West Penn Power Company v. NLRB, 14555.

• Decision Date: 03 November 1964
• Docket Number: No. 14555.,14555.
• Citation: 337 F.2d 993
• Parties: WEST PENN POWER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.
• Court: U.S. Court of Appeals — Third Circuit

337 F.2d 993 (1964)

WEST PENN POWER COMPANY, Petitioner, v. NATIONAL LABOR RELATIONS BOARD.

No. 14555.

United States Court of Appeals Third Circuit.

Argued February 3, 1964.

Decided November 3, 1964.

Donald B. Heard, Reed, Smith, Shaw & McClay, Pittsburgh, Pa. (Nicholas Unkovic, James Q. Harty, Pittsburgh, Pa., Charles L. McCormick, Greensburg, Pa., on the brief), for petitioner.

Allen M. Hutter, N. L. R. B., Washington, D. C. (Arnold Ordman, General Counsel, Dominick L. Manoli, Associate General Counsel, Marcel Mallet-Prevost, Asst. General Counsel, Lee M. Modjeska, Attorney, N. L. R. B., on the brief), for respondent.

Before McLAUGHLIN, GANEY and SMITH, Circuit Judges.

GANEY, Circuit Judge.

This is a petition for review and setting aside of two orders issued by the National Labor Relations Board. The order, dated August 12, 1963, in Case No. 6-CA-2644, directed the West Penn Power Company to cease and desist from refusing to bargain with the Utility Workers Union of America, System Local No. 102, AFL-CIO, concerning wages, hours and working conditions of the Company's employees classified as Transmission and Distribution Supervisors.

The above order was based upon a determination by the Board on November 7, 1962, in Case No. 6-RC-846, as the result of a motion for clarification and/or amendment of the certification filed by the Company on February 6, 1962, wherein the Board held that the Transmission and Distribution Supervisors were employees within the meaning of the definition of "employee", as set out in § 2(3) of the Labor Management Relations Act, 29 U.S.C.A. § 152 (3),¹ and were not supervisors within the meaning of § 2(11) of that Act, 29 U.S. C.A. § 152(11).²

The court has jurisdiction here since the alleged unfair labor practices occurred in Springdale and Charleroi, Pennsylvania, within this judicial circuit.

The West Penn Power Company will hereinafter be referred to as the "Company", the Utility Workers Union of America will be referred to as the "Union" and the Transmission and Distribution Supervisors will be referred to as the "T & D Supervisors."

The Company is a public utility distributing and selling electrical energy in 18 counties in western and north central Pennsylvania for residential, commercial and industrial purposes and is engaged in interstate commerce within the meaning of the Labor Management Relations Act, as amended. It serves approximately 390,000 customers and since 1930, the number of these has more than doubled and the number of employees has steadily increased. There are presently five steam generating plants and one hydro station operated by the Company.

In 1944, the Board, after hearing, certified the Union as the bargaining representative "of all load dispatchers of West Penn Power Company, in the Springdale Power Station, and the Charleroi Substation, Pittsburgh, Pennsylvania, excluding all supervisory employees * * *, as their representative for the purposes of collective bargaining, * *."

In 1946, the Dispatchers as a group withdrew from the Union, but in 1951, as the result of a consent election, the Company again recognized the Union as the collective bargaining representative of "all load dispatchers of the West Penn Power Company who are located in the Springdale, Pennsylvania Power Station and Charleroi, Pennsylvania Dispatching Center: EXCLUDING ALL other employees and guards, professional employees and supervisors, as defined in the National Labor Relations Act, as amended."

The labor agreement entered into and between the Company and the Union included all "Load Dispatchers" among the groups for recognition. These included the first and second load dispatchers in Charleroi and the load dispatchers in Springdale, before September 1, 1960. The load dispatchers at Springdale and the second load dispatchers at Charleroi were responsible for transmission and distribution of power from the generating stations to the substations. The substations broke down the power to lower voltages for distribution to the Company's customers. On September 1, 1960, a program of decentralization was entered into by the Company and three new operating centers were opened at Arnold and Connellsville, Pennsylvania, and the previous job classification of operating instructors, who were not included in the collective bargaining unit, the Charleroi second load dispatchers, and Springdale load dispatchers, were eliminated. Earlier, in a management bulletin issued on March 31, 1960, telling of the coming change on September 1, 1960, it stated that because of the dispatchers' knowledge of operating practices, it was expected that with training in management functions and supervisory skills, most of the present load dispatchers would qualify for the new positions of Transmission and Distribution Supervisors. The Charleroi first load dispatchers were to be re-classified as power dispatchers, but with little change in their duties and responsibilities.

Under the provisions of the above mentioned agreement, entered into between the Company and the Union for the years 1956-1961, the Union filed a grievance petition, dated September 15, 1960, wherein they protested the Company's refusal to bargain on behalf of the T & D Supervisors, as the Company held that the positions of the T & D Supervisors, newly created, placed them in the supervisory or management class and were not included in the collective bargaining unit. On November 17, 1960, the Union filed unfair labor practices against the Company for refusal to bargain with it on behalf of the T & D Supervisors, but the Acting Regional Director refused to issue a complaint, which action was sustained by the General Counsel of the National Labor Relations Board.

The Union continued to insist that it should be the collective bargaining agent for the T & D Supervisors and, as a result, the Company, on February 6, 1962, filed the motion for clarification and/or amendment of the certification of the Board on June 20, 1951, as heretofore adverted to.

Once again, the Union filed unfair labor practice charges against West Penn Power Company on December 10, 1962, because the Company refused to bargain with it on behalf of the T & D Supervisors. After a hearing was held on these charges, the Board, in its decision and order, adopted, with a modification, the Trial Examiner's report that the Company had refused to bargain with the Union on December 5, 1962, regarding the new unit designated. The modification was that the unit was to include those T & D Supervisors at the two additional dispatching centers established in 1960, to wit, Connellsville & Arnold. From this order of the Board, the Company has filed this petition for review.

It is requisite that in order to resolve the issue here posed, the Congressional intent as to the meaning of the terms "employee" and "supervisor" is to be analyzed and the courts' interpretation thereof carefully scrutinized since the factual data in each decided case before the Board and the appellate courts will be different and, of necessity, the meaning of the terms "employee" and "supervisor" has been subject to a great deal of litigation.

However, it is unnecessary here to definitively circumscribe the orbit of the terms "employee" or "supervisors" as it is apparent Congress fully appreciated that such relationships could not be placed in separate categories or that technical concepts of the terms should be controlling, but that there should be taken into consideration the broad intendment of the Act. As its first section sets out, it is designed to eliminate "substantial obstructions to the free flow of commerce" resulting from "strikes and other forms of industrial strife or unrest."

It is in this context that we proceed to determine whether, under the factual situation here presented, the rule in Universal Camera Corp. v. N. L. R. B., 340 U.S. 474, 71 S.Ct. 456, 95 L.Ed. 456, has been complied with and whether, on the record as a whole, there is substantial evidence to support the Board's findings. Accordingly, examining the record as a whole, the conclusion is reached that this court "cannot conscientiously find that the evidence supporting that decision is substantial, when viewed in the light that the record in its entirety furnishes, including the body of evidence opposed to the Board's view." Universal Camera Corp. v. N. L. R. B., supra, at 488, 71 S.Ct. at 465.

It has been settled by many court decisions, an employee must be defined as a supervisor if he exercises any one of the powers set forth in § 2(11) of the Act. Servette, Inc., v. N. L. R. B., 9 Cir., 310 F.2d 659, 664. This section does not require the powers described be exercised during any definite part of the employee's time. It is the existence of the power which determines the classification of whether an individual is an employee or a supervisor. Ohio Power Co. v. N. L. R. B., 6 Cir., 176 F.2d 385, at 388, 11 A.L.R.2d 243; N. L. R. B. v. Fullerton Publishing Co., 9 Cir., 283 F. 2d 545, at 548; N. L. R. B. v. Whitin Machine Works, 1 Cir., 204 F.2d 883; N. L. R. B. v. Leland-Gifford Co., 1 Cir., 200 F.2d 620. It was said by this Court in N. L. R. B. v. Beaver Meadow Creamery, Inc., 3 Cir., 215 F.2d 247, though it affirmed the Board's action under the particular facts obtaining there that the individual was not a supervisor, that "We quite agree that Section 2(11) must be read disjunctively, that the possession of any one of the Section 2(11) powers will make one a supervisor, and that it is the fact of possession of the power regardless of its nonexercise that is determinative." (p. 251). While it is agreed that some cases point out that the mere responsibility of making work assignments in a routine fashion does not make an employee a supervisor, Precision Fabricators, Inc. v. N. L. R. B., 2 Cir., 204 F.2d 567, nor the mere fact that he spends a portion of his time instructing less experienced employees, N. L. R. B. v....