Elizabethtown Water Co.

DECISIONS OF NATIONAL LABOR RELATIONS BOARD Elizabethtown Water Company and local 423, Utility Workers Union of America, AFLCIO. Case 22- CA-7607 January 19, 1978 DECISION AND ORDER BY CHAIRMAN FANNING AND MEMBERS JENKINS AND MURPHY Upon a charge filed on April 19, 1977, by Local 423, Utility Workers Union of America, AFL-CIO (herein the Union), and duly served on Elizabeth- town Water Company (herein Respondent), the General Counsel of the National Labor Relations Board, by the Regional Director for Region 22, on June 1, 1977, issued and served on the parties a complaint and notice of hearing alleging that Re- spondent had engaged in and was engaging in unfair labor practices affecting commerce within the mean- ing of Section 8(a)(5) and (1) and Section 2(6) and (7) of the National Labor Relations Act, as amended. The General Counsel alleged, inter alia, that since on or about December 15, 1976, Respondent has refused and continues to refuse to negotiate and discuss with the Union matters with respect to the Employees' Retirement Plan (herein the Plan) and related matters. On June 9, 1977, Respondent filed its answer to the complaint denying the commission of any unfair labor practice. On August 12, 1977, the parties executed a stipula- tion wherein they agreed that certain documents (including the charge, complaint, notice of hearing, answer, and stipulation) shall constitute the entire record herein, expressly waived a hearing before an Administrative Law Judge and the issuance of an Administrative Law Judge's decision, and submitted the case directly to the National Labor Relations Board for findings of fact, conclusions of law, and an order based upon the record. By order dated September 1, 1977, the Board approved the stipulation of the parties, ordered the proceeding transferred to the Board, and granted permission and time for the filing of briefs. Thereaf- ter, the General Counsel, the Union, and Respon- dent filed 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 authority in this proceeding to a three-member panel. On the basis of the stipulation, the briefs, and the entire record in this proceeding, the Board makes the following findings: i Sioux Valley Empire Electric Association, 122 NLRB 92 (1958). 1. THE BUSINESS OF RESPONDENT Respondent is a New Jersey corporation engaged in the business of providing and performing private water distribution services and related services from its principal office and place of business at I Elizabethtown Plaza, Elizabeth, New Jersey 07201, and its facilities at the Netherwood Service Center, Plainfield, New Jersey; Somerville Pumping Station, Somerville, New Jersey; Raritan Millstone Filter Plant, Bound Brook, New Jersey; and Princeton Service Center, Princeton, New Jersey. During the past year Respondent caused to be purchased, transferred, and delivered to it water pipe, chemicals, and other goods and materials valued in excess of $50,000, of which goods and materials valued in excess of $50,000 were transported to the above- named facilities in interstate commerce directly from States of the United States other than the State of New Jersey. The parties stipulated, and we find, that Respon- dent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act, and we find that it will effectuate the purposes of the Act to assert jurisdiction herein.' II1. THE LABOR ORGANIZATION INVOLVED The parties stipulated, and we find, that Local 423, Utility Workers Union of America, AFL-CIO, is, and at all material times has been, a labor organiza- tion within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Facts Respondent and the Union entered into a collec- tive-bargaining agreement (herein the Agreement) effective February 1, 1976, for employees in the following job classifications: 2 Sub Foreman, Instrument Repair, Serviceman, Sr. Utility Man, Utility Cl. I, Utility C1. II, Utility Cl. III, Plant Helper, Equipment Oper., Casual Laborer, Meter Reader, Meter Repairman, Meter Setter, Meter Reader/Spec., Accounts, Meter Reader/Setter, Auto Mechanic, Senior Storekeep- er, Storekeeper, Maint. Sub-Foreman, Maint. Mech. I, Maint. Mech.-Welder, Maint. Mech. II, Diesel Pump Operator, Elec. Pump Operator, Filter Pump Operator, High Lift Operator, Low Lift Operator, Relief Operator, Sta. Operator, Lab Tech., Messenger. 2 Job classifications are as listed in the stipulation and in schedules A and B of the Aareement. 234 NLRB No. 68 318 ELIZABETHTOWN WATER CO. Article I of the Agreement excludes from the unit "office and supervisory employees." Article XXVI of the Agreement provides: 26.1 This agreement shall become effective as of February 1, 1976, and shall remain in full force and effect until Midnight, January 31, 1978, and from year to year thereafter unless either party hereto shall notify the other at least sixty (60) days prior to the expiration date or extension thereof that it desires to negotiate a new Agree- ment. Article XXV of the Agreement provides: 25.1 Employees will be granted retirement benefits in accordance with a formal retirement plan known as the "Employee's Retirement Plan of Elizabethtown Water Company" dated Sep- tember 1, 1965 (as revised through February 1, 1973) as described in a separate booklet which will be given to each employee. The provisions of said plan, as revised through February 1, 1973, shall not be subject to change prior to February 1, 1977. Since on or about September 21, 1976, and at other times thereafter to date, including on or about December 15, 1976, January 27 and April 18, 1977, the Union has requested and is now requesting Respondent to bargain collectively with respect to the Plan. Since on or about September 21, 1976, and at all times thereafter to date, Respondent has refused and continues to refuse to negotiate with the Union matters with respect to the Plan. Respondent and the Union have entered into various collective-bargaining agreements covering employees in the above-described appropriate unit.3 Each retirement plan agreement prior to February 1, 1973, had an expiration date which was coterminous with that of the collective-bargaining agreement then in effect; the agreements were usually (but not always) of 2 years' duration. During negotiations for the agreement which be- came effective February 1, 1973, the Union and Respondent agreed on the language contained in article XXV before they reached agreement on the 3 The duration clauses for the four most recent collective-bargaining agreements, in reverse chronological order, were: February I, 1976, through January 31, 1978 (the current Agreement); February I, 1974, through January 31, 1976; February 1, 1973, through January 31, 1974; and February 1, 1971, through January 31, 1973. 4 After briefs were submitted, Respondent filed a "motion to disregard brief submitted on behalf of the charging party." The Union filed a reply to the motion, urging that the motion be denied. Respondent contends that the Union's brief should be disregarded because it exceeds the scope of the stipulation in certain respects. In particular, Respondent points to an allegation by the Union that Respondent "responded by saying it had to 'prce out' the proposals" and that Respondent's argument that it was not duration of the collective-bargaining agreement. The parties subsequently agreed that the collective-bar- gaining agreement would run for a I-year term, and as a result the term of the Plan agreement was not coterminous with that of the collective-bargaining agreement. The expiration date of the Plan agree- ment was 1 year later than the expiration date of the succeeding collective-bargaining agreement, effective February 1, 1974, which ran for 2 years. During negotiations for the current Agreement, the Union did not submit any demands regarding the terms of the Plan, nor did the parties specifically discuss whether negotiations concerning the Plan would be carried out at the same time as negotiations for a new collective-bargaining agreement in the future. The Union did not submit any demand that Respondent obligate itself to bargain collectively with the Union during the term of the Agreement, nor have the parties ever negotiated or agreed to negotiate wages or other terms and conditions of employment during the term of their collective-bar- gaining agreements. B. Contentions of the Parties4 The Union and the General Counsel contend that the Plan is a separate agreement, independently setting forth its termination date, which is incorpo- rated by reference into the collective-bargaining agreement. Therefore, the Union and the General Counsel argue, article XXVI of the Agreement does not absolve Respondent from its duty to bargain over the Plan, a mandatory subject of bargaining, and failure to find a duty to bargain would result in a period of uncertainty between February 1, 1977, when the Plan agreement expired, and February 1, 1978, when negotiations for the new collective-bar- gaining agreement will begin. The Union and the General Counsel also assert that the Union did not waive its right to bargain concerning the Plan by failing to raise the issue during the negotiations for the Agreement; since the parties had already agreed that the Plan would not be subject to change prior to February 1, 1977, they argue that discussions con- cerning changes in the Plan would have been premature at the time the parties were negotiating the Agreement. required to negotiate was therefore an afterthought. Respondent also contends that the Union's repeated references in its brief to various clauses in other collective-barganing agreements are irrelevant, rank hearsay, and totally outside the scope of the stipulation. To the extent that they allege that the matters referred to go beyond the scope of the stipulation, we find Respondent's exceptions meritorious. However, contrary to Respondent, we conclude that it is appropriate to disregard only those portions of the brief specifically identified by Respondent as exceeding the scope of the stipulation rather than disregard the Union's entire brief. Accordingly, the above-described portions of the Union's brief, and contentions based thereon, have been disregarded in reaching this decision. 319 DECISIONS OF NATIONAL LABOR RELATIONS BOARD For these reasons, the Union and the General Counsel maintain that Respondent violated and is violating Section 8(a)(5) and (1) of the Act by refusing to bargain collectively with the Union with respect to the Plan. Respondent contends that it is not obligated to bargain concerning the Plan because the Plan is a term and condition of employment specifically con- tained in the Agreement, and therefore Respondent cannot be obligated to bargain concerning the Plan until the expiration of the Agreement. Furthermore, Respondent claims, the Union waived its right to bargain over the Plan by agreeing to simply reincor- porate the Plan into the Agreement without request- ing that the Plan be revised so as to be subject to negotiations simultaneously with the Agreement. In view of these assertions, Respondent submits that the Board should dismiss the complaint with prejudice. C. Discussion and Conclusion Section 8(d) of the Act requires an employer to bargain with the representative of the employees "with respect to wages, hours, and other terms and conditions of employment." It is well settled that a retirement plan constitutes a "term and condition of employment" within the meaning of the Act and is therefore a mandatory subject of bargaining.5 An employer must bargain during the existence of a bargaining agreement in regard to a mandatory subject of bargaining not specifically covered by the contract or unequivocally waived by the union, regardless of whether the contract contains a reopen- er clause.6 We do not agree with Respondent's argument that, because the Agreement incorporates the Plan by reference, Respondent is thereby relieved of any duty to bargain concerning the Plan during the term of the Agreement. Contrary to Respondent, we find that the language of article XXVI of the Agreement does not expressly or by implication provide that the Agreement is not negotiable during its term. Unlike Nevada Cement Company,7 cited by Respondent, article XXVI does not forbid alterations, modifica- tions, or termination during the term of the Agree- ment; it merely provides that the Agreement will "remain in full force and effect." The Agreement did not forbid negotiations on the Plan during the term of the Agreement. Contrary to Respondent, the fact that the parties had not negotiated with respect to wages, hours, or other terms and conditions of employment during the term of previous collective- bargaining agreements does not require a finding that Respondent was not obligated to bargain with 5 Inland Steel Company. 77 NLRB 1 (1948). 6 N L Industries, Inc., 220 NLRB 41 (1975). the Union about the Plan. The situation presented in February 1977 was a novel one-for the first time during the relationship between the parties, a provi- sion in the current collective-bargaining agreement would expire during the term of the Agreement. Furthermore, at the time that the parties were negotiating the collective-bargaining Agreement, the terms of the Plan were not subject to change for another year. It would have been premature to have negotiated concerning the Plan in 1976, because the parties had earlier agreed not to change the Plan until 1977. The collective-bargaining Agreement does not even reflect an understanding on whether the Plan would be continued on the same basis after February 1, 1977, or whether, instead, it would be terminated on that date, and the parties did not discuss this matter or any other matter with respect to the Plan during negotiations. Furthermore, we find no merit in Respondent's argument that the Union waived its statutory right to raise matters with respect to the Plan during the life of the collective-bargaining Agreement. The Board has declined to find that a party to a contract has waived its rights to bargain concerning mandatory subjects of bargaining simply because it failed to mention the subject; instead, the Board requires "a conscious relinquishment by the union, clearly in- tended and expressed." s Although, as noted above, the history of collective bargaining between the parties did not include midterm bargaining, the Union was not thereby obligated to request in 1976 a provision which would allow bargaining concerning the Plan in 1977. Rather, since neither party sought to bargain with respect to providing a mechanism whereby bargaining could occur when the Plan became subject to change, and since the Agreement does not reflect any understanding on the provisions under which a retirement plan may operate after February 1, 1977, we find that the Union did not clearly relinquish and thereby waive its statutory right to bargain about the Plan. Accordingly, we find that Respondent has, since on or about September 21, 1976, and at all times thereafter to date, refused to bargain collectively with the Union as the exclusive representative of the employees in the appropriate unit with respect to the Plan, and that, by such refusal, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act. 7 181 NLRB 738 (1970). 8 Perkins Machine Company, 141 NLRB 98, 102 (1963). 320 ELIZABETHTOWN WATER CO. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with its opera- tions described in section I, above, have a close, intimate, and substantial relationship to trade, traff- ic, 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 Respondent has engaged in and is engaging 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, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit with respect to the Plan and, if an understanding is reached, embody such in a signed agreement. The Board, upon the basis of the foregoing facts and the entire record, makes the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. The following constitutes an appropriate unit for the purposes of collective bargaining within the meaning of Section 9(b) of the Act: Sub Foreman, Instrument Repair, Serviceman, Sr. Utility Man, Utility Cl. I, Utility CI. II, Utility Cl. III, Plant Helper, Equipment Oper., Casual Laborer, Meter Reader, Meter Repairman, Meter Setter, Meter Reader/Spec., Accounts, Meter Reader/Setter, Auto Mechanic, Senior Storekeep- er, Storekeeper, Maint. Sub-Foreman, Maint. Mech. I, Maint. Mech.-Welder, Maint. Mech. II, Diesel Pump Operator, Elec. Pump Operator, Filter Pump Operator, High Lift Operator, Low Lift Operator, Relief Operator, Sta. Operator, Lab Tech., Messenger. 4. The above-named labor organization has been at all times material herein and is now the exclusive representative of all employees in the aforesaid appropriate unit for the purpose of collective bar- gaining within the meaning of Section 9(a) of the Act. 5. By refusing on or about September 21, 1976, and at all times thereafter, to bargain collectively with the above-named labor organization as the exclusive bargaining representative of all the employ- ees of Respondent in the appropriate unit, Respon- dent has engaged in and is engaging in unfair labor practices within the meaning of Section 8(a)(5) of the Act. 6. By the aforesaid refusal to bargain, Respon- dent has interfered with, restrained, and coerced, and is interfering with, restraining, and coercing, employ- ees in the exercise of the rights guaranteed to them in Section 7 of the Act, and thereby has engaged in and is engaging 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 mean- ing 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, Elizabethtown Water Company, Elizabeth, New Jersey, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively concerning the Employees' Retirement Plan and related matters with Local 423, Utility Workers Union of America, AFL-CIO, as the exclusive bargaining representative of its employees in the following appropriate unit: All sub foremen, instrument repairers, service- men, sr. utility men, utility cl. I, utility cl. II, utility cl. III, plant helpers, equipment opers., casual laborers, meter readers, meter repairmen, meter setters, meter reader/specs., accounts, me- ter reader/setters, auto mechanics, senior store- keepers, storekeepers, maint. sub-foremen, maint. mech. I, maint. mech.-welders, maint. mech. II, diesel pump operators, elec. pump operators, filter pump operators, high lift operators, low lift operators, relief operators, sta. operators, lab techs., and messengers; but excluding office clerical employees, all guards and supervisors as defined in the Act, confidential employees, mana- gerial employees, and all other employees. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of the rights guaranteed them in Section 7 of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Upon request, bargain with the above-named labor organization as the exclusive representative of all employees in the aforesaid appropriate unit with respect to the Employees' Retirement Plan and related matters, and, if an understanding is reached, embody such understanding in a signed agreement. 321 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at Elizabeth, New Jersey, copies of the attached notice marked "Appendix."9 Copies of said notice, on forms provided by the Regional Director for Region 22, after being duly signed by Respon- dent's representative, shall be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicu- ous 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 22, in writing, within 20 days from the date of this Order, what steps have been taken to comply herewith. H In the event that this Order is enforced by a Judgment of a United States Court of Appeals, the words in the notice reading "Posted by Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board." APPENDIX NOTICE To EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government WE WILL NOT refuse to bargain collectively concerning the Employees' Retirement Plan and related matters with Local 423, Utility Workers Union of America, AFL-CIO, as the exclusive representative of the employees in the bargaining unit described below. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the rights guaranteed them by Section 7 of the Act. WE WILL, upon request, bargain with the above-named Union, as the exclusive representa- tive of all employees in the bargaining unit described below, with respect to the Employees' Retirement Plan and related matters, and, if an understanding is reached, embody such under- standing in a signed agreement. The bargaining unit is: All sub foremen, instrument repairers, ser- vicemen, sr. utility men, utility cl. I, utility cl. II, utility cl. III, plant helpers, equipment opers., casual laborers, meter readers, meter repairmen, meter setters, meter read- er/specs., accounts, meter reader/setters, auto mechanics, senior storekeepers, store- keepers, maint. sub-foremen, maint. mech. I, maint. mech.-welders, maint. II, diesel pump operators, elec. pump operators, filter pump operators, high lift operators, low lift opera- tors, relief operators, sta. operators, lab techs., and messengers; but excluding office clerical employees, all guards and supervi- sors as defined in the Act, confidential employees, managerial employees and all other employees. ELIZABETHTOWN WATER COMPANY 322