New Jersey Natural Gas Co.

NEW JERSEY NATURAL GAS COMPANY 251 in the Union , the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 ( 6) and (7) of the Act. [Recommendations omitted from publication in this volume.] NEW JERSEY NATURAL GAS COMPANY and INTERNATIONAL BROTHER- HOOD OF ELECTRICAL WORKERS, AFL, PETITIONER. Case No. 4-RC- 1612. November 6, 1952 Decision and Direction of Elections Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Eugene M. Levine, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.:, Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Houston, Murdock, and Styles]. Upon the entire record in this case, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. 2. The labor organizations involved claim to represent certain em- ployees of the Employer. 3. A question affecting commerce exists concerning the representa- tion of employees of the Employer within the meaning of Section 9 (c) (1) and Section 2 (6) and (7) of the Act. On June 3, 1952,2 the Employer acquired the gas properties of the New Jersey Central Power and Light Company. Until shortly be- fore that date the Employer was known as the County Gas Company, and under that name has bargained with the Intervenor, Utility Co- Workers Association, on the basis of 2 units certified by the Board in 'In its brief the Employer objected that the hearing officer had not permitted it to introduce evidence tending to prove that supervisors had been active "in creating peti- tioner's local union." In denying the Employer's request to cross-examine union witnesses on this subject, the hearing officer ruled that the Employer should make the witness its own. He then suggested that the matter be taken up by brief. Although reiterating this occurrence at the hearing and requesting a dismissal of the petition or a further hearing on this ground, the Employer has made no attempt in its brief to elaborate on its bare contention at the hearing. At no time has it indicated that it had affirmative evidence to offer on this subject. Consequently we deny its motion. 2 The actual contract of purchase was made December 3, 1951. 101 NLRB No. 61. 252 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1944 and 1946 respectively : A unit of manual or operating employees, consisting of 47 employees, and a unit of "commercial and sales de- partments" employees, 28 in number. The most recent contracts for these units were executed in January 1952 for terms of 1 year and took cognizance of the proposed merger by including clauses con- cerning the seniority rights of New Jersey Central Power and Light Company employees. As a result of the merger the Employer ac- quired approximately 300 employees from the New Jersey Central Power and Light Company, a much larger complement of employees than it had previously employed. These newly acquired employees have been represented by the Petitioner 3 Actual integration of the 2 operations has occurred, and the new employees have been notified that their existing wage scale would be continued and that some "interim policies" of the Employer would be conformed to the contractual terms under which they had been working. In its petition in this proceeding the IBEW requested a unit of all production, maintenance, and clerical employees, but stated at the hearing that it would represent the employees in separate operating and clerical units if the Board deemed them appropriate. The Inter- venor urges its January 1952 contracts as a bar. The Employer con- tends that the petition should be dismissed because a decertification petition rather than a representation petition should have been filed, and in any event, that "one all inclusive unit" is not appropriate. We view the merger of these two gas utility systems, which resulted in a fivefold expansion of the Employer's original operation, as com- parable to an entirely new operation; consequently the January 1952 contracts covering only a fraction of the enlarged employee comple- ment then contemplated are no bar to a present determination of representatives." In these circumstances decertification of the Inter- venor, as suggested by the Employer, would be a futile thing. The unit contentions of the parties are discussed below. 4. Both the Employer and the Intervenor oppose the single, unit of operating and clerical employees requested by the Petitioner, urging ' The bargaining contracts between the Petitioner and the New Jersey Central Power and Light Company are not in evidence because of the Employer's objection to their relevance, nor is there testimony as to the type unit or units they covered Apparently all gas operating employees of the New Jersey Central Power and Light Company were employed by this Employer. Whether some commercial office employees were also taken over Is not clear In the circumstances of this case we see no merit in the Intervenor's contention that the Act does not contemplate a bargaining agent securing its showing of interest before the Individuals it seeks to represent have actually become employees of the Employer. We are administratively satisfied that the Petitioner has made a sufficient showing of Interest. ' See General Electric Companni (Medford Plant), 85 NLRB 150; Goodyear Tire and Rubber Company, 80 NLRB 1347; see also The Laclede Gas lAght Company, 77 NLRB 354, where the Board recognized that the merger of two gas utility systems would be less effective If bargaining were continued In separate units following premerger fines. NEW JERSEY NATURAL GAS COMPANY 253' the continuance of a separate operating unit and a separate commer- cial office unit. In addition, their position is that general office clerical employees, if they are to be represented at all, should be in a third unit .5 The bargaining unit for the so-called manual or operating employ- ees has included employees engaged in production of gas, street de- partment employees maintaining mains and service, customer service employees, fitters, meter shop employees, garage mechanics, dispatch- ers, and distribution watchmen. Service employees of the unit are dispatched for work out of a central operations building and only occasionally pick up a work order at one of the Employer's commercial offices. This operating group numbered 350 at the time of the hearing. The commercial office unit has included tellers, cashiers, collectors, meter readers, billing clerks, contact clerks, customer accountants, and janitors. These employees work in the Employer's 17 commercial offices, which are located in various New Jersey cities. They numbered 120 at the time of the hearing. The general office clerical employees work at a separate location, the general office of the Employer at Allenhurst, New Jersey. This group seems to have numbered 8 or 10 at the time of hearing; its expansion to 30 within 6 to 9 months is contemplated when modified accounting systems have been installed. These employees maintain payroll rec- ords, general stores records, and company accounts. There is no interchange between commercial office and general office employees, although both are ultimately supervised by the comptroller, and little contact between either of them and manual or operating employees, whose ultimate supervision is the Employer's operating manager. As this record shows no appreciable contact or community of interest between operating employees and the various clerical em- ployees, no instances of transfers between them, and bargaining for them has been separate in the past, we are of the opinion that a unit limited to manual or operating employees of the Employer, from which commercial office and other clerical employees are excluded, is an appropriate unit for collective bargaining purposes .6 In its brief the Petitioner states that a clerical unit, if ordered, should be a single unit including employees in the commercial offices, who have been represented by the Intervenor, as well as employees in s The Intervenor does not touch upon this point in its brief. At the end of the hearing it, like Petitioner , said that it would wish to go on the ballot for any unit found appropriate. 6 Indianapolis Power & Light Company, 76 NLRB 136 ; Kansas City Power & Light Company, 75 NLRB 609 ; compare East Ohio Gas Co., 94 NLRB 61 , where integration and interchange were present ; see also Appalachian Electric Cooperative, 93 NLRB 1348, where the Board found appropriate separate maintenance and clerical units for an electric cooperative for whose employees there had been no bargaining , stating that it saw no justification for departing from the Board 's customary practice of excluding office clerical employees from production and maintenance units. 254 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the general office of the Employer. Apparently clerical employees in the general office have not been represented in the past. The Inter- venor, although it wishes to appear on the ballot should an election in such a unit be directed, requests no election. Inasmuch as the Peti- tioner has not made an adequate showing of interest among these employees, whether separate units of commercial office employees and of general office clerical employees, or a combined unit, should be found appropriate, we shall make no finding concerning the appropri- ate unit or units for clerical employees. Our determination in this matter is without prejudice to the filing of a separate petition or petitions for the various clerical employees at such time as the required showing of interest can be made. Street foremen. The Employer would exclude from the operating unit, as supervisors, the 19 street foremen who ordinarily work with small crews of 3 or 4 in installing and maintaining gas mains pursuant to work orders.7 Both the Petitioner and the Intervenor contend that these foremen work along with the crews, giving only routine direc- tions, hence are properly within the unit. Testimony indicates that the foremen do work along with their crews, although the Employer introduced evidence to the effect that they were instructed to do so only in case of emergency. The Employer also introduced testimony that the recommendations of these men as to dismissal, promotion, or demotion was "considered very seriously by the superiors," and that they had authority to recommend hiring. The record contains no specific examples of such recommendations. In addition it seems clear that they are purely advisory. In the case of discharge we note that 4 additional employees, including the general superintendent of distri- bution, would be consulted before a discharge occurs. On these facts, we conclude that the street foremen are not supervisors within the meaning of the Act." The parties stipulated that junior engineers in the operation de- partment, of whom there are three, are professional employees, and requested that they be given an opportunity under Section 9 (b) (1) of the Act to vote whether they wish inclusion in a unit with the non- professional employees.9 In accordance with the provisions of the Act, we direct separate elections in the following voting groups : (a) All manual or operating employees of the Employer, New Jer- sey Natural Gas Company, Allenhurst, New Jersey, engaged system- wide in the production and distribution of gas, excluding junior 7 The total labor crew is 93. 8 See Appalachian Electric Cooperative, 93 NLRB 1348, holding line foreman non- supervisory. 9 The record contains no evidence concerning other professional employees in the operation department. There is no request for a separate professional unit. NEW JERSEY NATURAL GAS COMPANY 255 engineers in the operation department , the secretaries of the superin- tendents of production and dispatching, distribution, and customer service, personnel department employees, sales personnel, home eco- nomics personnel , officers and managerial employees ( including all classifications on Employer's Exhibit No. 1), clerical employees, guards, supervisors as defined in the Act, and all other employees. (b) All junior engineers in the operation department of the Em- ployer, New Jersey Natural Gas Company, Allenhurst, New Jersey, excluding supervisors as defined in the Act, and all other employees. The employees in voting group (b) will be asked two questions on their ballot: (1) Do you desire the members of voting group (b) to be included with the members of voting group (a) in a system-wide unit of manual or operating employees of the Employer for the pur- poses of collective bargaining? (2) If so, do you desire to be repre- sented for the purposes of collective bargaining by the IBEW or by the Utility Co-Workers, or by neither? If a majority of the junior engi- neers in voting group (b) vote "Yes" to the first question, indicating their wish to be included in a unit with the nonprofessional employees, they will be so included. Their votes on the second question will then be counted together with the votes of the nonprofessional voting group (a) to decide the representative for the system-wide manual or operat- ing unit. Our unit determination is thus based in part upon the results of the election among the junior engineers. Should a majority of the latter vote for exclusion from the operating unit, we find the appro- priate unit within the meaning of Section 9 (b) of the Act to be as set out in voting group ( a) above. Should a majority of said junior engineers vote for inclusion, we find that the following constitute an appropriate unit for the purposes of collective bargaining within the meaning of Section 9 (b) of the Act. All manual or operating employees of the Employer, New Jersey Natural Gas Company, Allenhurst, New Jersey, engaged system-wide in the production and distribution of gas, including junior engineers in the operation department, but excluding the secretaries of the superintendents of production and dispatching, distribution, and customer service, personnel department employees, sales personnel, home economics personnel, officers and managerial employees (includ- ing all classifications on Employer 's Exhibit No. 1), clerical employees, guards, supervisors as defined in the Act, and all other employees. [Text of Direction of Elections omitted from publication in this volume.]