Public Service Co. of New Hampshire

350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Public Service Company of New Hampshire , Employ. er-Petitioner and Local 1837, International Broth- erhood of Electrical Workers, AFL-CIO.' Case 1- RM-783 May 14, 1971 DECISION AND ORDER BY CHAIRMAN MILLER AND MEMBERS BROWN AND JENKINS Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Thomas J. Flynn. Fol- lowing the hearing and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regula- tions 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. Briefs have been filed by the Employer and the Union. Pursuant to the provisions of Section 3(b) of the Act, 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 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 Union is a labor organization within the meaning of the Act and claims to represent certain employees of the Employer. 3. No question affecting commerce exists concerning the representation of certain employees of the Em- ployer within the meaning of Section 9(c)(1) and Sec- tion 2(6) and (7) of the Act. The Employer is a public utility company operating in the State of New Hampshire. Its principal function is the generation and distribution of electric power. The Company is organized geographically into six divisions and the divisions, in turn, are divided into operational districts each of which may encompass a number of towns and cities. Prior to April 1, 1970, the seven named districts in the Western Division were Peter- borough, Jaffrey, Keene, Winchester, Hillsboro, New- port, and Contoocook. The current collective- bargaining agreement covered units in the Western Division and other divisions. In the Western Division the contract applies to employees in certain classifica- tions in the Keene, Peterborough, Winchester, and ' Referred to herein as the Union. Hillsboro Districts.' Employees in the Jaffrey, New- port, and Contoocook Districts were not represented under the contract. The "Monadnock District," in which the Employer seeks an election, resulted from an administrative de- termination that the Jaffrey District was inadequate to service customer needs' and should be combined with Peterborough. The "new" Monadnock District con- sists of all the towns and equipment previously in- cluded in the Peterborough District and the towns of Jaffrey and Rindge from the old Jaffrey District. While the towns of Troy and Fitzwilliam, formerly in the Jaffrey District, were transferred to the Keene District for servicing, all Jaffrey operational equipment, em- ployees, and inventory have been transferred to the Monadnock District headquarters. This headquarters is located in the same building as the old Peterborough District. The record reflects that employed in the Monadnock District are five employees from the Peter- borough District who were represented under the exist- ing contract, and that five of the unrepresented em- ployees transferred from Jaffrey are also in classifications covered by the contract.4 The Employer's position is that prior to April 1, 1970, Peterborough by itself was an appropriate bar- gaining unit and that the 12 employees at Monadnock in the classifications covered by the petition constitute an appropriate unit as the Monadnock District is a completely new operating unit different in character and function from the previous Peterborough and Jaff- rey Districts. The Union contends that the current col- lective-bargaining agreement serves as a contract bar to the petition, or, if the contract is not deemed a bar, the unit sought by the Employer (Peterborough/Monad- nock) is inappropriate as bargaining history indicates the parties considered Keene, Winchester, and Peter- borough as one unit. Our initial consideration is directed to the Em- ployer's contention that the Monadnock District is an entirely new operation in character and function from either the Peterborough or Jaffrey Districts, and thus a new and appropriate unit.' We conclude that the The current contract was entered into July 27, 1969, and is in effect until June 1, 1971. Employees in the Keene, Winchester , and Peterborough Districts are represented as a result of contractual arrangements with the Union's predecessor dating back into the 1940's. The Union's predecessor was certified by the Board in 1966 as the bargaining representative for employees in the Hillsboro District. Jaffrey is 6 miles from Peterborough. The Union presented no evidence to refute the Employer's contention that the consolidation of the Jaffrey District with Peterborough was undertaken for legitimate business purposes. The Monadnock District also employs a meterman reader , G. Hart, who was a meter reader I at Jaffrey, and a meter reader II, R. Stratton, who was a meter reader I at Peterborough . None of these classifications is cov- ered by the contract for Peterborough, although they are covered in the Keene and Hillsboro Districts of the Western Division . In its petition the Employer seeks to include these classifications in the requested unit. For the purpose of this Decision we are assuming, as contended by the Employer, that the Peterborough District was in itself a separate and appro- 190 NLRB No. 68 PUBLIC SERVICE COMPANY OF NEW HAMPSHIRE 351 record does not support this contention. The Em- ployer's purpose in integrating part of the geographical area of the former Jaffrey District (and all of its em- ployees) with the area, employees, and equipment of the Peterborough District was to improve service to its customers. Assuming, as the Employer asserts, that the change permitted the Employer to more effectively uti- lize its manpower and resources by reducing the need for and use of outside contractors for certain construc- tion jobs, by providing greater flexibility in the use of line crews, and by allowing more effective and economical use of equipment and storage facilities, and even though the change might require linemen and appliance servicemen to familiarize themselves with new geographical territories and some different equip- ment and circuitry-the work performed and the ser- vices rendered to the consumers was essentially the same as prior to the forming of the Monadnock Dis- trict. In effect, what transpired was an expansion of the geographic responsibilities of the Peterborough Dis- trict with the concurrent expansion of its staff to pro- vide and improve services to the customers of the dis- trict. Though a new name was imposed on the district, the headquarters building and facilities remained the same and the nature of the work was unchanged even though the size of the unit expanded. As the employees in the Monadnock District have the same job classifications, skills, location, and work- ing conditions' as the employees of Peterborough had, we find that the addition of the employees of the former Jaffrey District to the unit previously called the Peter- borough District was an accretion to an existing unit. Furthermore, as there is a valid existing contract under which the Union provides representation for certain classifications of employees located at Monadnock/ Peterborough, we shall dismiss the petition.' ORDER It is hereby ordered that the petition filed herein be, and it hereby is, dismissed. CHAIRMAN MILLER, dissenting: The facts are essentially as stated in the majority opinion. The Employer combined its unrepresented Jaffrey operation, consisting of six employees, with its represented Peterborough operation, consisting of six prate unit under the terms of the existing collective -bargaining agreement, rather than, as maintained by the Union, a part of a unit consisting of the Keene, Winchester, and Peterborough Districts 6 We find it immaterial to our conclusions that the starting time for employees at Monadnock differs, at the employees' request, from the start- ing time previously in effect at Peterborough ' In light of our conclusions we find it unnecessary to determine whether the appropriate unit under the contract embraces the Monadnock District alone or whether the Keene and Winchester Districts are also within the same unit, fn 5, supra other employees.' Though the general nature of the employees' work remained the same, the change re- quired linemen and appliance servicemen to familiarize themselves with new geographical territories, as well as with different equipment and circuitry. An addition to the Peterborough building is being constructed to house some of the Jaffrey equipment. Except for the fact that the merged operation, now called the Monad- nock District, happens to be at Peterborough, I see no more warrant for holding the five unrepresented em- ployees an accretion to the IBEW unit than for finding the five employees in the IBEW unit an accretion to the unrepresented group. In one case decided in 1959, Bowman Dairy Co., 9 the Board applied the tests of General Extrusion to a con- solidated operation, holding an existing contract to be a bar even though the number of employees in the contract unit was exceeded by the number added through the consolidation. The opinion indicated that the basis for so holding was that the requisite General Extrusion percentages of employees and classifications had been met as applied to the unit as it existed prior to the consolidation and compared to the postconsoli- dation unit. The Bowman case does not seem to me to have given proper recognition to the interests of the added employees, and its holding has not been followed in subsequent cases, at least where the added employees have been represented by another labor organization." Nor do I believe it should be followed where the moved employees are at least as numerous as the employees they join, and have in the past been unrepresented. The right to refrain from union activities, like the right to engage in them, is expressly protected by Section 7 of the statute, and is entitled to equal recognition. The fact that five of the employees have, in the past, been repre- sented by IBEW seems to me insufficient reason to deny freedom of choice to at least as many equally tenured employees whom the Employer, for economic reasons, has chosen to move to Peterborough. I believe the existing IBEW unit has undergone a sufficient change in character that the purposes of the Act would best be served by conducting an election." Accordingly, I dissent from my colleagues' refusal to conduct one. The sixth employee at Peterborough (the meter reader) was not in- cluded in the unit 123 NLRB 707 ° See e g , General Electric Co, 170 NLRB No 153, Panda Terminals, Inc, 161 NLRB 1215, 1222-23 The employees in Bowman had also been represented by another labor organization " In view of the ambiguous nature of the IBEW collective-bargaining agreements, which indicate at some points that Peterborough, Keene, Win- chester, and Hillsboro are considered separate "units" or "districts," and the fact that one category, meter reader, is included at some locations but not at others, I find insufficient evidence to support the Union's contention that the four locations have been merged into a single unit I find that the Peterborough location named in the Employer's petition constitutes a sepa- rate appropriate unit