New England Telephone and Telegraph Co.

NEW ENGLAND TELEPHONE &TELEGRAPH COMPANY 527 New England Telephone and Telegraph Company and Communications Workers of America, AFL-CIO, Petitioner, and International Brotherhood of Electrical Workers, AFL-CIO, Petitioner, and New England Council of Engineering Associates and Right of Way Agents, Petitioner. Cases 1-RC-10719, 1-RC-10721, and I-RC-10735 November 7, 1969 DECISION AND DIRECTION OF ELECTIONS BY CHAIRMAN MCCULLOCH AND MEMBERS BROWN AND ZAGORIA Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Ramey Donovan, Hearing Officer. Following the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations and Statement 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 International Brotherhood of Telephone Workers, an Intervenor,2 filed timely briefs. 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 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 Employer' s request for oral argument is hereby denied, as the record and briefs adequately present the issues and the positions of the parties 'International Brotherhood of Telephone Workers, hereinafter referred to as the Incumbent Union, and United Automobile, Aerospace and Agricultural Implement Workers of America, herein called UAW, appeared at the hearing and participated as Intervenors Although the record before us does not reveal that either of them requested and was granted permission to intervene , it is apparent that the Incumbent Union has an interest in this matter entitling it to intervene , and we are administratively advised that UAW made a sufficient showing of interest in the existing unit to the Regional Director for this purpose The New England Telephone and Telegraph Company owns and operates a communications system in all New England States except Connecticut. The petitions herein seek elections among certain groups of employees of the Employer's Plant Department, who are presently represented in a single unit. That unit has long been covered by contracts between the International Brotherhood of Telephone Workers, and the one immediately preceding the current contract was effective December 14, 1966, terminable by either party as of October 26, 1969, or 18 months after the effective date of any agreement resulting from negotiations under a "reopener" provision in the 1966 contract.3 The agreement dated December 14, 1966, was reopened by letter dated February 2, 1968, pursuant to article 35.02. A new agreement was executed effective September 2, 1968 to September 1, 1971. The Employer and the International Brotherhood of Telephone Workers 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 35.05(a) of the agreement, the International 'The following are the relevant provisions of the 1966 contract B Plant Department Article 35 Duration 35 01 Effective Date This Agreement shall be effective at 11-59 P M on December 14, 1966 (except that wage adjustments 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 35 02 below) until terminated pursuant to Paragraph 35 04 below 35 02 Reopeners Except as provided in Paragraph 35 03 and in accordance with and subject to the following provisions, this Agreement may be reopened only as hereinafter specified , solely for the purpose of negotiating changes in Appendix I (Wage Schedules), overtime rates specified in Article 20 (Overtime Payments ), holiday rates specified in Paragraph 13 02 of Article 13 (Holidays ), 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 notice as provided in 35 02(a), by the other party If no agreement is reached prior to April 25, 1968, all provisions 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 by the parties, shall be incorporated in this Agreement which shall thereafter, as modified , continue in full force and effect as provided in Paragraph 35 01 above 35 04 Termination Either party may terminate this Agreement at 12 01 AM 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 35 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. 93 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Brotherhood of Telephone Workers and the Employer began negotiating on March 15, 1968, and met 15 times between that date and April 25, 1968. On April 26, 1968, the contract, by its terms, was suspended in the absence of agreement and the International Brotherhood of Telephone Workers called a strike. As noted above, a new contract was executed and it became effective September 2, 1968. The petition in Case 1-RC-10719 was filed July 29, 1969; the petition in Case 1-RC-10721 was filed July 29, 1969; the petition in Case 1-RC-10735 was filed August 5, 1969 - 89, 89, and 83 days, respectively prior to October 26, 1969, the termination date specified in article 35.04 of the December 14, 1966, 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 and seek a change of representatives, and to secure to employees the right to change representatives at reasonable intervals. The Board concluded that stability in labor relations would be facilitated by using reasonable guides as to timeliness of petitions. To this end, we have long held4 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' duration or less.' These considerations are equally applicable to the facts of this case. The 1966 contract was to terminate on October 26, 1969, or 18 months after the effective date of any new agreement reached pursuant to the reopener clause. The parties were free from possible interference by a rival petition during the time they were negotiating pursuant to the midterm reopening,6 and no special circumstances exist which might justify a departure from our long-standing practice.' In fact, a petition filed by the Counsel May 6, 1968, was identical to the petition now before us in Case 1-RC-10735. The Board sustained the Regional Director's dismissal of that petition on the ground that the 1966 contract continued in existence and was a bar to that proceeding. 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.' 'Memphis Furniture Mfg Co, 51 NLRB 1447, 1450 'Deluxe Metal Furniture Company, 121 NLRB 995, 999, 1001-02, Leonard Wholesale Meats , Inc, 136 NLRB 1000 'Cf Firestone Synthetic Rubber & Latex Company, 173 NLRB No 4. The Incumbent Union represents a unit of Plant Department employees described in its contract as "the non-supervisory employees of its Plant Department, scheduled Engineering employees in occupations formerly under Plant jurisdiction and the non-supervisory employees in the General Services Department in occupations formerly under Plant jusisdiction."' CWA and IBEW, the Petitioners in Cases 1-RC-10719 and 10721, seek to represent the existing unit. The Council, Petitioner in Case 1-RC-10735, contends that outside plant engineering associates and right-of-way agents are professional employees and seeks to represent them in a separate unit. The Employer agrees that such unit is appropriate; CWA does not oppose severance of professionals; and the Incumbent Union and IBEW contend these employees are not professionals and oppose their severance.10 In view of the positions of the parties as summarized above, it is apparent that the sole issue before us is the professional status of the outside plant engineering associates and right-of-way agents. If they are professionals, they are entitled to a self-determination election, inasmuch as it appears that they have not previously been afforded an opportunity to express their desire to be included in a unit with nonprofessionals and Section 9(b)(1) of the Act precludes the Board from deciding that such a combined unit is appropriate unless a majority of 178 (Member Brown dissenting on the facts) '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 mtersals, we find that the current contract does not bar the petitions herein We find no merit in the contention of the Employer and the Intervenor Incumbent Union 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-Gordan Company, 394 U S 759 Cf N L R B v Grace Company. 184 F 2d 126, 129 (C A 8) 'By stipulation, the parties agreed that this unit, excluding all other employees, would be appropriate, subject to determination of the professional status of the categories sought by the Council They also stipulated that the categories set forth in Appendix A, attached hereto, comprise that unit "IBEW contends, alternatively, that if the outside plant engineering associates and right-of-way agents are professionals, additional hearings are necessary because there are other professional employees performing similar functions to those of right-of-way agents, but the record herein does not permit a determination as to the proper scope of such a unit In this connection, it asserts also that other professional employees in the legal, accounting, and fiscal areas should be included However, IBEW does not specify which of the categories listed in footnote 8, above, might also be professionals who should be included within the unit sought, and an examination of that list does not reveal any job titles which suggest possible professional status of others within the existing unit It also appears that the two categories in issue herein are the only classifications of professional employees performing work within the Plant Department and might, if they desire, be represented as part of the Plant Department unit Accordingly, we find no merit in the IBEW's position and deny its Motion for Further Hearing Cf Douglas Aircraft Company, Inc . 157 NLRB 791, 794, Weyerhaeuser Company, 173 NLRB No 177 This does not preclude the IBEW from challenging any persons who appear to vote in the election hereinafter directed in voting group (a) who it contends are professional employees entitled to a self-determination election under the Act NEW ENGLAND TELEPHONE &TELEGRAPH COMPANY 529 the professional employees vote for inclusion therein. Based on the record before us, we conclude that these categories may be represented separately or as part of the Plant Department unit. The Plant Department is concerned with the maintenance of the telephone equipment and the installation, construction, and maintenance of telephone equipment facilities. The telephone outside plant is that physical plant between the central office and the subscriber's telephone, consisting of poles, underground conduit, manholes, interior building conduit, aerial cable, underground cable, buried and submarine cable, building cable, and line wire. The outside plant engineering associates' function may be summarized as the construction, relocation, replacement, major maintenance, and removal of all telephone outside plant, including the determination as to when action must be taken, preparing alternate plans, preparing work plans, including the procurement of permits, easements, and outside contracts necessary for the construction work. They work out of approximately 24 District Offices which the Employer operates in its 5-State area. The function of the right-of-way agent is to prepare and prosecute petitions to municipalities for grants to place telephone company plants on public ways. They conduct negotiations with public officials and owners of private property, handle complaints, search titles, and maintain records. The Employer requires that new employees have at least 2 years of formal college education, and, as communications engineering is not available in any college, the Employer provides classroom and on-the-job training for both engineering associates and right-of-way agents. They are required to know aspects of mathematics, fundamentals of electricity, and electronics, strength of materials, structures, geology, site planning, design and construction of foundations, architecture, surveying, highway engineering, mechanical drawing, English composition, public speaking, engineering economy, principles of accounting, contract preparation, and real estate fundamentals. The parties stipulated that there were 362 engineering associates and 26 right-of-way agents as of August 3, 1969. Of these, approximately 82 percent were college graduates or had education beyond high school. It is apparent that the functions and responsibilities of these engineering associates and right-of-way agents are similar, if not identical, to those of similar categories considered by the Board in Illinois Bell Telephone Company, 77 NLRB 1073. We found there that persons performing these functions were professional employees within the meaning of Section 2(12) of the Act, as amended." We find no reason to reach a contrary conclusion here. Accordingly, we find that the outside plant engineering associates and the right-of-way agents in the Employer's Plant Department may constitute a unit appropriate for the purposes of collective bargaining, and we shall direct separate elections in the following voting groups: (a) All nonsupervisory employees of the Employer's Plant Department, scheduled engineering employees in occupations formerly under Plant jurisdiction and the nonsupervisory employees in the General Services Department in occupations formerly under Plant jurisdiction, in the job classifications set forth in Appendix A, infra, but excluding outside plant engineering associates, right-of-way agents, all other professional employees, all other employees, and supervisors as defined in the Act. (b) All outside plant engineering associates and right-of-way agents in the Employer's Plant Department, excluding all other employees, and supervisors as defined in the Act. The employees in the professional voting group (b) will be asked two questions on their ballot: (1) Do you desire to be included in the same unit as other employees in the Employer's Plant Department for the purposes of collective bargaining? (2) Do you desire to be represented for the purposes of collective bargaining by New England Council of Engineering Associates and Right-of-Way Agents; or by International Brotherhood of Telephone Workers; or by Communications Workers of America, AFL-CIO; or by International Brotherhood of Electrical Workers, AFL-CIO-CLC; or by United Automobile, Aerospace & Agricultural Implement Workers of America; or by none. If a majority of the professional employees in voting group (b) vote "Yes" to the first question, indicating their wish to be included in a unit with the nonprofessional employees, they will be so included. Their votes on the second question will then be counted together with the votes of the nonprofessional voting group (a) to decide their representative for the whole unit.' 2 If, on the other hand, a majority of the professional employees in voting group (b) do not vote for the inclusion, they will not be included with the nonprofessional employees, and their votes on the second question will then be separately counted to decide whether they want any of the Unions on the ballot to represent them in a separate professional unit. There is no indication in the record that any of the Unions which seek the overall unit would be unwilling to represent the professional employees separately, if those employees vote for separate representation. However, if any Union does not desire to represent the professional employees in a separate unit even if those employees vote for such representation, that "See also Northwestern Bell Telephone Company, 79 NLRB 549, 551-553 "if the votes are pooled , they are to be tallied in the following manner Votes for the Council shall be counted as valid votes, but neither for nor against any of the other Unions on the ballot All other votes are to be accorded their face value 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union may notify the Regional Director to that effect within 10 days of the date of this Decision and Direction of Elections." Our unit determination is based in part, then, upon the results of the elections However, we now make the following findings in regard to the appropriate unit: (1) If a majority of the professional employees vote for inclusion in a unit with nonprofessional employees, we find that the following employees will constitute a unit appropriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: All nonsupervisory employees of the Employer's Plant Department, scheduled engineering employees in occupations formerly under Plant jurisdiction and the nonsupervisory employees in the General Services Department in occupations formerly under Plant jurisdiction, in the job classifications set forth in Appendix A, attached hereto, including outside plant engineering associates and right-of-way agents, but excluding all other professional employees, all other employees, and supervisors as defined in the Act. (2) If a majority of the professional. employees do not vote for inclusion in the unit with nonprofessional employees, we find that the following two groups of employees will constitute separate units appropriate for collective bargaining within the meaning of Section 9(b) of the Act: (a) All nonsupervisory employees of the Employer's Plant Department, scheduled engineering employees in occupations formerly under Plant jurisdiction and the nonsupervisory employees in the General Services Department in occupations formerly under Plant jurisdiction, in the job classifications set forth in Appendix A, infra, but excluding outside plant engineering associates, right-of-way agents, all other professional employees, all other employees, and supervisors as defined in the Act. (b) All outside plant engineering associates and right-of-way agents in the Employer's Plant Department, excluding all other employees, and supervisors as defined in the Act. [Direction of Elections' 4 omitted from publication.] "Westinghouse Electric Corporation , 116 NLRB 1545, 1548, Sonotone Corporation. 90 NLRB 1236, 1241-42 "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 elections should have access to lists 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 US 759 Accordingly, it is hereby directed that election eligibility lists 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 Elections The Regional Director shall make the lists available to all parties to the elections No extension of time to file these lists shall be granted by the Regional Director except in extraordinary circumstances Failure to comply with this requirement shall be grounds for setting aside the elections whenever proper objections are filed APPENDIX A Air Conditioning Technician Assistant Construction Planner Central Office Attendant Central Office Equipment Powerman Central Office Powerman Central Office Repairman Cleaner Clerical Wage Schedules by Location Clerks - Table 53 Clerks - Table 54 Clerks - Table 55 Clerks - Table 56 Clerks - Table 57 Construction Head Lineman Contract Work Inspector District Chief Clerk Elevator Operator Elevator Starter Engineer - Buildings Engineering Assistant Engineering Associate Equipment Installer Forewoman Garageman Garage Mechanic Head Janitor House Service Foreman House Service Mechanic Installer Dispatcher Installer - Repairman Instructor - Plant School - Engineering School Janitor Junior Engineering Assistant Junior Toll Service Assigner Lineman Local Testman Mail Truck Driver Plant Assigner P.B X (Installation or Repair) Pole Inspector Power Follow-Thur Inspector Reproduction Machine Operator Right of Way Agent Senior Reproduction Machine Operator Senior Stockman Service Head Lineman Splicer Splicer - Unassigned Splicer's Helper Staff Assistant - Craft Station A (Installation or Repair) Stockman Switchman Testman - Equipment Installation Toll Service Assigner Toll Tester Toll Testman Transmission Tester Unrated Men in Rated Crafts