appropriate for purposes of collective
bargaining.
[Text of Direction of Elections omitted from publication.]
MEMBER MuRnociK, dissenting in part and concurring in part :
To the extent that my colleagues find that a systemwide unit of util-
ity employees may be appropriate, I am in agreement with the major-
ity decision.
I would not, however, ballot separately the Iron River employees
because it is my considered opinion-as indicated by my dissent in
Montana-Dakota Utilities Company, 110 NLRB 1056-that the
separate balloting of previously unrepresented groups of utility em-
ployees is inconsistent with the Board's frequent pronouncement that
the most appropriate unit in the utility field is a comprehensive one,
whether systemwide or systemwide-departmental. I would not, as
my colleagues do, extend to the utility industry, where the element of
uninterrupted service to the public by an integrated operation is so
important, the Board's recent ruling in The Zia Company, 108 NLRB
1134, 109 NLRB 312, a decision from which I also dissented. There
the Board voted separately a fringe group in a manufacturing estab-
lishment even though the union seeking to represent them sought an
election in the basic appropriate unit.
If the votes are pooled , they are to be tallied in the following manner : The votes
for the union seeking the separate unit shall be counted among the valid votes cast but
neither for nor against the union seeking to represent the more comprehensive unit;
all other votes are to be accorded their face value, whether for representation by the
union seeking the comprehensive unit or for no union.
1088 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As to the, employees of the Ishpeming district, who have had sepa-
rate representation and are sought as a separate unit, I would treat
them no differently than the Iron River employees, because it is my
belief that when there is a bargaining representative prepared to rep-
resent the optimum unit, prior bargaining history and geographical
considerations serve only to becloud the issue of the appropriate unit
for a utility. See The Laclede Gas Light Company, 77 NLRB 354;
see also Southern Bell Telephone Company, 108 NLRB 1106.
GENERAL FOODS CORPORATION, BIRDS EYE DIVISION and MAINE FISH-
ERMEN'S ASSOCIATION OF RoCIKLAND, MAI NE, PETITIONER. Case No.
1-RC-36763. November 30,1954
Decision and Direction of Election
Upon a petition duly filed under Section 9' (c) of the National
Labor Relations Act, a hearing was held before Robert S. Fuchs,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Upon the entire record in this case, the Board finds : 1
1. The Employer is engaged in commerce within the meaning of
the Act.
2. The Petitioner and the Intervenor, Atlantic Fishermen's Union,
Seafarers' International Union of North America, A. F. L., are labor
organizations 2 claiming to represent certain employees of the
Employer.
3. A question affecting commerce exists concerning the representa-
tion of employees of the Employer within the meaning of Section
9 (c) (1) and Section 2 (6) and (7) of the Act.
4. The appropriate unit :
The Petitioner originally sought a unit of fishermen employed on
the Employer's nine fishing boats, excluding captains, mates, and
engineers . At the hearing, the petition was amended to include the
second engineer and to exclude lumpers. The Intervenor urges a
1 The Intervenor 's request for oral argument is denied because the record and the
briefs, in our opinion , adequately present the issues and the positions of the parties.
2 The Petitioner urges that the Intervenor is not a labor organization within the
meaning of the Act because it has bargained and is bargaining for supervisory personnel,
such as captains and mates . We find no merit in this contention as Section 2 (5) of the
Act defines a labor organization as a group which exists for the purpose of dealing with
employers concerning grievances , wages, conditions of work, etc . The Intervenor urges
that the Petitioner is not a labor organization within the meaning of the Act on the
ground that it is primarily a strike-breaking group and is employer dominated. We find
that the hearing officer correctly ruled in excluding evidence pertaining to this conten-
tion of the Intervenor on the ground that these allegations raised issued involving unfair
labor practice charges filed by the Intervenor ( in Case No . 1-CA-1742 ), and may not be
considered in a representation proceeding . Times Square Stores Corporation, 79 NLRB
361 ;. Everett Plywood cE Door Corporation, 105 NLRB 17,.18.
110 NLRB No. 178.