Brooklyn Union Gas Co.

BROOKLYN UNION GAS COMPANY 441 However, through inadvertence, the Board did not specifically amend the Direction of Election to provide a new eligibility date. As a consequence, the eligibility date used by the Regional Director in conducting the election on December 22 and 23, 1958, was the payroll period immediately preceding the date of the original Decision. Consistent therewith, the ballots of all mill employees who voted in the. election were challenged. However, it cannot be ascertaind how many other mill employees failed to appear at the polls because the election notices erroneously set forth an eligibility period antedating their employment at the mill. In the circumstances, and as the votes of mill employees are sufficient to affect the election results, we be- lieve it will best effectuate the policies of the Act to set the election aside and direct a new election herein.3 [The Board set aside the election held on December 22 and 23, 1958.] [Text of Direction of Second Election omitted from publication.] 3 1n view of this disposition, we need not consider the effect of the challenged ballots upon the election. Brooklyn Union Gas Company and Local 101, Utility Division, Transport Workers Union of America, AFL-CIO, Petitioner. Cases Nos. 2-RC-9689 and 2-IBC-9727. March 27, 1959 DECISION AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9 (c) of the National Labor Relations Act, a hearing was held before Winifred D. Morio, 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-mem- ber panel [Chairman Leedom and Members Bean and Fanning]. Upon the entire record in this case,' the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act. i On February 26, 1959, the IBEW filed a motion with the Board 'to reopen the hearing for the purpose of taking evidence with respect to a proposed consolidation of Brooklyn Union Gas Company and Brooklyn Borough Gas Company. The Employer and Petitioner filed motions in opposition. The Utility workers took no position on the motion. As the consolidation cannot be consummated until approved by the Public Service Commission of New York State and by the stockholders of the two companies involved, and as it is not possible to determine when 'such approval will, if ever, be given, the actual consolidation and its effect upon the Employer's operations are at this time speculative and remote. Moreover, the IBEW has failed to show with reasonable specificity just wiiat evidence it intends to introduce at a reopened hearing and how such evidence might bear upon the issues now before the Board . Under these circumstances we find that no proper purpose would be served in reopening the hearing and the motion is, therefore, denied. 123 NLRB No. 68. 442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 2. The labor organizations involved claim to represent employees of the Employer.2 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. 4. The Employer, a gas utility, is a consolidated company com- posed, insofar as is material here, of what is referred to as the "old" Brooklyn Union Gas Company, the Kings County Lighting Company, and the Richmond Gas Company. Prior to the consolida- tion of January 15, 1957, and since 1943, the Utility Workers repre- sented the physical and clerical employees, about 216 in number, of the Kings Company, whose franchise for home and industrial gas distribution covered generally the Bay Ridge area of the* Borough of Brooklyn, New York City. IBEW similarly represented since 1946 the 99 physical workers of the Richmond Company whose franchise covered certain areas of the Borough of Richmond on Staten Island, while the Petitioner, Transport Workers, represented since 1942 all physical and clerical workers numbering approximately 3,000 of "old" Brooklyn Union whose franchise extended over parts of the boroughs of Brooklyn and Queens. At the time of the consolidation each of the unions had outstanding bargaining agreements with their respec- tive companies, and after that event Brooklyn Union administered these contracts and has continued to recognize the unions for the employees they have traditionally represented. In March of 1957 it entered into a new agreement with the Transport Workers to run from April 1 of that year till March 31, 1959, while the following spring it negotiated supplemental agreements with the Utility Work- ers and the IBEW for the period from June 1, 1958, to May 31, 1959.3 In this proceeding the Transport Workers seeks to combine into a single, companywide unit all of the Employer's physical and clerical employees by merging the former Kings and Richmond Company employees into the unit it presently represents. Such unit would include not only the employees currently represented by the Inter- venors but certain unrepresented clerical employees working on Staten Island. The Transport Workers contends, and the Employer 2 Local Union No. 3, International Brotherhood of Electrical Workers , AFL-CIO (herein called IBEW) and Utility Workers Union of America Local 1-2 (Kings County Division), AFL-CIO ( herein called Utility Workers ) intervened at the hearing upon the basis of their current bargaining agreements concerning employees in the requested unit . However, the Petitioner has throughout this proceeding resisted the intervention of IBEW and Utility Workers on the grounds that they do not have sufficient interest, in view of the small size of their contractual units, to support their interventions . The Board has long held that a contractual interest in employees in a requested unit is sufficient to support Intervention in a proceeding . See Brown-Ely Co ., 87 NLRB 27, 28, footnote 2. We are not persuaded, as urged by the Petitioner , that •a different rule should be applied In this case. 8 The contracts are not alleged as a bar to this proceeding. BROOKLYN UNION GAS COMPANY 443 agrees, that the requested overall, systemwide unit is alone appro- priate.4 The IBEW contends, however, that its unit of physical employees on Staten Island, despite the merger, is still appropriate, conceding, though, that a unit of such employees with the presently unrepresented clericals might be preferred. The Utility Workers takes no position on the unit but requests that it be placed on the bal- lot in any election the Board may direct. Since the consolidation, many of the administrative functions which had been separately handled by the merged companies have been centralized in the offices of Brooklyn Union. Thus all super- vision from the department heads up to the company president is located in Brooklyn Union territory, as is a large part of lower supervision. All accounting and payroll administration has been located in Brooklyn Union offices, while hiring, except for laborers on Staten Island, has been similarly centralized. Also, certain physi- cal work such as meter and vehicle repair is now done in "old" Brooklyn Union shops. The Employer has also taken a number of steps to establish uniform working conditions throughout the com- pany. The stock purchase plan, welfare programs, and other fringe benefits of "old" Brooklyn Union have been made applicable to all employees of the company, and steps have been taken to establish uniform job classifications, rates of pay, and work practices. The negotiation and administration of labor agreements is handled for the Employer by the staff of its personnel department at its principal office in the "old" Brooklyn Union area. The changes made since the merger have substantially affected the former Kings Company unit. Out of a total of approximately 55 clerical employees in that unit some 43 are permanently assigned to the "old" Brooklyn Union offices where they work side by side with, and under the same immediate supervision as, clerical employees in Petitioner's unit. Also, of the 138 physical employees in that unit 24 now work in "old" Brooklyn Union shops with employees in the Petitioner's unit. The physical employees so transferred include such classifications as meter mechanics, mechanics, and helpers. Of the remaining 111 physical workers of the Kings Company unit, a substantial number, the streetworkers, have for administrative pur- poses been placed by the Employer in a section called Kings Street West which covers all of the former Kings Company's franchise area and part of "old" Brooklyn Union's area in Brooklyn. In terms of personnel this section includes not only former Kings Company streetworkers, but a number of streetworkers in Petitioner's present unit. If possible the streetworkers are assigned to work in areas covered by their original companies, but are in fact assigned to those 4 The Petitioner stated as an alternative that it would accept any unit which the Board may find appropriate. 444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD locations where they are needed. As a result employees included in the former King's Company unit work "fairly" regularly together with employees in the "old" Brooklyn Union. unit and under the same immediate supervision. The only employees represented by the Utility Workers who seem to be relatively untouched by the merger are the Kings Company meter readers who apparently work in their old area and under immediate supervision separate from that of other employees. Despite the transfers of employees out of the Kings Company area and the intermingling of Brooklyn Union and Kings Company streetworkers in the Kings Street West section as described above, the Employer has continued to recognize the Utility Workers as the representative of all those employees it represented before the con- solidation. This practice has resulted, for example, in two clerical employees in the Employer's main office who work side by side and under the same supervision being represented by different unions. The same situation has arisen with respect to meter repairmen and other classifications, and has found expression in the recognition clause of the 1958 agreement between the Utility Workers and the Employer. Where as the former Kings Company recognized the union as the representative of all its employees in certain classifica- tions, the present Employer recognizes the union as the representa- tive of certain individuals in certain classifications, but not as repre- senting all employees in a given area or classification. As the record makes clear, the identification of the individuals to be represented by the Utility Workers is based largely on their membership in that union. The 1958 agreement is, thus; close to being a members-only contract. Despite the various changes effected since the merger, there have been no substantial modifications made affecting the employees in the IBEW's unit located on Staten Island. Geographically, Staten Island is distinctly separate from the other areas of the Employer. Certain work, such as meter repair, has been permanently transferred from the Island and, thus, outside the jurisdiction of that union. But such transfers have affected relatively few employees, who have, moreover, not permanently followed the work but transferred to jobs within the IBEW's bargaining unit. The IBEW does not claim to represent any employees working in areas over which the other unions, parties to this proceeding, have had jurisdiction. There have been some employees assigned to Staten Island from Brooklyn since the merger, but for the most part their jobs have involved work not normally done by employees in the IBEW's bargaining unit and have largely been of temporary duration. Generally, the employees represented by the IBEWT perform the same type of work in the BROOKLYN UNION GAS COMPANY 445 same areas as they did before the consolidation. They have their own separate immediate supervision, though there is apparently no single "resident" manager responsible for all the work done by the employees in the Staten Island unit. Moreover, the Staten Island employees do not to any substantial extent interchange with employ- ees in other areas of the company. There have been since the merger no modifications, such as that noted above with respect to the Utility Workers, of the recognition clause in the IBEW's agreement with the Employer. Rather the union continues to operate under the clause as it appears in the last contract with the Richmond Company. The Petitioner and Employer contend, as noted above, that as a result of the integration which has taken place since the consolida- tion the only appropriate unit is one covering all the company's op- erations. Clearly, a number of factors listed above such as central- ized control of labor relations, and integration of accounting and clerical functions, support a finding that a company, or systemwide, unit is appropriate, in accordance with the Board's long-established policy favoring such units in the public utilities field.' However, in many situations the rigorous application of that policy is tempered by the'rights of employees in existing bargaining, units or in identifi- able unrepresented groups to a self-determination election before be- ing merged in a larger unit.6 The employees in the Utility Workers' unit, unlike those of the IBEW unit and the groups of unrepresented clericals on Staten Island, do not fall within this exception. As the facts outlined above show, the Utility Workers unit is no longer capable of being identified but has, as a result of the consolidation, ceased to exist. About 80 percent of the clerical employees and roughly 20 percent of the physical employees have been permanently transferred outside the area covered by the historical unit, and, of those physical employees who remain, a substantial number, the streetworkers, work under the same immediate supervision as em- ployees in the Petitioner's present unit and are assigned to an ad- ministrative subdivision which areawise embraces not only their Kings Company territory but a substantial segment,of that of "old" Brooklyn Union. Furthermore, the existing bargaining agreement 5 See New England Power Company, 120 NLRB 666. 9 See Montana-Dakota Utilities Co., 110 NLRB 1056, 1057; Pennsylvania Electric Company, 110 NLRB 1078, 1080. The Petitioner and Employer in support of their position that a systemwide unit of all the company's employees is alone appropriate, cite The Laclede Gas Light Company, 77 NLRB 354, in which the Board first announced a policy of favoring the optimum or systemwide unit in the public utility field. However, on several occasions since that case was decided the Board has stated that "The policy favoring system-wide units for public utilities has not precluded the Board from applying the self-determination principle with respect to unrepresented groups sought to be added to the existing contract unit." Montana-Dakota Utilities Co., supra, footnote 5, and cases there cited . See cases cited in footnote 7 below for application of the self-determination election rule to established bargaining units in the public utilities field. 446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD between the Utility Workers and the Employer is not based upon the previous, long-established bargaining unit, but in effect has, as previously stated, shifted in large part, if not wholly, to a mem- bers-only basis. Consequently, the Utility Workers seeks no well- defined bargaining unit or other separate identifiable group of em- ployees, but a shifting group whose only common bond is member- ship in the same union. Under these circumstances, we find that any separate bargaining with Utility Workers that has occurred since the merger 7 is entitled to little weight in determining whether or not a unit broader than the Utility Workers' current contract unit is appropriate. Under such circumstances, the Board's general policy favoring optimum units in the public utility industry, as well as considerations of stability in labor relations, dictates inclusion of the employees in the former Kings Company and "old" Brooklyn Union units in a single unit .8 As for the.IBEW's Staten Island unit, it is clear, and we find, that the consolidation and subsequent administrative and operational re- organization have not, materially affected that unit. As set forth above, the Staten Island physical employees in the IBEW's unit are assigned to the same areas and perform essentially the same type of work as before the merger, and the long history of bargaining for these employees has continued uninterrupted and unchanged until the present. It may, therefore, if the employees so desire, constitute a separate appropriate unit. These factors preclude the inclusion of such employees in a systemwide or optimum unit without a self-de- termination elections Similarly, we find that the unrepresented clerical employees on Staten Island, whom the Petitioner seeks to include in its broader unit, are entitled to a self-determination elec- tion, for they constitute a residual, readily identifiable group of office clerical employees.10 However, as the Petitioner has not made an adequate showing of interest among either the physical or clerical employees on Staten Island and as the IBEW does not seek an election among the employees it now represents, we shall not direct an election in voting groups composed of such employees.- 7 As to the bargaining history prior to the merger, it is now well settled that such history does not survive a merger having the results such as occurred here with respect to the Kings Company unit of the Utility Workers. See Hooker Electrochemical Company, 116 NLRB 1393. 8 Hooker Electrochemical Company, supra. 9 Pennsylvania Electric Company, 110 NLRB 1078; Upper Peninsula Power Company, 110 NLRB 1082, 1085; see also, The Hartford Electric Light Company, 122 NLRB 1421. 10 Montana-Dakota Utilities Co., supra. u Pennsylvania Electric Company, supra ; The Hartford Electric Light Company, supra. The IBEW suggests, as noted above, that a single unit of its Staten Island physical employees and the unrepresented clerical employees might be preferred to its present unit of physical employees only. For the reasons given above, the clericals would be entitled to a self-determination election before being included in the IBEW's established unit. However, the IBEW Chas not requested that such an election be held nor has it made a sufficient showing to warrant our holding such an election. STEWART DIE CASTING DIVISION (BRIDGEPORT), ETC. 447 In view of the foregoing, we shall direct that an election be held among the following employees of the Employer who, we find, con- stitute, under the circumstances of this case, a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All employees of the Employer working in or per- manently assigned to operations in the boroughs of Brooklyn and Queens, New York, excluding executives, superintendents, heads of departments, foremen, skilled technical employees in the chemical laboratories other than those who have by mutual agreement in the past been included in the bargaining unit, confidential employees, guards, and all supervisors as defined in the Act. [Text of Direction of Election omitted from publication.] Stewart Die Casting Division (Bridgeport) of Stewart Warner Corporation and Stewart Die Casting Independent Union Local #1, Petitioner. Cases Nos. 2-RC-9623 and 2-RC-9667. March 27, 1959 DECISION, ORDER, AND DIRECTION OF ELECTION Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held in Case No. 2-RC-9623 be- fore Sidney H. Levy, hearing officer. The hearing officer's rulings made at the hearing are free from prejudicial error and are hereby affirmed.' Prior to this hearing the petition in Case No. 2-RC-9667, which was filed on November 3, 1958, was dismissed by the Regional Director because it covered the same issues as the petition in Case No. 2-RC-9623. The Peitioner has filed a timely request for review by the Board of this dismissal, contending, as does the Employer, that these two petitions should have been consolidated for hearing. As will appear hereinafter, the disposition of this request for review is necessarily governed by the Board's decision with respect to Case No. 2-RC-9623. Accordingly, these cases are hereby consolidated for purposes of decision. Upon the entire record in these cases 2 the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act. 2. The Intervenor contends that the Petitioner is not a labor or- ganization within the meaning of Section 2(5) of the Act. The Peti- 'The Intervenor, International Union, United Automobile, Aircraft, and Agricultural Implement Workers of America, UAW, AFL-CIO, was permitted to intervene on the basis of its contractual interest in the employees involved herein. = The Intervenor' s motion to correct the transcript is hereby granted, in the absence of specific objections thereto. 123 NLRB No. 52.