Michigan Bell Telephone Co.

428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Michigan Bell Telephone Company and Communica- tions Workers of America, AFL-CIO, Petitioner. Case 7-RC-12170 April 18, 1975 DECISION AND DIRECTION OF ELECTION BY MEMBERS JENKINS, KENNEDY, AND PENELLO Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held before Hearing Officer Kenneth A. Rose on January 15 and 16, 1974, at Grand Rapids, Michigan. Following the hearing, and pursuant to Section 102.67 of the National Labor Relations Board Rules and Regulations, Series 8, as amended, by direction of the Regional Director for Region 7, this case was trans- ferred to the National Labor Relations Board. Briefs have been filed by the Employer and the Petitioner. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has reviewed the Hearing Officer's rul- ings made at the hearing and finds that they are free from prejudicial error. The rulings are hereby affirmed. Upon the entire record in this case, including the briefs filed by the parties, 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 organization involved claims to repre- sent certain employees of the Employer. 3. A 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. 4. The Petitioner seeks to represent in a single unit "All Commercial Department employees employed by the employer within the Grand Rapids District, includ- ing service representatives, clerical employees, and out- side representatives, but excluding marketing and di- rectory sales employees, guards and supervisors as defined in the Act." The parties are in agreement that the above- requested unit is the same unit that was sought by the Union in several prior and pending representation cases involving the same parties at different locations. In the present case, as in all the prior ones, the Employer has contended that the petitioned-for unit is too narrow and therefore is not an appropriate one. By way of background, the Union, in the fall of 1970, filed a petition for the employees in the Michigan Bell commercial office in Battle Creek.' The Company as- serted that a single office-was not an appropriate unit for bargaining. The Regional Director, however, found that the requested unit was appropriate,-and his Deci- sion and Direction of-Election was affirmed by a majority of the Board.' The Union, however, failed to obtain a majority in that election. About a year later the Union again filed a petition for the same unit at the Battle Creek office.' On the basis of the record in the first proceeding, and an additional hearing, the Regional Director found the unit was ap- propriate and directed an election. The Employer's re- quest for review was denied and the Union won the election and was certified. In mid-1973, the Union again petitioned for single- office units, filing separate petitions for the Jackson office4 and the Holland office.' The cases were con- solidated for a hearing. The Regional Director, consid- ering the Battle Creek case as precedent, found that the Jackson office constituted an appropriate unit. On November 15, 1973, the Board granted the Employer's request for review of the Jackson decision. That matter was pending before the Board at the time the instant case was transferred to the Board.' Meanwhile, in the Battle Creek case (192 NLRB 1212) the Employer again asserted the unit was inap- propriate and declined to bargain with the Union after it was certified. An 8(a)(5) complaint was issued in that case,7 and the General Counsel moved for summary judgment. In its answer to the motion for summary judgment, the Employer contended that, because of recently adopted changes in its hiring process affecting all commercial offices, the Board should reconsider its holding in the case reported at 192 NLRB 1212, and should also take into account the evidence presented in the Jackson-Holland hearing. The Board on December 5, 1973, declined to grant summary judgment and re- manded Case 7-CA-10185 for an additional hearing on the unit question. It was against this background that the instant peti- tion was filed. At the instant hearing, the parties, recog- nizing that the unit issue as it related to the Grand Rapids commercial employees was essentially the same as had already been fully litigated with respect to com- mercial operations at Battle Creek, Jackson, and Hol- land, agreed that the Board should take notice of the records (and briefs) in those cases. Thus the thrust of the evidence presented at the instant hearing related to the Employer's allegations that there had been changes 1 Case 7-RC-10176. 2 192 NLRB 1212 (1971) 3 Case 7-RC-11334 4 Case 7-RC-11581. 5 Case 7-RC-11603 6 The Regional Director dismissed the petition regarding the Holland office and there was no request for review of this action 7 Case 7-CA-10185. 217 NLRB No. 74 MICHIGAN BELL TELEPHONE COMPANY in its central hiring procedure since the second hearing in the Battle Creek case which would require a finding that only a systemwide unit is now appropriate. Near the close of the hearing the parties stipulated the fol- lowing: (1) The duties and authorities of local supervi- sion in Grand Rapids are the same in material aspects as those of other business offices covered in the past hearings, and as already elaborated on in this hearing. (2) The work product and essential job duties are the same in material aspects for persons in the classifications sought in Grand Rapids as they are at other locations, as reflected in the records of the prior proceedings, of which official notice has been taken here. The parties also agreed that, (3) [F]or the Grand Rapids employees, [there are no] differences, material differences in work contacts of these employees with employees of other locations than the evidence that we have on the subject in the past hearings. (4) Neither of the parties have anything on his- tory of collective bargaining that has not been fully covered in past proceedings. Meanwhile, on February 20, 1974, the hearing com- menced in Case 7-CA-10185. The evidence presented at that hearing was limited to the alleged change in the hiring role of commercial office managers. The Ad- ministrative Law Judge admitted into evidence the transcript from the Jackson hearing, and the transcript of the hearing in the instant case, for purposes of reach- ing a decision on the alleged hiring change. After the hearing, the Administrative Law Judge issued his Decision, finding, on the basis of all the evidence before him, inter alia, that the Battle Creek unit had remained appropriate and that the Employer had violated Section 8(a)(5) and (1) of the Act by refus- 8 216 NLRB No. 145 (1975). / 429 ing to bargain in .that case. On February 27, 1975, a majority of the Board affirmed the findings of the Ad- ministrative Law Judge.' In addition to the record made at the hearing in the instant case (which also was reviewed in our affirmance of the Administrative Law Judge's findings in 216 NLRB No. 145 (1975), we have considered as a part of this record the records from the aforementioned pro- ceedings between these parties. The parties have also agreed that the unit sought herein is the same as the units in the prior proceedings. Inasmuch as this record reveals no facts which would warrant a departure from our unit finding in 192 NLRB 1212 and our affirmance of that decision in 216 NLRB No. 145, we find that the requested unit is an appropriate one. Accordingly, on the basis of the entire record in this case, including all Board decisions and briefs in the earlier proceedings between these parties regarding the appropriateness of a unit of commercial office employees, we find that the following employees constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act: All commercial department employees employed by the employer within the Grand Rapids district, including service representatives, clerical em- ployees, and outside representatives, but excluding marketing and directory sales employees, guards, and supervisors as defined by the Act. [Direction of Election and Excelsior footnote omit- ted from publication.] MEMBER KENNEDY, dissenting: For the reasons set forth in my dissents in Michigan Bell Telephone Company reported at 216 NLRB No. 145 (1975) and 192 NLRB 1212 (1971), I would dis- miss this petition. The unit in which my colleagues direct an election herein may accommodate the Union's efforts at piecemeal organizing of the Em- ployer's commercial department, but it does not consti- tute an appropriate unit for bargaining in my opinion.