Wachusett Electric Co.

National Labor Relations Board - Board Decisions

Feb 19, 1946

65 N.L.R.B. 1207 (N.L.R.B. 1946)

In the Matter of WACHUSETT ELECTRIC COMPANY and INTERNATIONAL
BROTHERHOOD OF ELECTRICAL WORKERS, A. F. OF L.
In the Matter Of WACHuSETT ELECTRIC Co14IPANY AND LEOMINSTER GAS
COMPANY and BROTHERHOOD OF UTILITY WORKERS OF NEW ENGLAND,
INC.
Cases Nos . 1-R-2604 and 1-R--.64., respectively.Decided February
19, 19416
Mr. John E. Teagan, of Boston, Mass ., and Messrs . 0rie Van Rye,
E. G. Twohey, A. W. Smith, and E. W. Hitchcock, all of Leominster,
Mass., for the Companies.
Mr. Saul S. Feldman, of Boston , Mass., for the Electrical Workers.
Mr. Wm. F. Davis, of Fall River, Mass ., for the Utility Workers.
Mr. David V. Easton, of counsel to the Board.
DECISION
AND
DIRECTION OF ELECTIONS
STATEMENT OF THE CASE
Upon a petition duly filed by International Brotherhood of Electri-
cal Workers, A. F. of L., herein called the Electrical Workers, alleging
that a question affecting commerce had arisen concerning the repre-
sentation of employees of Wachusett Electric Company, Leominster,
Massachusetts, herein called Wachusett, and upon a petition duly filed
by Brotherhood of Utility Workers of New England, Inc., herein called
the Utility Workers, alleging that a question affecting commerce had
arisen concerning the representation of employees of Wachnsett and
Leominster Gas Company, Leominster, Massachusetts, herein called
Leominster, both employers collectively referred to herein as the Com-
panies, the National Labor Relations Board consolidated the cases by
an order dated September 14, 1945, and provided for an appropriate
hearing upon due notice before Robert E. Greene, Trial Examiner.
The hearing was held at Boston, Massachusetts, on October 8, 1945.
The Companies, the Electrical Workers, and the Utility Workers ap-
peared and participated. All parties were afforded full opportunity to
be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. The Trial Examiner's rulings 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.
65 N. L . R. B., No. 206. 1207
1 208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, the Board makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANIES
Wachusett Electric Company, a public utility corporation organized
under the laws of the Commonwealth of Massachusetts, is engaged in
the sale of electric power within the Commonwealth. As presently
constituted, Wachusett is the result of a merger, effective as of June 30,
1945, of Middlesex County Electric Company and Leominster Electric
Light and Power Company, both public utility corporations organized
under the laws of the Commonwealth, with Wachusett Electric Com-
pany. During the year 1944, Wachusett purchased 55,000,000 kilowatt
hours of electric power for resale, most of which was obtained from
plants of New England Power Company, located on the Deerfield
and Connecticut Rivers, and the remainder from other electric com-
panies, some of which are located outside the Commonwealth. During
the same period, Wachusett's sales of electric power were valued at
approximately $1,473,000, some of which were made to customers en-
gaged in producing goods or services which enter interstate commerce.
Leominster Gas Light Company, a public utility corporation organ-
ized under the laws of the Commonwealth of Massachusetts, is en-
gaged in the production and distribution of gas and carbonated water
gas. During the calendar year 1944, Leominster purchased fuel oil
valued- at approximately $250,000, all of which was obtained from
points outside the Commonwealth. Leominster makes sales of its
products to customers engaged in producing goods or services which
enter interstate commerce.
Wachusett and Leominster are wholly owned subsidiaries of Wa-
chusett Utility Association, which in turn is a subsidiary of New
England Power Association.
The Companies admit, and we find, that they are engaged in com-
merce within the meaning of the National Labor Relations Act.
II. THE ORGANIZATIONS INVOLVED
International Brotherhood of Electrical Workers, affiliated with the
American Federation of Labor; and Brotherhood of Utility Workers
of New England, Inc., unaffiliated, are labor organizations admitting
to membership employees of one or both of the Companies.
III. THE QUESTIONS CONCERNING REPRESENTATION
The Companies refuse to recognize either of the labor organizations
herein as the representative of certain of their employees in the absence
of certification by the Board.
WACHUSETT ELECTRIC COMPANY 1209
The Electrical Workers asserts that a contract between Leominster
and the Utility Workers, dated July 26, 1945, is at present in full force
and effect and, consequently, no question concerning the representation
of employees of Leominster exists. However, at the hearing, in re-
sponse to direct questioning, both parties to this contract refused to
raise it as a bar to a current determination of representatives of the
employees embraced within its scope. Accordingly, inasmuch as the
Electrical Workers is a stranger to the contract, we find no merit to
its contention.'
Statements of a Field Examiner for the Board, introduced into
evidence in the hearing, indicate that the Electrical Workers and the
Utility Workers represent a substantial number of employees in the
units asserted by each as appropriate.2
We find that questions affecting commerce have arisen concerning
the representation of employees of the Companies within the meaning
of Section 9 (c) and Section 2 (6) and (7) of the Act.
Iv. TIIE APPROPRIATE UNITS ; THE DETERMINATION OF REPRESENTATIVES
A. The contentions of the parties
The Utility Workers seeks a unit comprised of all employees of the
Companies, including meter readers, and office and clerical employees,
but excluding sales people, executive secretaries, executives, foremen
and all other supervisory employees. The Companies agree with
respect to the scope of the unit proposed by the Utility Workers, but
take no position as to the inclusion of office and clerical employees.
The Electrical Workers seeks a unit limited to all production and
maintenance employees of Wachusett, including meter readers, but
excluding office and clerical employees, sales people, executive secre-
taries, executives, foremen, and all other supervisory employees.
Disagreement exists between the Companies and the Utility Workers
with respect to the chief accountant, the bookkeeper, and the pay-roll
clerks,3 whom the Company would exclude as confidential employees.
Further disagreement exists with respect to truck foremen, and to the
meter foreman,4 whom the Company would exclude as supervisory
employees; the Utility Workers would include both classifications of
' See Matter of Charles W. Bauermeister Co Inc, 59 N L. R B. 1127.
x The Field Examiner reported that the Electrical Workers submitted 18 designations
which "checked on" Wachusett's pay roll for the period ending August 13, 1945, and that
there were 37 employees in the unit asserted by this labor organization as appropriate.
He further reported that the Utility Workers relies for the establishment of its interest in
this proceeding upon its current contract with Leominster , dated June 26, 1945, and its
recenttly expired contract with Leominster Electric Light and Power Company , one of the
corporations involved in the merger of June 30, 1945.
8 Although these employees are used in common by the Companies , they are listed on the
pay roll of Wachusett.
4 This employee is also used in common by the Companies.
1210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees, while the Electrical Workers seeks the inclusion of truck
foremen, but takes no position with respect to the inclusion of the
meter foreman.
B. The relationship between the Companies
As noted above, Wachusett and Leominster are wholly owned sub-
sidiaries of the same parent corporation. The Companies utilize the
same headquarters, located in an office building in Leominster, Massa-
chusetts, and the services of the saute office employees. Each of the
Companies has a distribution, meter and service,'and treasury depart-
ment. In addition, Leominster maintains a production department.
The production and maintenance employees of each of the Companies
perform services for the other, work under identical conditions of
employment, and receive the same benefits. Moreover, their personnel
records are maintained in the same office under the same supervision
cf a personnel officer common to both Companies. With the exception
of an additional executive at Wachusett, the Companies have common
officers. In addition, the physical facilities of both Companies are
used jointly and purchases of the Companies emanate from the salve
purchasing office. On the other hand, the employees of each Com-
pany are listed on separate pay rolls, and are thus identifiable.
Furthermore, each Company is a separate legal entity. It is also
noteworthy that, prior to the merger of June 30, 1945, the three em-
ployers which now constitute Wachusett and Leominster, similarly
conducted their operations.
C. Past bargaining history of the Companies
Before the merger of the three electrical companies now comprising
Wachusett,' the Electrical Workers had been recognized for a period
of approximately 7 years as the representative of the production and
maintenance employees of Middlesex County Electrical Company,
and Wachusett Electric Company. The most recent contracts be-
tween the Electrical Workers and Middlesex County Electric Com-
pany and Wachusett Electric Company, dated March 5 and 6, 1945,
respectively, were terminated in accordance with their terms, by the
merger of June 30, 1945. Leominster and Leominster Electric Light
and Power Company executed contracts with the Utility Workers for
the first time on July 26, 1945, in which that labor organization was
recognized as the collective bargaining representative of the produc-
tion and maintenance workers and the office and clerical employees
of each of these employers. However, as in the case of the contracts
of the Electrical Workers previously reftrred to, the contract between
8 All office and clerical employees of the Companies are part of the treasury departments
WACHUSETT ELECTRIC COMPANY 1211
the Utility Workers and Leominsler Electric Light and Power Com-
pany was also terminated in accordance with its provisions by the
merger.
D. The unit of the Companies' office and clerical employees; the voting
group of Wachusett's production and maintenance employees; the
voting group of Leominster's production and maintenance em-
ployees; and the determination of representatives
Considering the past and present operations of the Companies and
the bargaining history, we are persuaded that units encompassing
employees of both Companies or limited in scope to the workers of
either ale equally feasible for collective bargaining purposes. And
we are also convinced that office and clerical employees should be
represented separately from production and maintenance workers.6
As previously indicated, the Utility Workers is the only labor
organization interested in representing office and clerical employees,
and it is desirous of establishing a unit of the broadest possible scope.
We find, consequently, that a unit of the office and clerical employees
of both Companies is appropriate.
The Electrical Workers, however, is interested in representing only
the production and maintenance workers of Wachusett, as contrasted
with the Utility Workers' desire to represent the production and
maintenance employees of both Companies. Therefore, we shall not
at this time make any determination of the appropriate unit or units
of production and maintenance employees. Our finding in this respect
shall rest, in part, upon the results of separate elections we shall here-
inafter direct among the production and maintenance employees of
Wachusett and Leominster, respectively.
There remains for consideration the specific composition of the
appropriate unit of office and clerical employees of both Companies,
and the voting groups of production and maintenance workers of each
Company.
There is a dispute with respect to the inclusion of the chief account-
ant, the bookkeeper, and the pay-roll clerks. The record indicates that
these employees have never been among the clerical workers bargained
for collectively by the Utility Workers, and that their duties require
that they have access to confidential information pertaining to future
operations of the Companies which bear directly upon the Companies'
personnel policies. Under these circumstances we shall exclude these
employees.
See Matter of Boston Edison Company. 51 N. L. R. B. 118; ef. Matter of Pennsylvania
Light & Power Company, 64 N L. It. B 874, where a combination of circumstances, Includ-
ing a compelling bargaining history based exclusively upon a single unit of physical and
clerical workers, indicated a departure from our customary practice of separating of8ee
and clerical workers from production and maintenance employees
1212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Although both labor organizations assert that meter readers are
production and maintenance workers alid should be included within
the same bargaining unit as other production and maintenance em-
ployees, the record indicates that the duties of these employees are
primarily clerical in nature and that the Companies consider them
as clerical workers. We shall include all meter readers of the Com-
panies within the office and clerical unit.7
We find that all office and clerical employees of Wachusett and
Leominster, including meter readers, but excluding sales people, ex-
ecutive secretaries, the bookkeeper, the chief accountant, pay-roll
clerks, executives, all other supervisory employees with authority to
hire, promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, and all
other employees, constitute a unit appropriate for the purposes of
collective bargaining within the meaning of Section 9 (b) of the Act.
We have previously indicated that a controversy exists with respect
to the supervisory status of truck foremen and the meter foreman, all
of whom are production and maintenance workers. The record dis-
closes that the employees in each of these categories have authority
to make effective recommendations with respect to the status of their
subordinates. Under these circumstances, we find that they are super-
visory employees within the meaning of our customary definition, and
we shall exclude them .8
We shall direct that the question concerning representation of the -
production and maintenance employees of the Companies be resolved
by separate elections by secret ballot to be held among employees in
each of the following voting groups who are employed during the
pay-roll period immediately preceding the date of the Direction of
Elections herein, subject to the limitations and additions set forth in
the Direction :
a. All production and maintenance employees of Wachusett,
excluding office and clerical employees (including meter readers),
sales people, executives, foremen (including truck and meter
foremen), all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, and
all other employees of Whchusett, to determine whether they
desire to be represented by the Utility Workers, by the Electrical
Workers, or by neither ; and
7 See Matter of Boston Edison Company, supra.
8 The Electrical workers asserts that truck foremen have been part of the units of
employees which it had previously represented. This is disputed. In any event, whether
or not the Electrical workers had , in fact, represented these employees as part of its
collective bargaining units is immaterial in view of our finding that they are supervisory
employees . See Matter of Lrobbey-Owens-Ford G lass Company , 65 N. L. R B. 434.
WACHUSETT ELECTRIC COMPANY 1213
b. All production and maintenance employees of Leominster,
excluding office and clerical employees (including meter readers),
sales people, executives, foremen (including truck and meter
foremen), all other supervisory employees with authority to hire,
promote, discharge, discipline, or otherwise effect changes in the
status of employees, or effectively recommend such action, and all
other employees of Leominster, to determine whether or not
they desire to be represented by the Utility Workers.
In addition, we shall direct that the question concerning the rep-
resentation of the Companies' employees in the office and clerical unit
be resolved by an election by secret ballot among the employees in this
unit who were employed during the pay-roll period immediately
preceding the date of the Direction of Elections herein, subject to the
limitations and additions set forth in the Direction.
DIRECTION OF ELECTIONS
By virtue of and pursuant to the power vested in the National Labor
Relations Board by Section 9 (c) of the National Labor Relations
Act, and pursuant to Article III, Section 9, of National Labor Re-
lations Board Rules and Regulations-Series 3, as amended, it is
hereby
DIRECTED that, as part of the investigation to ascertain repre-
sentatives for the purposes of collective bargaining with Wachusett
Electric Company and Leominster Gas Company, both of Leominster,
Massachusetts, separate elections 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 First 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 following
groups of employees of the Companies, and also among the employees
in the office and clerical unit found appropriate in Section IV, above,
who were employed during the pay-roll period immediately preceding
the date of the Direction, including employees who did not work dur-
ing said pay-roll period because they were ill or on vacation or tempo-
rarily laid off, and including employees in the armed forces of the
United States who present themselves in person at the polls, but
excluding any who have since quit or been discharged for cause and
have not been rehired or reinstated prior to the date of elections, and
excluding further, as well as those specifically mentioned, all super-
visory employees with authority to hire, promote, discharge, dis-
cipline, or otherwise effect changes in the status of employees, or
effectively recommend such action;
e
1214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. All production and maintenance employees of Wachusett, ex-
cluding office and clerical employees ( including meter readers ), sales
people, executives , foremen ( including truck and meter foremen),
and all other employees of Wachusett , to determine whether they
desire to be represented by International Brotherhood of Electrical
Workers, A. F. of L., or by Brotherhood of Utility Workers of New
England, Inc., for the purposes of collective bargaining or by neither;
2. All production and maintenance employees of Leominster, ex-
cluding office and clerical employees ( including meter readers ), sales
people, executives , foremen ( including truck and meter foremen),
and all other employees of Leominster , to determine whether or not
they desire to be represented by Brotherhood of Utility Workers of
New England , Inc., for the purposes of collective bargaining; and
3. All office and clerical employees of the Companies , including
meter readers ,, but excluding sales people , executive secretaries, the
bookkeeper , the chief accountant, pay-roll clerks, executives , and all
other employees , to determine whether or not they desire to be repre-
sented by Brotherhood of Utility Workers of New England, Inc.,
for the purposes of collective bargaining.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Direction of Elections.