Brooklyn Union Gas Co.

BROOKLYN UNION GAS COMPANY 361 Apart from the foregoing inconsistent interpretation of criteria for good- and bad-faith dealings I view the subject matter herein to be clearly controlled by the Supreme Court's caution that collective bargaining is a function of the parties to be resolved by them without outside interferences Bad-faith bargaining is that conduct in which a party engages when it has no real desire nor intent to reach an agreement. The facts supplied by General Counsel , however, provide ample evidence that an agreement was the objective of all parties . Under such circumstances it is not the function of the Board to dictate the manner in which, or the extent to which this objective is to be achieved? Upon consideration of the entire record herein , the briefs and arguments of the parties, and the foregoing findings and conclusions, IT IS HEREBY ORDERED, pursuant to Sections 102.25 and 102.35 (h)8 of the Board's Rules and Regulations , Series 8, that Respondents' respective motions to dismiss the complaint be granted, and that the complaint be accordingly dismissed in its entirety. e N.L.It.B. v. American National Insurance Co., 343 U.S. 395, 404; N.L.R.B. v. Insur- ance Agents' International Union, AFL-CIO (Prudential Ins. Co.), 361 U.S. 477. 4 N.L.R.B. v. Insurance Agents' International Union, supra. 8 See Cherry Rivet Company, 97 NLRB 1303, footnote 1. Brooklyn Union Gas Company and Local 101, Utility Division, Transport Workers Union of America , AFL-CIO, Petitioner. Cases Nos. 2-PC-9689, 2-RC-9727, and 3-R'C-10853. October 11, 1960 SUPPLEMENTAL DECISION, ORDER, AND AMENDMENT OF CERTIFICATION On April 24, 1959, following a Board-directed election,' the Pe- titioner was certified as the collective-bargaining representative of all employees of the Employer working. in and permanently assigned to operations in the boroughs of Brooklyn and Queens, New York.2 On March 23, 1960, the Petitioner filed a motion for clarification in which it requested the Board to amend its certification to include all employees of the Employer who were formerly employed by Brooklyn Borough Gas Company (herein called Brooklyn Borough), which company was consolidated with the Employer on June 1, 1959. In its motion, the Petitioner contends that such employees constitute an accretion to the unit for which it was certified. Thereafter, Local 1869, International Brotherhood of Electrical Workers, AFL-CIO (herein called Local 1869), which is the recognized bargaining repre- sentative of the former employees of Brooklyn Borough, filed an answer requesting dismissal of the Petitioner's motion or, in the al- ternative, a self-determination election. On April 24, 1960, the Board remanded the proceeding to the Regional Director for a hearing. Hearings were held on May 26 and June 15, 1960. On June 17, 1960, Local 1869 filed a petition in Case No. 2-RC-10853 in which it 1123 NLRB 441 (Cases Nos. 2-RC-9689 and 2-RC-9727, referred to herein as the original proceeding). 2 The appropriate unit excluded 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. 129 NLRB No. 38. 362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD requested an election in a separate unit of all physical and office clerical employees formerly employed by Brooklyn Borough. On June 17, the Regional Director issued an order consolidating Case No. 2-RC- 10853 with Cases Nos. 2-RC-9689 and 2-RC-9727, and on July 6, 1960, a further hearing was held on the consolidated cases 3 Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, the Board has delegated its powers herein to a three- member panel [Chairman Leedom and Members Jenkins and Fanning]. Upon the entire record in this case, the Board finds : Prior to their consolidation, the Employer and Brooklyn Borough Gas Company were both engaged in the sale and distribution of gas in New York City. The territory serviced by the Employer extended over a large part of the borough of Queens and all of the borough of Brooklyn except for the area serviced by Brooklyn Borough. Brooklyn Borough's territory covered the remainder of Brooklyn, consisting chiefly of Coney Island, and was surrounded on three sides by the Employer's territory (the fourth side bordering on the Atlantic Ocean). Thus, the two companies were engaged in identical opera- tions in geographically contiguous territories. The Employer employed approximately 2,679 physical and clerical employees in Brooklyn and Queens. These are the employees in the unit repre- sented by the Petitioner; they are covered by a collective-bargaining agreement effective until January 31, 1961. Brooklyn Borough em- ployed about 209 employees who were covered by its contract with Local 1869 effective until May 31, 1960.4 All Brooklyn Borough em- ployees were retained by the Employer. They possess similar skills and perform the same duties as the Employer's "old" employees. After the consolidation, all Brooklyn Borough operations were brought under the control and direction of the Employer's executive and administrative organization, which is organized on a company- wide basis with no separate department or division for the Coney Island area formerly serviced by Brooklyn Borough. Administrative 3 Utility Workers Union of America, Local 1-2, AFL-CIO, appeared briefly on the first day of the hearing but took no position on the issues. The Employer contends that all its physical and clerical employees in the boroughs of Brooklyn and Queens should be included in a single unit and opposes a self -determination election among former Brooklyn Borough employees 4 The Employer has continued to apply the terms of its contract with the Petitioner to the employees in its certified unit, and the Brooklyn Borough -Local 1869 contract to the former Brooklyn Borough employees. Within limitations permitted by the latter con- tract, it has , however, extended to former Brooklyn Borough employees certain benefits previously available to its "old" employees , such as its stock-purchase , sales lead, and appliance discount purchasing plans On March 22, 1960 , the Petitioner requested recognition as representative of the former Brooklyn Borough employees on the ground that they had been integrated into the unit for which it was certified On March 23, Local 1869 proposed that the Employer enter into negotiations with it for a new agree- ment covering the former Brooklyn Borough employees . The Employer refused both re- quests and informed the Unions that it would abide by the status quo until the issues raised by the Petitioner 's motion for clarification were resolved by the Board BROOKLYN UNION GAS COMPANY 363 and accounting procedures, including bill collecting and payroll, and employees engaged therein, are centrally located and under common overall supervision. This is equally true of labor relations, employee training, laboratory work, meter repair work, and dispatching. While it is the Employer's policy to continue to employ employees in the areas with which they are familiar and where their homes are located, it has transferred former Brooklyn Borough employees out of the Coney Island area and its "old" employees into that area as operations require and as requested by employees. At the time of the hearing, 200 former Brooklyn Borough employees were working for the Employer. Seventy-five, or 37 percent, of them 5 have been permanently trans- ferred out of the Coney Island area to various locations throughout the Employer's establishment where they work side by side with, and under the same overall supervision as, the Employer's old employees. Fifty-two, or approximately 30 percent; of the employees now work- ing in the former Brooklyn Borough area are old employees of the Employer, who work under the same overall supervision as former Brooklyn Borough employees and, in many instances, the same imme- diate supervision. In addition, there has been considerable inter- change on a temporary basis, particularly among the physical employees such as meter readers, customer servicemen, street depart- ment employees (laborers, street mechanics, and ditching machine operators), and plant equipment and construction workers.? The facts outlined above clearly show that the employees formerly employed by Brooklyn Borough have been integrated into the Em- ployer's establishment and operations in the same manner as were the employees of Kings County Lighting Company, discussed in the Board's Decision and Direction of Election in the original proceeding herein. Except for their membership in Local 1869, the former em- ployees of Brooklyn Borough are no longer identifiable as a separate unit. Under these circumstances, and in view of the geographical contiguity of the Brooklyn Borough territory with that of the Em- ployer, we find that it is merely an extension of the Employer's operations, and that the employees formerly employed by Brooklyn Borough are accretions to the unit of employees working in or per- manently assigned to the boroughs of Brooklyn and Queens repre- sented by the Petitioner." We find no merit in the request of Local 6 This figure includes 56 clerical and 19 physical employees. 8 This figure includes 3 clerical and 48 physical employees. 7 The president of Local 1869 stated in a recent issue of that Union's publication, which statement he confirmed at the hearing herein, that "Our members are now working for the Brooklyn Union Gas Company instead of the Brooklyn Borough. They work in prac- tically every section of Brooklyn-Coney Island, Canarsie , Greenpoint, Pearl and Remsen Streets, etc. . . There has been harmony among the workers on all occasions in spite of the fact that members of both unions sit side by side and do the same work." 8 Cf., the Board's finding in its original Decision and Direction of Election that the former employees of Richmond Gas Company located on Staten Island retained their identification as a separate unit after that company was consolidated with the Employer, in view of their separate geographical location in the absence of substantial interchange, 364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1869 for a separate election among the former employees of Brooklyn Borough based on their separate bargaining history for , as we have found, they have lost their identity as a separate established unit and have become merged with the Employer 's other Brooklyn and Queens employees . Therefore, as no question exists concerning the representa- tion of former Brooklyn Borough employees , we shall dismiss the petition filed by Local 1869 herein.' However, we shall grant the Petitioner's motion and amend the description of its certified unit to specifically include therein all employees of the Employer who were formerly employed by Brooklyn Borough Gas Company.10 [The Board dismissed the petition in Case No . 2-RC-10853.] [The Board amended the certification of representatives in Cases Nos. 2-RC-9689 and 2-RC-9727 issued on April 24 , 1959, to Local 101, Utility Division , Transport Workers Union of America , AFL-CIO, to include all physical and office clerical employees of the Employer who were formerly employed by Brooklyn Borough Gas Company and who work in or are permanently assigned to the Employer 's operations in the boroughs of Brooklyn and Queens , New York.] B Continental Can Company, Inc, 127 NLRB 286 "The alternative request of Local 1869 made at the hearing and in its brief to the Board, that an election be held among all employees in the certified unit is denied because there is a contract bar to an election in such a unit, and further because Local 1S69 has not demonstrated a sufficient petitioner's showing of interest and none of the other parties has filed a petition for an election in such unit Martin-Burns Sportables, Inc. and Local 1010, Retail Employees Union of South Florida, Retail, Wholesale and Department Store Union, AFL-CIO, Petitioner. Case No. 12-RC-.510. Octo- ber 11, 1960 DECISION AND ORDER ON MOTION TO AMEND OR CLARIFY CERTIFICATION In a Decision and Direction of Election issued on June 16, 1959, the Board found that "all employees of the Employer at its retail stores in the Americana Hotel and the Fontainebleu Hotel, Miami Beach, Florida,' including selling assistant managers, salesmen, bushelmen, and cashiers, but excluding office employees, guards, pro- fessional employees, and supervisors as defined in the Act" consti- tuted an appropriate unit. On October 28, 1959, following an election and a Supplemental Decision and Direction dated October 12, 1959, in which the Local 1010, Retail Employees Union of South Florida, 1 The parties agreed to the two-store unit However , the Employer also operates stores in Palm Beach, Boca Raton , Fort Lauderdale, and Hollywood , Florida. 129 NLRB No. 39.