Southern Counties Gas Co.

SOUTHERN COUNTIES GAS COMPANY Southern Counties Gas Company of California and International Chemical Workers Union, Locals Nos. 47, 53, 58, 66, 78, 224, 350, and 404. Case 21-CA-7917 January 8, 1969 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND ZAGORIA On September 12,- 1968, Trial Examiner Martin S. Bennett issued his Decision in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative- action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions and a supporting brief and the General Counsel filed an answering brief.' Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The-Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommendations of .the Trial Examiner .2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and hereby orders that the Respondent, Southern Counties Gas Company of California, Los Angeles, California, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order. 'The Respondent's request for oral argument is denied , as the record, including the exceptions and briefs , adequately presents the issues and the positions of the parties. 'In addition to the cases cited by the Trial Examiner see the Board's recent decision in Prudential Insurance Company , 173 NLRB No. 117. In adopting the Trial Examiner's Decision, Member Zagoria relies, as in Prudential Insurance Company , supra, only on the fact that the relevance of the requested information for collective-bargaining purposes has been clearly established See in this connection his dissent in Standard 09, Company of California. 166 NLRB No. 45. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE MARTIN S. BENNETT, Trial Examiner. This matter was heard at Los Angeles, California, on July 9, 1968. The 19 complaint, issued March 25, 1968, later amended, and based upon a charge filed January 24, 1968, by International Chemical Workers Union, Locals Nos. 47, 53, 58, 66, 78, 224, 350, and 404, herein called the Union, alleges that Respondent, Southern Counties Gas Company of California, had engaged in unfair-labor practices within the meaning of Section 8(a)(5) and, (1) of the Act. Able briefs have been submitted by the General Counsel and Respondent.' Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Southern Counties Gas Company of California is a major public utility based in Los Angeles which supplies natural gas service in Southern California. It annually enjoys a gross volume of business in excess of $250,000 and purchases and receives goods of substantial value directly from outside the State of, California. Respondent annually performs services valued in excess of $50,000 for California business concerns which in turn annually purchase and receive goods valued in excess of $50,000 directly from points outside that State. I find that the operations of Respondent affect commerce within the meaning of Section 2(6) and (7) of the Act. IL THE LABOR ORGANIZATIONS INVOLVED International Chemical Union, Locals Nos. 47, 53, 58, 66, 78, 224, 350, and 404 are labor organizations within the meaning of Section 2(5) of the Act., III. THE UNFAIR LABOR PRACTICES A. Introduction; the Issue The Union was certified in 1945 as the representative of certain employees of Respondent and has enjoyed recognition since that date. The sole issue in this case is whether Respondent, by refusing on and after October 30, 1967, to give the Union a list of the names and addresses of unit employees represented by the Union, violated Section 8(a)(5) and (1) of the Act. The names as such, it may be noted, are made public quarterly in seniority lists promulgated by Respondent, but without any corresponding addresses. B. Appropriate Unit and Majority Representation Therein The parties agree and I find that the regular employees of Respondent in classes and classifications working in the designated Divisions or Departments set forth in Article I and Appendix A of a collective-bargaining agreement between the Union and Respondent dated April 1, 1968, excluding all other employees, constitute a' unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. I further find that at all times since April 1, 1967, the Union has been and now is the representative of the employees in the above-described unit within the meaning of Section 9(a) of the Act. 'A joint motion to correct certain errors in the transcript is granted and a stipulation dated July 12, 1968, is hereby received in evidence 174 NLRB No. 11 20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD C. Collective Bargaining History Of Respondent's 2600 employees, approximately 1770 are in the unit represented by the Union and are based in five counties of Southern California. Union security has been an issue in negotiations over the years with- the Union unable to obtain such a clause in bargaining. Respondent has rejected such demands on the premise that the Union should sell employees on the advantages of organization. In lieu thereof, the Union has attempted unsuccessfully on several occasions over the years to obtain the addresses of those in the unit. This request was predicated upon the need to use this information for organizational purposes. Respondent has resisted this on the ground that it would invade the right to privacy of its employees. On December 22, 1966, the Union reopened its contract and submitted some contract proposals, including one for the names and addresses of employees. This topic was discussed at a meeting held on March 2, 1967, and there is some conflict. International Representative D. E. Stutts of,the Union testified that he told Vice President Ludlow Shonnard of Respondent that this information was needed for organizational purposes because the contract had no union security clause and, further, that this would enable the Union to contact all employees in the unit regarding the negotiation of contracts and the handling of grievances. He was corroborated herein by Barry Waldrep, president-of Local Union 78. Shonnard testified that the request was predicated solely upon its use for organizational purposes and that Respondent stated that it might be able to furnish such a list after the first of the year. He also alluded to the violation of the right to privacy. No agreement was reached on this point. A contract was ultimately signed for the period from April 1, 1967, through March 31, 1968. On October 10, a so-called Interim meeting was held pursuant to the above contract. Stutts testified that the respective positions were unchanged from the March 2 meeting. Director of Personnel Howard Everett testified that Stutts made a general claim that this information was necessary to administer the contract. Turning to the crucial October 30, 1967, date relied upon herein by the General Counsel, the Union wrote to Respondent on that date as follows in support of its request for this data. International Chemical Workers Union, Locals Nos. 47, 53, 58, 66, 78, 224, 350, and 404 hereby request the names and addresses of all employees of the Company who are in the bargaining unit of the union. The Union being furnished such list is very relevant to collective bargaining with the Company and to the administration of the present collective bargaining Agreements. The necessity of the Union having the names and addresses of all employees should be clear to the Company because of the large area the employees live and work in, fact that there is no Union security clause in the Agreement and percentage of membership is low,- yet Union must represent all employees in unit regardless of membership. We would appreciate receiving such lists at the earliest possible time in order to communicate with such employees prior to drawing up firm proposals for next contract negotiations. Several days later, Everett arranged a meeting with Stutts. According to Stutts, he said that the Union wanted this information for many reasons. The contract lacked a union-security clause and membership in the Union was low, being slightly in excess of 60 percent. The Union argued that under the Act it had- the obligation to represent all in the unit and the thinking of all was desirable concerning the handling of grievances, arbitrations, negotiations, and strikes. Stutts continued that there was no effective way to communicate with nonmembers and that handbilling was ineffective because they were scattered over too large an area. He pointed to the lack of stewards under the contract. Stutts then referred to a recent decision by the Board in Standard Oil Company of California, 166 NLRB No. 45, claiming that this-supported the right of the Union to such information. Everett replied that Respondent was not legally obligated to provide the list to the Union, that this again would violate the right of employees to privacy and indicated ignorance of the Standard Oil case. He asked Stutts if there was any other- way the U'nion's,-re-quest could be met and Stutts replied in the negative. A week or two later, Respondent, while resisting the disclosure of addresses, offered to send out via company mail in behalf of the Union, a limited number of mailings to employees soliciting their views on negotiations in grievances at no cost to the Union. It also offered to use the United States mail if the Union -assumed postage costs. Stutts refused, pointing to the- limit on the number of mailings' and claiming that the Union would have no way of verifying the mailings to nonunion employees. On November 21, 1967, the Union renewed its request and, on November 28, Respondent replied as follows: In line with your recent discussions with Mr. Everett regarding this subject, as well as the discussions during negotiations for our April 1, 1967 Working Conditions Agreement, the Company is not willing to provide the Union with the names and addresses of all Company employees represented by the Union. One of the principal reasons for our decision is' our concern for the right of privacy desired by many of our employees. However, in consideration of the points made by the Union in our recent discussions regarding the large area in which employees live and work, we renew our offer as follows: The Company -will deliver or mail (using stamps provided by the Union) - to all employees represented by the Union, a reasonable number of letters relating to the Union's administration of the present collective bargaining , agreement and negotiations for a 1968 Working Conditions 'Agreement. - A similar request and rejection occurred on January 16 and 23, 1968. The Union made no proposals regarding names and addresses in negotiations for- the 1968-69 contract which is in effect through March 31, 1969, taking the position that the issue was then pending before the Board, as was the case. D. The Standard Oil Decision Some - portions of the more recent negotiations were obviously tailored by the Union to this decision involving the same issue. Standard Oil Company of California, 166 NLRB No. 45. Respondent, in its brief, was well aware of this case and has argued extensively that the cases are distinguishable; this alleged distinction will be treated hereinafter. Be that as it may, this case, recently decided, goes quite far. Standard Oil Company of California v. N.L.R.B., 399 F.2d 639 (C.A. 9). - SOUTHERN COUNTIES GAS COMPANY The Board had held that the address list was relevant to the Union's performance of its responsibilities in collective bargaining and contract administration, and found that refusal of this information was violative of Section 8(a)(5) and (1) of the Act. The Court pointed out that the Union was obligated to fairly represent the interests of all employees, the nonmembers amounting to some 700 of the 1500 in the unit. "To perform this statutory duty adequately, it was necessary that the Union be able to communicate with those whom it represented, i.e., with all 1500 of the employees in the unit. The Company's duty to bargain collectively with the Union as the representative of 1500 employees was not fulfilled by bargaining with the Union if the Union had no means of communication with some 700 of the 1500 employees represented by it, and it was readily in the power of the Company to make it possible for the Union to communicate with the members of the unit who were not members of the Union." This indeed is strong language,- particularly so -where the Union's request in the Standard Oil decision had been predicated solely upon its wish to counter. employer propaganda. The Court concluded, nevertheless, that there could have been no, question in the mind of the Employer that the Union desired the data for collective bargaining. The Court bluntly struck down the Employer's contention that it had no contractual obligation to supply this data and added that there was no question of the general obligation of an employer to provide information needed by .the bargaining agent for the proper performance of its duties. N.L.R.B. v. Acme-Industrial Co., 385 U.S. 432. The right to privacy, raised herein by Respondent, is implicit in this area, yet it apparently did not trouble the Court. In brief then, Respondent can offer little defense herein, in view-of the foregoing language, unless it can distinguish the cases and this it has attempted to do. E. Alleged Distinguishing Factors Respondent urges that the Union has ample opportunity to contact and communicate with employees and therefore has no need for these' names and addresses. It points to its offer to make mailings via company mail at no cost to the Union or via U.S. mail, for postage costs only.2 The only restriction imposed by Respondent was that the material not be derogatory to it. Respondent points further to an offer by it on January 23, 1968, to include with these mailings a form by which the employee could send his name and address to the Union if he so desired. While not attributing bad faith to Respondent, the Union objected to the limitations on the number of mailings and pleaded its -inability to know whether nonmembers would actually receive these mailings. The Union also had in mind, although not expressed, that it contemplated different mailings to members and nonmembers. Respondent directs attention to the existence of bulletin boards, maintained at company expense,-where material could be posted, including one bulletin board - where permission was requested and granted to leave union applications. While Respondent notes that in Standard Oil the expense of the bulletin board was borne by the Union, this is manifestly a distinction of no substance; the fact is 'This case was tried on the premise that all employees who had not signed dues checkoff authorizations were not union members. 21 that they existed in both cases. The alleged opportunity for employees to engage in organizational activities at company social affairs and at canteen facilities provided - by Respondent demonstrates little; the simple answer is that the identities of union and nonunion members perforce could not be well known in an operation of this size. Respondent attempts to distinguish the dispersion of the employees in the two cases. The fact is that these employees worked in five counties of Southern California and, in Standard Oil, the employees worked in five or six counties of Northern California. I see little difference and the mileages are not deemed controlling. If all employees of an employer were housed in a designated area of the community, an argument might be made that door-to-door solicitation would suffice. Indeed, in the instant case, unlike Standard Oil, there were no shop stewards. Yet the Board, with subsequent court approval, saw nothing to detract from the basic thrust of the union position, holding that anything short of names- and addresses prevented effective communication with the beneficiaries of the Union's statutory obligation. The General Counsel in turn has pointed to the fact that approximately 53 percent of those in the bargaining unit are in the field substantially all of their working time. This includes, the local union presidents who represent their locals in dealing with Respondent, there being no stewards, although almost all employees report to .their base at the start and close of the working day. The General Counsel also urges that Respondent, during annual contract negotiations, makes, reports to all employees via a house organ concerning the progress of negotiations, this including the respective proposals and the ultimate contract agreed to. It is not contended that these reports are other than factual. The fact is, however, that this broad base of contact is not available to the Union in its statutory obligation to represent all those in the unit. The General Counsel also argues persuasively with respect to Respondent's offer-to make limited mailings of material not derogatory to Respondent that this perforce implies inspection by Respondent of the matter. He states, with logic, that there might be times when the Union would prefer that Respondent not be privy to the nature of these solicitations. Further, Respondent, rather than the Union, would in reality decide the number of mailings to be made. Respondent has contended that the Union waived the right to this data by bargaining on the matter and obtaining a contract silent in this 'respect. This was disposed of in Standard Oil where the Court pointed out that it was not controlling that the employer had not contracted to furnish the information, , because the employer had a "general obligation" to furnish information needed by the bargaining representative for the proper performance of its duties. There are several other factors raised by Respondent, but they are minor in nature and do little to counter the strong thrust of the Standard Oil decision. I find, therefore, that there are not factors present herein which are sufficient to distinguish .the instant case from the rationale of Standard Oil.' - 'While it is true that Respondent did not propagandize new hires concerning the lack of need for union representation, unlike Standard Od, and indeed did cooperate with the Union on acquainting new hires with the presence and function of the Union, I believe that this too must fall in the face of that decision. 22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD F. Refusal To Bargain In- view of the foregoing considerations, I find, as alleged by the General Counsel, that by refusing on and after October 30, 1967, to furnish the Union with the names and -addresses of those in the unit it represented, Respondent has refused to bargain and has engaged -in unfair labor practices within the meaning of Section 8(a)(5) and, derivatively, Section 8(a)(1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, and occurring in connection with its operations 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 thereof. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and that it take certain affirmative action designed to effectuate the 'policies of the Act. I shall recommend that Respondent be ordered to forthwith furnish the, Union with the information requested by it and that it do so thereafter, upon request, at reasonable intervals. - Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Southern Counties Gas Company of California is an employer within the iiieanmg of Section 2(2) of the Act. 2. International Chemical Workers Union, Locals Nos. 47, 53, 58, 66, 78, 224, 350, and 404 are labor organizations within the meaning of Section 2(5) of the Act. 3. The regular employees of Respondent in classes and classifications working in the designated Divisions or Departments set forth in Article I and Appendix A of a collective-bargaining agreement between the Union and Respondent dated April 1, 1968, excluding all other employees, constitute a unit appropriate, for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 4. International Chemical Workers Union, Locals Nos. 47, 53, 58, 66, 78,- 224, 350, and 404 has been since April 1, 1967, and now is, the exclusive representative of the employees in the above-described appropriate unit within the meaning of Section 9(a) of the Act 5. By refusing on and after October 30, 1967, to supply the Union with the names and addresses of employees in the above, unit, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the foregoing conduct, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. - 7. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6)' and (7) of the Act. RECOMMENDED ORDER On the basis of the foregoing findings of fact - and conclusions of law, it is recommended that Respondent, Southern Counties Gas Company of California, Los Angeles, California, its officers, agents, successors' and assigns, shall- 1. Cease and desist from refusing to furnish International Chemical Workers Union, Locals Nos 47, 53, 58, 66, 78, 224, 350, and 404 the names and addresses of all employees in the unit it represents 2. Take the following affirmative action which is deemed necessary to effectuate the policies of the Act: (a) Upon request, and at reasonable intervals, furnish the above-named labor organization with the names and addresses of all employees in the bargaining unit it represents. (b) Post at its installations in California where the Union is the bargaining representative, copies of the attached notice marked Appendix.' Copies of said notice on forms provided by the Regional Director for Region 21 shall, after being duly signed by Respondent, be posted by it immediately upon receipt thereof and maintained for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices'to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced or covered by any other material. (c) Notify the Regional Director' for Region 21, in writing, within 20 days from the date of receipt of this Decision, what steps it has taken to comply herewith.' 'In the event this Recommended Order be adopted by the Board, the words "Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words " a Decision and Order." 'In the event this Recommended Order be adopted by the Board, this provision shall be modified to read. "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TD ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner 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 now, and at reasonable intervals hereafter upon request, furnish International Chemical Workers Union, Locals Nos. 47, 53, 58, 66, 78, 224, 350, and 404, with the' names and addresses of all employees in the bargaining unit it represents. Said bargaining unit is: Regular, employees in classes and classifications working in the designated Divisions or Departments set forth in _Article I and Appendix A of a SOUTHERN COUNTIES GAS COMPANY 23 collective-bargaining agreement between the Union This notice must remain posted for 60 consecutive days and us dated April 1 , 1968. from the date of posting, and must not be altered, defaced, or covered by any other material. i Dated By SOUTHERN COUNTIES GAS COMPANY OF CALIFORNIA If employees have any question concerning this notice (Employer) or compliance with its provisions , they may communicate directly with the Board' s Regional Office, 849 South Broadway, Los Angeles, California, 90014, Telephone (Representative ) (Title ) 688-5229.