Gulf Power Co.

622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD W. THE REMEDY It having been found that the Respondent Conren, Inc., d/b/a Great Scot Super Market and Respondent John B . Prechtel, d/b/a Prechtel Co., have engaged in and are engaging in certain unfair labor practices, I shall recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that Respondent Conren refused to bargain collectively and in good faith with Local 550 as the exclusive bargaining representative of its employees in the unit found appropriate herein. I shall recommend that Conren be ordered, upon request of Local 550, to bargain with Local 550. It has been found that Respondent John B. Prechtel, d/b/a Prechtel Co., has dis- charged James Fox and Jerry Unsinger to discourage membership in Local 550. I shall recommend that said Respondent offer each of them full and immediate reinstatement to his former or substantially equivalent position, without prejudice to his seniority or other rights and privileges , and make each of them whole for any loss of earnings suffered by reason of said discrimination in accordance with the formula prescribed in F. W. Woolworth Company, 90 NLRB 289, together with interest as prescribed in Isis Plumbing & Heating Co., 138 NLRB 716. Upon the basis of the foregoing findings of fact , and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Conren, Inc., and John B. Prechtel, d/b/a Prechtel Co., are employers engaged in commerce within the meaning of the Act. 2. Local 550 and the Employees Committee 50 are labor organizations within the meaning of the Act. 3. By recognizing, assisting, and giving aid and support to the Employees Com- mittee, Conren has violated Section 8(a)(2) and (1) of the Act. 4. By threatening to sell its business and to close the store early and put its employees on part time if the Union came in, Conren violated Section 8(a)(1) of the Act. 5. By refusing to bargain with Local 550 of the Act as the exclusive bargaining representative of its employees in the unit found appropriate herein Conren violated Section 8 (a) (5) of the Act. 6. By discharging employees James Fox and Jerry Unsinger to discourage their membership in Local 550, John B. Prechtel, d/b/a Prechtel Co., violated Section 8(a)(3) and (1) of the Act. 7. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of the Act. '[Recommended Order omitted from publication.] "This is the name by which the Committee, revived in December 1963, is Identified on the record. Gulf Power Company and Local Unions 1055 and 624 of the Inter- national Brotherhood of Electrical Workers (AFL-CIO). Case No. 15-CA-9556. January 5,1966 DECISION AND ORDER Upon a charge filed jointly by Local Union 1055 and 624 of the International Brotherhood of Electrical Workers (AFL-CIO), herein called the Union, the General Counsel of the National Labor Relations Board, by the Regional Director for Region 15, on January 29, 1965, issued a complaint against Gulf Power Company, herein called the Respondent, alleging that the Respondent had engaged in and was 156 NLRB No. 53. GULF POWER COMPANY 623 engaging in unfair labor practices within the meaning of Section 8(a) (5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. Copies of the charge, complaint, and notice of hearing before a Trial Examiner were duly served upon the Respondent and the Charging Party. With respect to the unfair labor practices, the complaint alleged in substance that the Union was and is the exclusive representative of certain employees of the Respondent in an appropriate unit, and that on or about June 15, 1964, and thereafter, the Respondent unlawfully refused to bargain with the Union. The Respondent's answer, filed on February 8, 1965, admits certain jurisdictional and factual allega- tions of the complaint, but denies the commission of unfair labor practices. Thereafter, on February 8, 1965, all parties to this proceeding entered into a stipulation of facts, and requested that the proceeding be transferred directly to the Board for findings of fact, conclusions of law, and decision and order. The request states that the parties have waived their rights to a hearing before a Trial Examiner and to the issuance of a Trial Examiner's decision and recommended order. The parties also agree that their stipulation and certain speci- fied documents constitute the entire record in the case. On June 29, 1965, the Board granted the parties' request to transfer the case to the Board. The General Counsel and the Respondent thereafter filed briefs. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Jenkins]. Upon the basis of the parties' stipulation, the Respondent's brief, the General Counsel's brief, and the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE COMPANY Gulf Power Company, herein referred to as the Company, is a Maine corporation with its principal office and place of business in Pensacola, Florida, and is engaged in the generation, transmission, and sale of electric power as a public utility subject to the regulations of the Florida Public Utilities Commission. During the 12 months preceding the filing of the complaint herein, on January 29, 1965, the Respondent generated, sold, and transmitted, from its facilities in the State of Florida, electric power valued in excess of $50,000 to customers located outside the State of Florida and received gross revenues in excess of $1,000,000. We find that the Employer is 624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and it will effectuate the purposes of the Act to assert jurisdic- tion in this proceeding. II. THE LABOR ORGANIZATION INVOLVED The Charging Party, Local Unions 1055 and 624 of the International Brotherhood of Electrical Workers (AFL-CIO) are labor organiza- tions within the meaning of Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES At all times during and since 1956, the Union has been the exclusive collective-bargaining representative of a majority of the Respondent's employees in an appropriate unit described as follows : Overhead line construction and maintenance, including time- keepers and material clerks; underground construction and main- tenance; electric service; substation construction and mainte- nance; communication construction and maintenance; appliance service; meter testing, installation and repair; Pensacola repair shops; Pensacola garage; warehouse section-Pensacola and Panama City stores; meter readers and cut out collectors; steam- electric generating plants-Crist Scholz and Lansing Smith; excluding all office clerical employees, professional employees, watchmen and/or guards and supervisors as defined in the Act, as amended. On or about December 27, 1962, the Respondent and the Union entered into a collective-bargaining contract, effective by its terms until August 14, 1964, and from year to year thereafter, unless either party should give notice of a desire to terminate or revise the contract. The contract contained several provisions relative to safe employment practices, most of which were embodied in article VI of the contract, entitled "Safety." Other safety provisions were embodied in an employees' handbook, prepared by the Respondent, which provided for discipline or discharge of employees who violated its requirements. On or about June 15, 1964, pursuant to the contract, the Respondent and the Union simultaneously notified each other of their desire to revise the contract. Thereafter, commencing July 7, 1964, and extending over a period of several months, the Respondent and the Union engaged in negotia- tions for contract revisions. At all times during these negotiating sessions, the Union requested the right to meet with respondent and negotiate safety rules during the 1964 terms of the agreement. At all such times the Respondent, notwithstanding the negotiated safety provisions in the old contract, refused the Union's request on the grounds that safety was the exclusive responsibility of the Respond- GULF POWER COMPANY 625 ent, and therefore not a bargainable issue. The General Counsel contends that this refusal to negotiate with the Union over safety regulations constitutes a violation of Section 8(a) (5) of the Act, as amended. The Respondent, on the other hand, contends that the promulgation of safety regulations is a managerial function not sub- ject to negotiation, and its refusal to bargain with the Union in that regard did not constitute a violation of Section 8 (a) (5). The issue thus presented is as to whether or not the promulgation of safety regulations constitutes a mandatory subject of bargaining, within the meaning of the Act, as amended. Section 8(d) defines collective bargaining as : ... the performance of the mutual obligation of the employer and the representative of the employees to meet at reasonable times and confer in good faith with respect to wages, hours, and other terms and conditions of employment... . We find that in requesting negotiations over safety rules, the Union was seeking to bargain over a subject matter which is within the mean- ing of the phrase "other terms and conditions of employment," as set forth in Section 8(d) of the Act, as amended. In reaching this con- clusion, we note that the parties herein have previously negotiated certain safety provisions in their prior agreements, indicating that each understood safety provisions to constitute a proper subject of bargaining. Moreover, we note that failure to observe the safety rules promulgated by the Employer can result in discipline or discharge of an offending employee. Our conclusion is further reinforced by statis- tics of the U.S. Department of Labor which indicate that joint par- ticipation in the formulation and administration of safety regulations by management and labor organizations has been recognized by lnan- agement and labor organizations as a proper subject of collective bargaining; especially is this true in the field of public utilities.' In all of these circumstances, we therefore find that safety provisions constitute an essential part of the employees' terms and conditions of employment, and, as such, are a mandatory subject of bargaining? i See Bulletin No. 1201 of the U . S. Department of Labor, December 1956, entitled "Col- lective Bargaining Clauses, Labor-Management Safety, Production , and Industry Stabiliza- tion Committees," which shows that of a total of 1,954 major agreements under study, covering a total of more than 7 million workers, 281 contracts, covering 1,773 ,800 work- ers, provided for joint safety committees of management and union members. In the public utility field, the study shows that of a total of 61 major agreements , covering 176,900 employees, 14 agreements, covering 61,000 employees, contained such provisions. 'See the concurring opinion of Mr. Justice Stewart in East Bay Union of Machinists, Local 190 ¢, United Steelworkers of America , AFL-CIO, et at. (Fibreboard Paper Products Corp.) v. N.L.R.B. 379 U.S. 203, 222, wherein he stated: In common parlance , the conditions of a person 's employment are most obviously the various physical dimensions of his working environment . What one ' s hours are to be, what amount of work is expected during those hours, what periods of relief are available , what safety practices are observed, would all seem conditions of one's employment . [Emphasis supplied.] 626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We find without merit the Respondent's contention that statutory provisions requiring that it exercise a high degree of care in its opera- tions render all matters pertaining to safety a prerogative of manage- ment and therefore immune from bargaining. Such laws, like the minimum wage and a variety of governmental regulations, merely establish certain minimum requirements in their respective fields as conditions of doing business and are not intended to preempt their fields of regulation to such an extent as to exclude therefrom the con- cept of collective bargaining. We further find without merit the Respondent's argument that it did not refuse to bargain because it at all times offered to discuss generally the subject of safety with the Union. The record discloses that the Respondent adopted the position during negotiations, and at the hear- ing in this case, that safety regulations were not subject to negotiation. It is well settled that an Employer violates Section 8(a) (5) when he enters into collective bargaining with a predetermined decision not to bargain. California Girl, Inc., 129 NLRB 209, 218, 219. Fetzer Television, Inc., 131 NLRB 821, 830. Accordingly, we find that the Respondent, by its refusal to discuss with the Union, upon request, a contract proposal providing for the joint negotiation of safety rules, violated Section 8 (a) (5) and (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activites of the Respondent set forth in section III, above, occurring in connection with its operations as described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices within the meaning of Section 8 (a) (5) and - (1) of the Act, we shall order that it cease and desist therefrom and, upon request, bar- gain collectively with the Union as the exclusive representative of all employees in the appropriate unit with respect to wages, hours, and other conditions of employment, including safety, and, if an understanding is reached, embody such understanding in a signed agreement. CONCLUSIONS OF LAW 1. Local Unions 1055 and 624 of the International Brotherhood of Electrical Workers (AFL-CIO) are labor organizations as defined in Section 2 (5) of the Act. GULF POWER COMPANY 627 2. All employees in overhead line construction and maintenance, including timekeepers and material clerks; underground construction and maintenance; electric service; substation construction and main- tenance; communication construction and maintenance; appliance service; meter testing, installation, and repair; Pensacola repair shops ; Pensacola garage; warehouse section, Pensacola and Panama City stores; meter readers and cutout collectors; steam electric generating plants, Crist Scholz and Lansing Smith; excluding all office clerical employees, professional employees, watchmen and/or guards, and supervisors as defined in the Act, as amended, constitute a unit appro- priate for the purpose of collective bargaining within the meaning of Section 9 (a) of the Act. 3. By refusing, at all times during or after July 7, 1964, to bargain collectively with the above-named labor organizations as the exclusive collective-bargaining representative of all the employees in the above- described unit, by refusing to discuss and bargain with respect to safe work practices and/or safety rules with them, upon request, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a) (5) and (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. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Gulf Power Company, Pensacola, Florida, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Refusing to bargain collectively with Local Union 1055 and 624 of the International Brotherhood of Electrical Workers (AFL- CIO) as the exclusive representative of all its employees in the follow- ing appropriate unit : All employees engaged in overhead line con- struction and maintenance, including timekeepers and material clerks; underground construction and maintenance; electric service; substa- tion construction and maintenance; communication construction and maintenance; appliance service; meter testing, installation, and repair; Pensacola repair shops; Pensacola garage; warehouse section, Pensa- cola and Panama City stores; meter readers and cutoff collectors; steam electric generating plants, Crist Scholz and Lansing Smith; excluding all office clerical employees, professional employees, watch- men and/or guards, and supervisors as defined in the Act, as amended. 217-919-66-vol. 156-41 628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Refusing to bargain with the aforesaid labor organizations concerning safe work practices and/or safety rules. 2. Take the following affirmative action which the Board finds will effectuate the purposes of the Act : (a) Upon request bargain collectively with the above-named Unions as the exclusive representative of all employees in the appropriate unit with respect to safe work practices and/or safety rules, and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant in Pensacola, Florida, copies of the attached notice marked "Appendix." 3 Copies of said notice, to be furnished by the Regional Director for Region 15, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respond- ent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to its employees are customarily posted. Reason- able steps shall be taken by the Respondent to inusre that said notices are not altered, defaced, or covered by any other material. (c) Notify the Regional Director for Region 15, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith. s In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "a Decision and Order" the words "a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : WE WILL NOT refuse to bargain collectively with Local Unions 1055 and 624 of The International Brotherhood of Electrical Workers (AFL-CIO), as the exclusive representative of all our employees in the bargaining unit described below. WE WILL NOT refuse to bargain with the above labor organiza- tions, by refusing to discuss and bargain with them as to safe work practices and/or safety rules. WE WILL bargain in good faith, upon request, with the above- mentioned Unions as the exclusive representative of all our employees in the bargaining unit described below with respect to rates of pay, wages, hours of employment, and other conditions INT'L B'HOOD OF ELECTRICAL WORKERS, LOCAL 480 629 of employment, including safe work practices and/or safety rules,, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: All employees employed in overhead line construction and maintenance, including timekeepers and material clerks; underground construction and maintenance; electric service; substation construction and maintenance; communication construction and maintenance; appliance service; meter test- ing, installation, and repair; Pensacola repair shops; Pen- sacola garage; warehouse section, Pensacola and Panama City stores; meter readers and cutout collectors; steam elec- tric generating plants, Crist Scholz and Lansing Smith; excluding all office clerical employees, professional employ- ees, watchmen and/or guards, and supervisors as defined in the Act, as amended. GULF POWER COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana., Telephone No. 527-6361, if they have any question concerning this notice or compliance with its provisions. International Brotherhood of Electrical Workers, Local 480 and Vickers Incorporated, Division of Sperry Rand Corporation. Case No. 15-CD-54. January 5, 1966 DECISION AND DETERMINATION OF DISPUTE This is a proceeding pursuant to Section 10(k) of the National Labor Relations Act, as amended, following a charge-filed by Vickers Incorporated, Division of Sperry Rand Corporation, herein called Employer, alleging that International Brotherhood of. Electrical` Workers, Local 480, herein called Local_ 480. or IBEW, bad violated Section 8(b) (4) (D) of the Act. Pursuant to notice, a hearing was held before Hearing Officer Fallon W. Bentz on July 6, 1965., The Employer, Local 480, and International Union of Electrical, Radio and Machine Workers, AFL-CIO, Local No. 792, herein called Local 156 NLRB No. 50.