New England Telephone and Telegraph Co.

NEW ENGLAND TELEPHONE AND TELEGRAPH COMPANY 531 New England Telephone and Telegraph Company and Communications Workers of America, AFL-CIO, Petitioner and International Brotherhood of Electrical Workers, AFL-CIO-CLC, Petitioner. Cases 1-RC-10718 and 1-RC-10720 November 7, 1969 DECISION AND DIRECTION OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS JENKINS AND ZAGORIA Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Ramey Donovan. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statements of Procedure, Series 8, as amended, and by direction of the Regional Director for Region 1, this case was transferred to the National Labor Relations Board for decision. Thereafter, the Employer,' the Petitioners, and New England Federation of Telephone Traffic Workers, an Intervenor,' filed timely briefs. Pursuant to the provisions of Section 3(b) of the Act, as amended, the Board has delegated its powers in connection with this case to a three-member panel. The Board has reviewed the Hearing Officer's rulings made at the hearing and finds that they are free from prejudicial error. They are hereby affirmed. Upon the entire record in this case, including the briefs filed herein, the Board finds: 1. The Employer is engaged in commerce within the meaning of the Act, and it will effectuate the purposes of the Act to assert jurisdiction herein. 2. The labor organizations involved claim to represent certain employees of the Employer. 3. A question affecting commerce exists concerning the representation of employees of the Employer within the meaning of Section 9(c)(1) and Section 2(6) and (7) of the Act. The New England Telephone and Telegraph Company owns and operates a communications system in all New England States except The Employer has requested oral argument This request is hereby denied, as the record and briefs adequately present the issues and the positions of the parties 'International Brotherhood of Telephone Workers, herein called IBTW, and New England Federation of Telephone Traffic Workers, herein called the Federation, appeared and participated as Intervenors The Federation is the incumbent union and clearly has a contractual interest, and we are administratively advised that the IBTW made a sufficient showing of interest for the purpose of intervening New England Federation of Telephone Operators appeared at the hearing, but we have not been advised that it showed any interest which would allow it to participate as an intervenor, nor did it indicate any interest in appearing on the ballot Connecticut. In each of the instant petitions, the employees sought to be represented are all central office employees, clerical and staff employees, administrative employees, and dining service employees in the Employer's Traffic Department, excluding guards, professional employees, and supervisors as defined in the Act. The stipulated unit is identical to that presently represented by the incumbent Federation.3 The Traffic unit has long been covered by contracts between the Federation and the Employer, the immediately preceding one being an agreement executed April 7, 1967. Pursuant to the "Reopener" provision of that contract,4 a new agreement was executed May 7, 1968, effective April 26, 1968 to April 26, 1971. The Employer and the Federation contend that this latter contract bars the instant proceeding, while the Petitioners contend that it constituted a premature extension of the previous contract and therefore the petitions herein may be processed. In furtherance of its desire to reopen pursuant to article 42.02(a), the Federation sent notice thereof to This is referred to herein as the Traffic unit The parties stipulated as to the job titles which are encompassed within this unit 'The following are the relevant provisions of the 1967 contract Article 42 Duration of Agreement 42 01 Effective Date This agreement shall be effective at 11 59 P M on April 7, 1967 (except that wage schedule increases shall be effective as of 12 01 A M on October 23, 1966), and shall continue in full force and effect (except as suspended pursuant to Paragraph 42 02 below) until terminated pursuant to Paragraph 42 03 below 42 02 Reopeners In accordance with and subject to the following provisions, this Agreement may be reopened once as hereinafter specified, solely for the purpose of negotiating changes in Appendices A, B, C and D (Wage Schedules including Job and Town Upgrades and Trick Differentials), Overtime Rates specified in Article 14, (Payment for Overtime), Sunday rates specified in Article 15, Holiday Rates specified in Article 16 (Payment for Holidays), Premium Payments specified in Article 18, and it is agreed that no other subject shall be reopened for negotiations (a) This Agreement may be reopened by either party by written notice which is received by the other party at least 60 calendar days prior to 5 00 P M , April 25, 1968 to negotiate only the changes enumerated above Such changes, if any, which are agreed to as a result of any such negotiations shall not be effective earlier than 11 59 P M , April 25, 1968 (b) Negotiations shall commence at least 30 days after receipt of any such notice, as provided in 42 02 (a), by the other party If no agreement is reached prior to 11 59 April 25, 1968, the provisions of Articles 2, 3, 30, 31 and 32 of this Agreement (except that providing for its reinstatement, which shall be a continuing obligation) shall be suspended As of the date agreement is reached on changes, if any, under this reopener, all provisions of this Agreement shall be reinstated and such changes, if any have been agreed to by the parties, shall be incorporated in this Agreement, which shall thereafter, as modified, continue in full force and effect as provided in Paragraph 42 01 above 42 03 Termination Either party may terminate this Agreement at 12 01 A M on the later of the following two dates by notifying the other party in writing, at least 60 days prior to the date of termination (a) October 26, 1969 or (b) 18 months after the effective date of the Agreement resulting from the Agreement opener provided in Paragraph 42 02 above If no such notice of termination is given, this Agreement shall automatically continue in full force and effect after the later of these two dates subject to the right of either party to terminate this Agreement by notifying the other party in writing, at least 60 days prior to the date of termination, of its intention to terminate this Agreement 179 ;NLRB No. 92 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the Employer, which was received on February 23, 1968. Negotiations ensued, and agreement not having been reached by 11:59 p.m. April 25, 1968, the following contract provisions were suspended automatically pursuant to article 42.02(b) thereof: article 2, Deduction by Company of Union Dues; article 3, Union Bulletin Boards on Company Premises; article 30, Discipline and Discharge; article 31, Grievance Procedure; and article 32, Arbitration. As noted above, a new contract was executed May 7, 1968. The instant petitions were filed on July 29, 1969 - 89 days prior to October 26, 1969, the termination date specified in article 42.03 of the 1967 Agreement.' In determining when a petition has been timely filed, the Board has consistently sought to provide guidance as to the appropriate time to organize for and seek a change of representatives, and to secure to employees the right to change representatives at reasonable intervals. The Board is of the view that stability in labor relations is facilitated by using reasonable guides as to timeliness of petitions. To this end, we have long held6 that a new contract for a longer period signed during the term of a previously executed agreement, at a time when that prior agreement would bar a petition, can itself prevent the processing of a rival petition only for the remainder of the period when the prior contract would have been such a bar. It has been held that, where such a premature extension occurs, the proper time for the filing of a rival petition in order to promote such stability and employee protection is the 30-day period between the 90th day and the 60th day prior to the expiration date of the original contract of 3 years or less duration.' These considerations are equally applicable to the facts of this case. The 1967 contract was to terminate on October 26, 1969, or 18 months after the effective date of any new agreement pursuant to the reopener clause, in this case also October 26, 1969. The parties were free from possible interference by a rival petition during the time they were negotiating pursuant to the midterm reopening8 and no special circumstances exist which might 'We note that under either alternative of Article 42 03, quoted in footnote 4, above, the termination date would be October 26, 1969, under the circumstances of this case 'Memphis Furniture Mfg Co, 51 NLRB 1447, 1450 'Deluxe Metal Furniture Co. 121 NLRB 995, 999, 1001-02, Leonard Wholesale Meats , Inc, 136 NLRB 1000 'Cf Firestone Synthetic Rubber and Latex Company . 173 NLRB No 178 (Member Brown dissenting on the facts) justify a departure from our long-standing practice.' Accordingly, as the current contract was executed at a time when the prior contract would have been a bar, and as the instant petitions were filed during the 60- to 90-day period prior to the expiration date of that prior agreement, we find that the petitions were timely filed.'° 4. In accordance with the stipulation of the parties, we find that the following constitutes a unit appropriate for the purposes of collective bargaining: All central office employees, clerical and staff employees, administrative employees and dining service employees in the Employer's Traffic Department, excluding guards, professional employees, and supervisors as defined in the Act." [Direction of Election' z omitted from publication.] 'Cf Aerotet-General Corporation , 144 NLRB 368 '' in order to promote the stability of the bargaining relationship and to protect the right of the employees to change representatives at reasonable and predictable intervals, we find , on the facts of this case, that the current contract does not bar the petitions herein We find no merit in the contention of the Employer and the Intervenor that, although the underlying policy expressed in the Board's determinations as to the timeliness of petitions is sound , the Board's contract bar rules cannot be applied here because they were not adopted in accordance with the rule-making procedures of the Administrative Procedure Act, as they assert is required by N L R B v Wyman-Gordon Company. 394 U S 759 Cf N L R B v Grace Company, 184 F 2d 126, 129 (C A 8) "In stipulating the unit description , the parties specified the inclusion of the "job classifications set forth in Appendix A" That Appendix lists the following Central Office Employees, Group I, Junior Supervisor, Operator, Rest Room Matron, Supervisor, Group II, Central Office Clerk, Chief Clerk, Schedule Clerk, Senior Schedule Clerk Clerical and Staff Employees. Clerk, Clerical Assistant , Engineering Assistant, Facilities Clerk, Force Assistant, Force Clerk, General Clerk, Senior Clerk, Senior Facilities Clerk, Traffic Clerk Administrative Employees, Assistant Force Supervisor-Division, Chief Line Assignor, Customer Instructor, District Force Coordinator, District Personnel Visitor, Loading and Service Supervisor, PBX-TWX Instructor, Service Observer, Service Observing Summarizer, Supervising Engineering Assistant Dining Service Employees, Baker, Cafeteria Attendant, Cafeteria Supervisor, Cashier, Cook, Head Baker, Head Cook, Senior Cafeteria Attendant "In order to assure that all eligible voters may have the opportunity to be informed of the issues in the exercise of their statutory right to vote, all parties to the election should have access to a list of voters and their addresses which may be used to communicate with them Excelsior Underwear Inc. 156 NLRB 1236, N L R B v Wyman-Gordon Company, 394 U S 759 Accordingly, it is hereby directed that an election eligibility list, containing the names and addresses of all the eligible voters , must be filed by the Employer with the Regional Director for Region I within 7 days of the date of this Decision and Direction of Election The Regional Director shall make the list available to all parties to the election No extension of time to file this list shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the election whenever proper objections are filed