Massachusetts Electrtic Co.

MASSACHUSETTS ELECTRTIC COMPANY 155 Massachusetts Electric Company, Petitioner and In- ternational Brotherhood of Electrical Workers, Local 326, AFL-CIO and Local Union No. 446, Utility Workers Union of America, AFL-CIO and Local Union No. 317, Brotherhood of Util- ity Workers of New England, Inc. and Local Union No. 12007, United Steelworkers Union of America, AFL-CIO Cases -RM-1059, I-RM- 1060, and 1-UC-258 March 5, 1980 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN FANNING AND MEMBERS PENELLO AND TRUESDALE Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Gary S. Cooper of the National Labor Relations Board. Following the hearing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, by di- rection of the Regional Director for Region 1, this proceeding was transferred to the Board for Deci- sion. Thereafter, the Employer and the Unions in- volved herein filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby af- firmed. Upon the entire record in this proceeding, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The Unions herein are labor organizations within the meaning of the Act and claim to repre- sent certain employees of the Employer. 3. This proceeding results from the Massachu- setts Electric Company's consolidation of its exist- ing service and distribution facilities located in Maiden, Lynn, and Beverly, Massachusetts, into its existing service center in Malden, Massachusetts. Three petitions were filed on November 8, 1978, by the Employer with respect to the employees af- fected by the consolidation. The petition in Case 1- RM-1060 seeks a representation election in a unit of "physical" employees at Malden. The petition in Case 1-RM-1059 seeks an election in a unit of I This unit is limited to employees in the transmission and distribution department (T&D) and stores department. 248 NLRB No. 8 clerical employees at Malden. 2 The petition in Case 1-UC-258 seeks, as an alternative to the peti- tion filed in Case -RM-1060, to clarify the exist- ing unit of "physical" employees represented by the International Brotherhood of Electrical Work- ers, Local 326, AFL-CIO (hereinafter the IBEW), to accrete the "physical" employees transferred from Lynn. A hearing was held in this matter on December 27 and 28, 1978. As revealed at that hearing, the consolidation was scheduled to be completed by January 2, 1979. The record indicates that the Employer consoli- dated two district operations in Malden-the North Shore district and the Malden district. Four differ- ent unions represent the employees affected by the consolidation in four different bargaining units. The IBEW represents the Employer's transmission and distribution employees (T&D), stores department employees, and meter readers at the Malden Ser- vice Center. Local Union No. 12007, United Steel- workers Union of America, AFL-CIO (hereinafter the Steelworkers), represents the employees in the customer service department and a messenger in its offices services department at the Malden location. Local Union No. 446, Utility Workers Union of America, AFL-CIO (hereinafter the UWUA), rep- resents in an overall unit the meter readers, T&D, stores department, and customer service depart- ment employees at the Employer's two service cen- ters located on Exchange Street and on the Lynn- way in Lynn. Local Union No. 317, Brotherhood of Utility Workers of New England, Inc. (herein- after the BUW), represents the meter readers, T&D, stores department, and a few customer ser- vice employees at the Employer's facilities in Bev- erly, Salem, and Glouchester. These district operations were consolidated in Maiden, according to the Employer, for reasons of economy and efficiency. The merger resulted in the closing of the service centers in Lynn and the transfer of the 10 meter readers, 62 T&D, 4 stores department, and 37 customer service department employees represented by the UWUA to the Malden Service Center. The Employer also trans- ferred to Malden from its Beverly facility six em- ployees in the field engineering department and two clericals in the meter department represented by the BUW. These employees were merged with 21 meter readers, 89 T&D, and 4 stores department employees represented by the IBEW, and 33 cus- tomer service department employees represented by the Steelworkers at Malden. The undisputed evidence in the record reveals that the transferred employees will be merged with 2 This unit consists of the Employer's customer service department em- ployees, including meter readers 156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD those employees presently at Malden who are in similar or identical classifications or departments. The formerly separate but essentially identical work will now be performed on a fully integrated and commingled basis. The merged group of em- ployees will continue to perform virtually the same work functions as before, except that assignments will be made without regard to the employee's former geographic work area. The record also es- tablishes that the merger will not significantly alter the Employer's current policies and procedures with respect to servicing its customers in the North Shore and Malden areas. In its brief, the Employer asserts that the merger resulted in the formation of a "new operation" at Malden and the effective obliteration of any sepa- rate identity among the former four bargaining units. The Employer, however, proffered no posi- tion with respect to the appropriate bargaining unit or units at the Malden location, or whether the operational and organizational changes resulted in either an accretion to the existing bargaining units at Malden or a question concerning representation or both. The Unions affected by the merger advanced number of contentions concerning the unit and rep- resentational issues presented by the petitions herein. The Steelworkers urges dismissal of the pe- tition in Case -RM-1059, asserting that the sever- al unions can continue to represent their constitu- encies during the term of their agreements and that, as there are no conflicting representational claims made by the unions involved herein, no question concerning representation is presented by that petition. Relying on Boston Gas Company, 235 NLRB 1354 (1978) (hereinafter Boston Gas II), the Steelworkers further asserts that the transferred customer service employees, excluding meter read- ers, should be considered an accretion to the exist- ing customer service unit represented by the Steel- workers at Malden. In this respect, the Steelwork- ers contends that, consistent with the principles set forth in General Extrusion,3 their contract should be considered a bar to the petition in Case -RM- 1059. However, should the Board find that a ques- tion concerning representation exists, the Steel- workers urges that a separate office clerical unit, excluding meter readers, be found appropriate. The BUW, on the other hand, noting that it has filed two grievances with respect to the Employer's transfer of the employees represented by it at Bev- erly, argues that under the decision in Collyer Insu- lated Wire, A Gulf and Western Systems Co., 192 NLRB 837 (1971), the Board should hold this case s General Extrusion Company, Inc., General Bronze Alwintite Products Corp., 121 NLRB 1165 (1958). in abeyance pending resolution through the arbitra- tion process of the contractual issue. 4 Alternative- ly, the BUW urges dismissal of the petitions, assert- ing that separate representation can continue at Malden. Similarly, the UWUA urges dismissal and contends that separate representation can continue at the merged location. The UWUA also urges dis- missal on the separate ground that the petitions were filed prematurely, i.e., prior to the actual completion of the transfer and merger process, 5 and therefore that any evidentiary findings with re- spect to those petitions would speculative. Apart from the foregoing, the UWUA contends that the unit clarification petition should be dismissed as wholly inappropriate in that the merger will raise substantial doubts as to the IBEW's continuing ma- jority status, and that the bargaining unit currently represented by the IBEW is inappropriate. The UWUA further argues that if the Board should reach the merits of the unit and representational issues raised by the petitions herein, the Board should find that the merged operation constitutes a "new operation," dismiss the unit clarification peti- tion, and find that a question concerning represen- tation is raised requiring a Board-conducted elec- tion in an overall unit consisting of meter readers, T&D, stores department, and customer service em- ployees. However, if the Board ultimately finds two units appropriate, the UWUA asserts that one should consist of T&D and stores department em- ployees, and the other of the customer service de- partment employees, including meter readers. The IBEW, though urging dismissal because it has bar- gained on a systemwide basis, takes no position with respect to the issues presented by the peti- tions. With the issues and contentions of the parties thus joined, we now turn to the merits of the issues presented by the petitions. At the outset, we reject the BUW's contention that we should defer to the pending grievance proceeding involving that Union and the Employer. The Board has consistently de- clined to leave to an arbitrator the responsibility for determining unit questions such as whether a newly acquired plant is an accretion to an existing bargaining unit covered by a collective-bargaining agreement.s Further, deferral is particularly inap- 4 The Steelworkers urges the accretion of 10 Lynn meter readers to the Malden unit represented by the IBEW. However, any doubts as to their placement should be resolved, according to the Steelworkers, by af- fording all meter readers the opportunity to vote a Globe ballot, as to whether they desire placement in an office clerical unit or in a physical unit. I As noted above, the petitions herein were filed on November 8, 1978, and the hearing in this matter was held December 27 and 28, 1978. The merger, however, was not scheduled to be completed until January 2, 1979. ' See, e.g., Germantov.n Development Co.. Inc., 207 NLRB 586 (1973). MASSACHUSETTS ELECTRIC COMPANY 157 volved in the grievance proceeding are not coex- tensive with those involved herein. In our judg- ment, it would not effectuate the purposes of the Act to hold in abeyance a decision affecting the representational interests of 260 employees for a possible resolution of a breach of contract dispute involving the interest of only 8 employees. We also reject the UWUA's contention that further process- ing of the instant petitions is barred because the pe- titions were filed prior to completion of the merger process. In so doing, we note that the scope and the composition of the merged unit is not in doubt. Furthermore, only a few days separated the sched- uled completion of the merger process and the hearing in this matter. Accordingly, we find that the representational and unit issues raised by the petitions are properly before us. Our review of the record here, in light of rel- evant Board principles, leads us to conclude that a question concerning representation is raised by the petitions. We shall therefore dismiss the petition in Case 1-UC-258 and, for the reasons set forth below, shall direct elections in separate units of the Employer's customer service department employ- ees and its T&D and stores department employees. Under normal accretion principles, when em- ployees are transferred from an employer's facility where operations have ceased and are joined with similarly situated employees covered by a collec- tive-bargaining agreement at another of the em- ployer's facilities, they will be considered an accre- tion to that contract unit if the functions and classi- fications of the transferred employees remain essen- tially unchanged. Here, although the employees that have been transferred to MaIden are perform- ing functions and duties similar to those performed prior to the merger, they had been represented pre- viously by labor organizations different from those representing employees at Maiden. Furthermore, these employees continue to be the subject of com- peting representational claims at the merged loca- tion. We are therefore confronted with the merger and commingling of employees represented histori- cally by different labor organizations, and covered under different collective-bargaining agreements. 7 In these circumstances, statutory policies will not be effectuated if, through the application of ordi- nary principles of accretion, a bargaining agent is imposed on either unit of the newly integrated op- eration found appropriate. s We therefore find that I See National Carloading Corp. and Pacific & Atlantic Shippers, Inc., 167 NLRB 801, 802 (1967); Boston Gas Company, 221 NLRB 628, 629 (1975) (hereinafter Boston Gas I), General Electric Company, 170 NLRB 1272, 1274 (1968). ' See National Carloading. supra at 802. In so holding, we reject the Steelworkers contention that under the General Extrusion principles, the incoming clerical employees should be considered an accretion to the ex- isting bargaining unit at Malden. To hold that 33 employees may choose a question concerning representation is presented by the petitions.9 Accordingly, the current con- tracts between the Employer and the Unions are not a bar to the holding of elections in the units de- scribed below. In so holding, we are cognizant of the fact that none of the Unions involved here represents such an overwhelming majority of the employees in either of the units found appropriate as to warrant the conclusion that no question concerning repre- sentation exists.' ° Further, we reject the conten- tion that separate representation can continue at the merged location as it did at the former separate locations. To accept that contention would ignore the fact that these employees continue to be the subject of competing representational claims in the units we find appropriate at the existing merged lo- cation. For all these reasons, we believe that the impediment to the development of productive col- lective-bargaining relationships posed by such con- flicting representational claims can best be resolved through Board-conducted elections. 4. As noted, the Employer petitioned for an elec- tion in separate units of "physical" and clerical em- ployees. The "physical" unit comprises the employ- ees in the T&D and stores departments. The cleri- cal unit comprises the employees in the customer service department. The Steelworkers supports finding appropriate a separate unit of clericals, al- though they would exclude meter readers. In its brief, the UWUA argues that only a unit coexten- sive with the Employer's overall merged operation at Maiden is appropriate. We disagree. Under Board policy, office clericals are customarily ex- cluded from a production and maintenance unit." Our review of the circumstances herein does not persuade us to depart from that policy. In this regard, we note that there is a checkered bargain- ing history with respect to the unit placement of clericals and as to the scope and composition of units at the Employer's Lynn, Malden, and Beverly facilities. Accordingly, we find that at the Malden the bargaining representative of 37 employees is contrary to the majori- tarian principles of the Act. See Panda Terminals. Inc.. etc., 161 NLRB 1215, 1223 (1966); General Electric Company, 185 NLRB 13, 14 (1970). In this connection, we find that the decision in Boston Gas II11, cited in the Steelworkers brief, is distinguishable. There, unlike here, the Steelwork- ers was sufficiently predominant (184 present to 80 incoming employees) to remove any question concerning representation. a Cf. Westinghouse Electric Corporation, 144 NLRB 455 (1963); National Carloading. supra: Boston Gas i. supra: General Electric Company, supra. 0o See National Carloading Corp., supra at 802 and Boston Gas 1. supra at 629. Without regard to the meter readers, the record shows that there are approximately 66 "physical" employees represented by the UWUA and 8 represented by the BUW joining at MaIden 93 "physical" employ- ees represented by the IBEW. There are as noted 37 clerical employees represented by the UWUA joining 33 clericals represented by the Steel- workers at Malden " See eg., Hygeia Coca-Cola Bottling Company, 192 NLRB 1127 (1971); Westinghouse Electric Corporation, 118 NLRB 1043. 1047 (1957). 158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD service center separate units of T&D/stores depart- ment employees and customer service department employees are appropriate for collective bargain- ing. An issue has been raised also with respect to the unit placement of the meter readers. 2 The UWUA asserts that if an overall unit is not found appropri- ate, the meter readers should be combined with the employees in the customer service unit. The Steel- workers, on the other hand, contends that the meter readers are more appropriately placed with the T&D and stores department employees. The record reveals that, at Lynn, the meter readers are part of an overall unit represented by the UWUA. At Malden, however, the meter readers are part of the T&D and stores department unit represented by the IBEW. Meter readers, according to the record, are administratively attached to the cus- tomer service department and perform the largely clerical functions of ascertaining customer electri- cal usage and recording readings in a route book. The record also reveals that meter readers have little regular contact with either the customer ser- vice or the T&D/stores department employees. However, at Malden, the meter readers, when absent, are usually replaced with employees from the T&D department; and meter readers normally progress to other positions in the T&D department. Further, there is no evidence of any interchange between meter readers and customer service em- ployees. From the foregoing, it appears that the meter readers have a sufficient community of interest to be included with either the T&D and stores depart- ment unit or the customer service department unit.1 In these circumstances, we shall permit the meter readers to vote a Globe-type ballot14 to decide: (1) whether they want to be included in the unit of T&D and stores department employees, or in a unit of customer service department employ- ees, and, (2) having expressed their desire for inclu- sion in one of these two units, what representation they would select in that unit.' 5 Accordingly, we shall not make a final determination at this time with respect to the unit placement of the meter readers but shall direct that elections be conducted in the following voting groups at the Employer's Malden facility: 12 The Employer states in its brief that it takes no position with re- spect to the unit placement of the meter readers. 3s No union seeks a unit limited to the meter readers. 4 The Globe Machine and Stamping Co., 3 NLRB 294 (1937). x' See Boston Gas I, supra at 629-603 (1975) (wherein the meter read- ers were provided a Globe ballot to determine whether they desired to be included with a unit of customer inquiry employees or a unit of service and operations employees). Voting Group (a): All meter readers employed at the Employer's Malden, Massachusetts fa- cility, excluding all other employees, guards, watchmen, and supervisors as defined in the Act. Voting Group (b): All employees of the Em- ployer located at its facility in Malden, Mas- sachusetts, in the customer service depart- ment, excluding the meter readers in Voting Group (a), and all guards and supervisors as defined in the Act. Voting Group (c): All employees of the Em- ployer located at its facility in Malden, Mas- sachusetts, in the transmission and distribu- tion department and stores department, ex- cluding the meter readers in Voting Group (a), the employees in Voting Group (b), all guards and supervisors as defined in the Act. The employees in voting group (a) will be asked to answer the following questions on their ballots: (1) Do you desire to be included with the employees in voting group (b) or (c) for the purpose of collective bargaining? If you have indicated a desire to be included with the employees in group (b), please answer only question (2) below. If you have indicated a desire to be included with the employees in group (c), please answer only question (3). (2) If you have indicated a desire to be in- cluded with the employees in voting group (b), and a tally of ballots as to question (1) shows that a majority of the employees in voting group (a) desires to be included with group (b), do you wish to be represented for pruposes of collective bargaining by the UWUA or the Steelworkers, or by neither?' 6 (3) If you have indicated a desire to be in- cluded with the employees in group (c), and a tally of ballots as to question (1) shows that a majority of the employees in group (a) desires to be included with the employees in group (c), do you wish to be represented for pur- poses of collective bargaining by the UWUA, the IBEW, or the BUW, or by none? If a majority of the employees in group (a) vote to be included with the employees in group (b), the tally of ballots as to question (2) shall be pooled '6 If any Union currently designated on the ballot does not wish to represent employees in either of the units described above, it shall notify the Regional Director to that effect within 10 days of the date of this Decision and Direction of Election and its name will be removed from the appropriate question on the ballot. Similarly, if any Union involved herein desires to represent employees in a unit for which it is currently not designated on the ballot, it shall also notify the Regional Director within 10 days of this Decision and Direction of Election and its name will be added to the appropriate question on the ballot. MASSACHUSETTS ELECTRIC COMPANY 159 with the ballots of the employees in voting group (b) and a combined tally of ballots shall be issued and served on the parties. If a majority of the em- ployees in group (a) vote to be included with the employees in group (c), the tally of ballots as to question (3) shall be pooled with the ballots of the employees in voting group (c) and a combined tally of ballots shall be issued and served on the parties. [Direction of Election and Excelsior footnote omitted from publication.]