| INTERNATIONAL BROTHERHOOD OF | | | CASE NO. 458 |
| ELECTRICAL WORKERS, Local Union | | | |
| 1536, AFL-CIO, | | | |
| | | ||
| Petitioner, | | | |
| | | ||
| v. | | | OPINION AND ORDER |
| | | ||
| LINCOLN ELECTRIC SYSTEM, | | | |
| | | ||
| Respondent. | | |
Appearances:
For the Petitioner: Brian L. Campbell
Bauer, Galter & Geier
811 South 13th Street
Lincoln, Nebraska
For the Respondent: Douglas L. Curry
Ginsburg, Rosenberg,
Ginsburg, Cathcart,
Curry & Gordon
820 Stuart Building
Lincoln, Nebraska
Before: Judges Orr, Kratz, and Gradwohl.
ORR, J:
This matter came on for hearing on the issue of including certain generation and distribution employees and supervisory employees within the bargaining unit represented by Petitioner IBEW as raised by the Respondent LES in its responsive pleading to the petition herein. The parties agreed that said issues relating to the formation of the bargaining unit may be tried prior to a final wage determination. Since the hearing on this issue, the parties have jointly dismissed all other issues, except those issues relating to the bargaining unit definition.
For purposes of the "appropriate bargaining unit" issue, the parties agreed that the classifications disputed between them are the following:
(a) Alleged Supervisory Classifications
1. Line Clearance Crew Foreman
2. Substation Construction Foreman
3. Equipment Mechanic Crew Foreman
4. Meter Department Crew Foreman
5. Communication and test Technician Crew Foreman
6. Line Construction and Maintenance Foreman
(b) Generation Classifications
1. Operator I
2. Operator II
3. Welder Mechanic
4. Boiler Operator
The Respondent's counter claim raises two issues:
1.Whether the alleged supervisory classifications exercise sufficient supervisory authority to be deemed supervisors and thereby excluded from the bargaining unit.
2.Whether the generation classifications have a sufficient community of interest with other classifications within the bargaining unit so as to be included within the bargaining unit.
Supervisory Issue
The controlling principles relating to supervisors in bargaining units were first stated by the Nebraska Supreme Court in City of Grand Island v. American Federation of State, County, and Municipal Employees , 186 Neb. 711, 715-16, 185 N.W. 2d 860, 863-64 (1971), as follows:
The federal law excludes supervisors from employee units, and it is generally held that supervisors should not be included in a collective bargaining unit. See 48 Am. Jur. 2d, Labor and Labor Relations , §154, p. 331. Supervisors are defined in the federal laws as any individual having authority, in the interest of the employer, to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibility 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 independent judgement. Title 29 U.S.C.A. §152 (11), p. 233; 48 Am. Jur. 2d Labor and Labor Relations , §122, p. 306.
In a 1975 CIR case, Communication Workers of America v. City of Hastings , 3 CIR 1 (1975), the Commission elaborated on these principles and concluded that supervisory status under Nebraska law is determined by the definition of supervisor in the National Labor Relations Act, and the employee need have only one or more of the types of authority specified in this definition in order to be classed as a supervisor. Furthermore, the Commission concluded that an employee's supervisory status is determined by his duties and not by his job title.
A relatively recent CIR case, IBEW, Local 1250 v. Northwest Rural Public Power District , 5 CIR 74 (1980), addressed the working foreman issue. In this case, the bargaining unit issue presented to the Commission was whether or not the service crew foreman, the line crew foreman and the substation foreman should be excluded from the bargaining unit because of their alleged supervisory functions. The evidence demonstrated that in the actual performance of the work, the foremen's duties differed little from those of the other crew members. By virtue of this fact and the Commission's conclusion that the foremen's supervisory activities were essentially routine the Commission held that where the exercise of supervisory authority by an employee is of a routine nature, then such employee should not be excluded as a supervisor in determining an appropriate bargaining unit.
In reaching this holding in the I.B.E.W., Local 1250 case, the Commission made reference to a NLRB case that had also addressed a working foreman issue. In Monongahela Power Company , 176 NLRB, No. 123, (1969), lead linemen, lead electricians and crew leaders, all of whom were in charge of employee crews of varying size were found not to be supervisors. The Board found that these persons do not possess or exercise supervisory authority, but are merely highly skilled employees whose status as leadmen results from superior abilities and length of service.
The Respondent contends that the positions classified as Line Clearance Crew Foreman, Substation Crew Foreman, Equipment Mechanic Crew Foreman, Meter Department Crew Foreman, Communication and Test Technician Crew Foreman, and Line Construction and Maintenance Foreman are supervisors and should be excluded from the bargaining unit.
1. Line Clearance Crew Foreman
There are four Line Clearance Crew Foreman (Exhibit No. 4), each of whom is in charge of a crew of two or three employees. These crew foreman spend approximately 95 per cent of their time performing manual labor with the other members of their crews. The four crew foreman receive their daily job assignments from their general foreman. The general foreman will visit a job site approximately twice a day and is capable of being in radio contact with the crew foreman. These crew foreman do not have the authority to hire, transfer, suspend, layoff, recall, promote, reward, discipline, grant overtime, adjust the grievances of employees, nor to effectively recommend any of these functions. Line Clearance Crew Foreman do have the responsibility of training apprentices and filling out performance appraisals, however we find that this responsibility is nothing more than routine in nature. Where the exercise of supervisory authority by an employee is of a routine nature, such employee should not be excluded as a supervisor in determining an appropriate bargaining unit. IBEW, Local 1250 v. Northwest Rural Public Power District , 5 CIR 74 (1980).
The Commission finds that the job classification of Line Clearance Crew Foreman should be included in the bargaining unit because any supervisory authority exercised is only of a routine nature.
2. Substation Construction Foreman
One Substation Construction Foreman (Exhibit No. 4) is responsible for directing the activities of a crew of three employees who are engaged in the construction of substations. He spends approximately 60 percent of his time doing construction work and the rest of his time observing the work and completing performance appraisals, daily time sheets, daily work progress sheets and work tickets. He does not have the authority to suspend, layoff nor terminate his crew members although the evidence shows that he can effectively recommend the same to his general foreman who passes the recommendation on to his supervisor. The substation foreman does have the authority to give job assignments to the members of his crew and the authority to discipline and reprimand his crew members.
The Commission finds that the job classification of Substation Construction Foreman should be excluded from the bargaining unit because of the degree of independent judgment exercised in supervising a crew.
3. Equipment Mechanic Crew Foreman
There are two Equipment Mechanic Crew Foremen (Exhibit No. 4) each of whom is in charge of a crew varying in size from four to seven employees. The work consists of performing preventive maintenance and corrective procedures on all Lincoln Electric System vehicles and heavy equipment. These crew foremen obtain daily job assignments from their general foreman and then they distribute the assignments to their crew members. They do not have the authority to hire or fire employees. On one occasion a crew foreman did recommend discharge of an employee, but the recommendation was not followed. Although the crew foremen have the responsibility of doing six month merit review evaluations on their employees and periodic employee performance appraisals, this responsibility is routine in nature.
The Commission finds that the job classification of Equipment Mechanic Crew Foreman should be included in the bargaining unit because any supervisory authority exercised is only of a routine nature.
4. Meter Department Crew Foreman:
The Meter Department Crew Foreman (Exhibit No. 4) is responsible for the activities of a crew consisting of six employees. He has no general foreman to report to and he determines job assignments in the meter department. He does have the authority to discipline the employees in his crew. The testimony shows that the Meter Department Crew Foreman serves the same capacity as that of a general foreman. By his own testimony he considered himself to be a supervisor and that he has additional responsibilities that the crew foremen in other departments do not have.
The Commission finds that job classification of Meter Department Crew Foreman should be excluded from the bargaining unit because of the degree of independent judgment exercised in supervising the Meter Department.
5. Communication and Test Technician Crew Foreman .
Exhibit No. 4 shows that there is one Communication and Test Technician Crew Foreman with a crew of three employees. The job description for this job classification (Exhibit No. 5A) states that the Communication and Test Technician Crew Foreman has "authority over and accountability for technicians of lesser grades." This crew foreman does not report to a general foreman, but instead reports to the same Supervisor as the Meter Department Crew Foreman.
The Commission finds that the job classification of Communication and Test Technician Crew Foreman should be excluded from the bargaining unit because of the degree of independent judgment exercised in supervising a crew.
6. Line Construction and maintenance Foreman:
There are fourteen Line Construction and Maintenance Foremen (Exhibit No. 4) who are in charge of crews varying in size from two to four employees. These line construction foremen receive their daily job assignments from the general foreman and do not have the authority to change the assignments. Their general foreman visits the job sites once or twice a day and they are capable of being in constant radio contact with the general foreman. They spend approximately 95 percent of their time performing manual labor with their crew members. Their other time is spent filling out daily time sheets, pole sets, transformer slips, work orders and performance appraisals. Line construction foremen do not have the authority to hire, transfer, suspend, layoff, recall, promote, discharge, reward, discipline, grant over time, adjust the grievances of employees, nor to effectively recommend the same. Although they do fill our performance appraisals and do other limited paper work, these functions are routine in nature.
The Commission finds that the job classification of Line Construction and Maintenance Foreman should be included in the bargaining unit because any supervisory authority exercised is only of a routine nature.
Community of Interest Issue
The Respondent asserted that the positions of Operator I,Operator II, Welder Mechanic and Boiler Operator do not have a sufficient community of interest to justify their inclusion in the collective bargaining unit. These positions are considered generation employees and are in the Power and Supply Department.
In Sheldon Station Employees Association v. Nebraska Public Power District , 202 Neb. 394, 395-396 (1979), the Nebraska Supreme Court said:
[I]t is settled law that in tailoring the appropriate unit, we consider the mutuality of interest in wages, hours and working conditions (community of interest), duties and skills of employees, extent of union organization among employees, desires of the employees, a policy against fragmentation of units, the established policies of the employer, and the statutory mandate to assure proper functioning and operation of governmental service.
While it is true these factors are to be considered, it is likewise true that they are not the only factors to be considered, nor must each such factor be given equal weight. The factors appropriate to a bargaining unit consideration and the weight to be given each such factor must vary from case to case depending upon its particular applicability in each case. City of Grand Island v. American Federation of S.C. & M. Employees , 186 Neb. 711, 185 N.W.2d 860; American Assn. of University Professors v. Board of Regents , 198 Neb. 243, N.W.2d 1.
Likewise, in reviewing factors such as "established policies of the employer," "fragmentation," and "degree of unionization desires of employees," we must keep in mind the clear dictates of the statutes. These factors must be examined in light of the statutory presumption contained in section 48-838 (2), R.S. Supp., 1976, which provides as follows: "***It shall be presumed, in case of governmental subdivisions such as municipalities, counties, power districts, or utilities districts with no previous history of collective bargaining, that units of employees of less than departmental size shall not be appropriate."
In interpreting that section, we have previously said: "'It is clear that in enacting subsection (2) of section 48-838, the Legislature properly sought to avoid undue fragmentation of the bargaining units.*** It (undue fragmentation) fosters proliferation of personnel necessary to bargain and administer contracts on both sides of the bargaining table. It destroys the ability of public institutions * * * to develop, administer, and maintain any semblance of uniformity or coordination in their employment policies and practices.'" House Officers Assn. v. University of Nebraska Medical Center, 198 Neb. 697, 255 N.W.2d 258. Clearly, it is the intent of the Legislature that fragmentation of bargaining units within the public sector is to be avoided.
Applying the above criteria to the facts presented, the Commission finds that the job classifications of Operator I,Operator II, Welder Mechanic, and Boiler Mechanic should be included in the bargaining unit. These disputed job classifications have been a part of the bargaining unit for two years. These generation employees have the same overtime policy, health care benefits, dental benefits, retirement benefits and grievance procedure as the distribution employees. The generation employees do not require significantly greater amount of education or training than distribution workers. There has been no showing that prior negotiations between the parties involving the unit with these generation employees has hindered the proper functioning and operation of services of the Lincoln Electric System.
In light of the Legislative mandate to avoid the undue fragmentation of bargaining units, taken together with the above mentioned factors of previous bargaining history and similar working conditions the Commission finds that the generation classifications of Operator I, Operator II, Welder Mechanic, and Boiler Mechanic should be included in the bargaining unit.
IT IS THEREFORE ORDERED:
1. That the job classifications of Line Clearance Crew Foreman, Equipment Mechanic Crew Foreman, Line Construction and Maintenance Foreman, Operator I, Operator II, Welder Mechanic and Boiler Operator should be included in the bargaining unit.
2. That the job classifications of Substation Construction Foreman, Meter Department Crew Foreman, Communication and Test Technician Crew Foreman should not be included in the bargaining unit.
All Judges assigned to the panel in this case join in the entry of this Opinion and Order.
Filed August 26, 1982
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