Ohio Power Co. v. NLRB

• Decision Date: 25 July 1949
• Docket Number: No. 10779.,10779.
• Citation: 176 F.2d 385
• Parties: OHIO POWER CO. v. N.L.R.B.
• Court: U.S. Court of Appeals — Sixth Circuit

176 F.2d 385 (1949)

OHIO POWER CO. v. N.L.R.B.

No. 10779.

United States Court of Appeals Sixth Circuit.

July 25, 1949.

John G. Ketterer, Canton, Ohio, Day, Cope, Ketterer, Raley & Wright, John G. Ketterer, R. M. Rybolt, Canton, Ohio, on the brief, for petitioner.

Mozart G. Ratner, Washington, D. C., David P. Findling, A. Norman Somers, Mozart G. Ratner, Melvin Pollack, Washington, D. C., on the brief, for respondent.

Before ALLEN, McALLISTER and MILLER, Circuit Judges.

ALLEN, Circuit Judge.

This case arises out of a petition to review an order of the National Labor Relations Board finding that petitioner had violated § 8(1) and § 8(5) of the National Labor Relations Act, and § 8(a) (1) and § 8(a) (5) of the Act as amended, 29 U.S. C.A. § 158(a) (1, 5), by refusing to bargain with a collective bargaining agent theretofore designated by the Board in a representation proceeding. The Board in its answer prayed for enforcement of the order.

The principal defense of the petitioner to the charges was that the bargaining unit was not appropriate in that it included the control operators, who, petitioner contends, are supervisors within the meaning of § 2(11) of the Act as amended, 29 U.S.C.A. § 152(11). Petitioner offered to bargain if its control operators should be excluded from the bargaining unit, but this offer was rejected by the union.

The controversy arises over proceedings with reference to the petitioner's Tidd Plant, situated on the Ohio River at Brilliant, Ohio. The Tidd Plant is a steam electric generating plant which generates electricity by the use of coal burned under boilers to produce steam, which is used to turn the horizontal turbine, which in turn is a driving force for the generators which produce the electric energy. At the time of hearing the plant had one unit of 100,000 kilowatts per hour. The Tidd Plant is probably the most highly automatized electric generating plant in the industry. In plants of older design there are in general boiler rooms, turbine rooms, and pump rooms, with boiler operators, pump operators and turbine operators stationed near their respective equipment. At the Tidd Plant the controls for the boilers, turbines, pumps and other equipment are concentrated in one room, and the control operator handles the entire operation of the plant from this room where he spends 95% of his time. There are four control operators who relieve each other at this plant, one being on duty at every moment of the day.

The control operator is assisted by the assistant control operator and the auxiliary equipment operator. Fifty per cent of the time of the assistant control operator is spent in the control room assisting the control operator and receiving instructions in the control of the unit; and the other 50% of his time is spent in making trips to the pumps, turbines, or other locations in the plant, as directed by the control operator, or under established routine. The auxiliary equipment operator performs work formerly covered by several job classifications, such as part of the duties of the pump operator, of the condenser operator, of the ash man, of the soot blower, and of other employees. He operates the revolving screens, cares for the ashes, inspects fans on the tops of the boilers, and visits various parts of the plant periodically to look at the equipment, or at the direction of the control operator to inspect some specific thing in which the control operator may suspect that there is trouble. The control operator directs the activities of both the assistant control operator and the auxiliary equipment operator. As a usual thing he has nothing to do with the recommending of employment or discharge or discipline of the employees; but petitioner's superintendent stated that recommendations made by the control operator "would be given a great deal of weight." The only testimony concerning the nature of the work of the control operator was given by petitioner's superintendent, who was called as a witness on behalf of the Board. The superintendent answered questions on these matters as follows:

"Q. And it is necessary for him to make decisions on the spot? A. Particularly when there are emergencies, but in a routine way as to various adjustments.

"Q. But he has to do those things on his own initiative? A. He makes those decisions on his own initiative.

"Q. And the decisions which he makes are such as to control the operation of the entire unit? A. That is correct.

"Q. And thereby they control the entire output of the plant as it is now constituted? A. That is correct."

Petitioner contends in brief that under the uncontradicted testimony the control operators at the Tidd Plant are supervisory employees within the definition of § 2(11) of the National Labor Relations Act as amended by the Labor Management Relations Act of 1947, which reads as follows:

"The term `supervisor' means 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 responsibly 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 a merely routine or clerical nature, but requires the use of independent judgment."

This section is to be interpreted in the disjunctive, National Labor Relations Board v. Edward G. Budd, Mfg. Co., 6 Cir., 169 F.2d 571, cert. denied 335 U.S. 908, 69 S.Ct. 411, and the possession of any one of the authorities listed in § 2(11) places the employee invested with this authority in the supervisory class.

It is not contended that the control operators have authority to hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or discipline other employees or to adjust their grievances or effectively to recommend such action. The narrow question presented is whether under this record the control operators responsibly direct other employees, the exercise of their authority being not of a merely routine or clerical nature, but requiring the use of independent judgment.

The Board held that within the Act's definition the power responsibly to direct is sufficient to render an individual a supervisor, assumed that the control operator performs such duties and acknowledged that the literal construction of the statute made the activities in question supervisory. However, it concluded that the control operators do not perform supervisory functions within the Board's construction of the statute. The Board said that the legislative history indicates that the broad scope implied in a literal construction of the authority "responsibly to direct" was not intended by Congress, but...