The Brooklyn Union Gas Co.

BROOKLYN UNION GAS COMPANY 189 The Brooklyn Union Gas Company and Local 101, Utility Division, Transport Workers Union of America, AFL-CIO. Case 29-CA-4003 September 11, 1975 DECISION AND ORDER BY MEMBERS FANNING, JENKINS, AND PENELLO On April 18, 1975, Administrative Law Judge Wal- ter H. Maloney, Jr., issued the attached Decision in this proceeding. Thereafter, Respondent and General Counsel filed exceptions and supporting briefs.' 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 considered the record and the at- tached Decision in light of the exceptions and briefs and has decided to affirm the rulings, findings, and conclusions of the Administrative Law Judge and to adopt his recommended Order. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Re- lations Board adopts as its Order the recommended Order of the Administrative Law Judge and hereby orders that Respondent The Brooklyn Union Gas Company, Brooklyn, New York, its officers, agents, successors, and assigns, shall take the action set forth in the said recommended Order. 1 Respondent's request for oral argument is denied since in our opinion. the record, including the transcripts , exhibits, and briefs, adequately pre- sents the issues and positions of the parties. DECISION FINDINGS OF FACT STATEMENT OF THE CASE WALTER H. MALONEY, JR., Administrative Law Judge: This case came on for hearing before me at Brooklyn, New York, upon a complaint, I issued by the Regional Director for Region 29, which alleges that the Respondent , Brook- lyn Union Gas Company, violated Section 8(a)(1) and (5) ' The principal docket entries in this case are as follows. Charge filed herein on September 3, 1974, by Local 101, Utility Division, Transport Workers Union of America, AFL-CIO (herein called Union); complaint issued on November 19, 1974; Respondent's answer filed on November 25, 1974; hearing held in Brooklyn, New York, on January 20 and 21, 1975: briefs filed by the General Counsel and the Respondent on March 17, 1975 of the National Labor Relations Act, as amended .3 Specifi- cally, the complaint alleges that the Respondent violated Section 8(a)(5) of the Act by refusing to furnish the Union with the job descriptions, rates of pay, and fringe benefits for some 46 classifications of employees. This information was requested by the Union from the Respondent on June 21, 1974. Respondent admits refusing to supply the re- quested information but asserts that the information called for relates solely to nonunit employees and is irrelevant to the Union's function as bargaining agent, so that Respon- dent was under no obligation to provide it. Upon these contentions, the issues herein were joined. A. Outline of Events in Questions Respondent supplies natural gas to residents and busi- nesses in the New York boroughs of Brooklyn and Queens. Its present operation is the result of mergers or consolida- tions with other gas companies which formerly supplied natural gas to portions of Brooklyn and other boroughs. The original Brooklyn Union Gas Company has main- tained a collective-bargaining relationship with the Union since 1942. This relationship can accurately be character- ized as mature and stable, having endured through a total of 18 collective-bargaining contracts concluded by these parties during that period of time. As outlined in earlier Board cases, during the late 1950's, the Respondent ac- quired the Kings County Lighting Company, the Rich- mond Gas Company, and the Brooklyn Borough Gas Company. In 1959, following consolidation with Kings County Lighting Company and Richmond Gas Company, the Board certified the Union as the exclusive collective- bargaining agent for a unit which included all employees of the Respondent working in or permanently assigned to its operations in the boroughs of Brooklyn and Queens, ex- cluding superintendents, heads of departments, foremen, certain skilled technicians employed in chemical laborato- ries, confidential employees, guards, and supervisors as de- fined in the Act. Upon the acquisition of Brooklyn Bor- ough Gas Company a couple of years later, the unit was clarified to include all physical and clerical employees of the former Brooklyn Borough Gas Company, with the same exclusions noted above. I take official notice of the fact that, on February 1, 1961, the Union was certified by the Board to ,represent all employees of the Respondent working in or permanently assigned to the operations of the Respondent in the boroughs of Brooklyn and Queens, with the above-noted exclusions (Case 2-RC-11131). The current collective-bargaining agreement, which ex- tends from May 1, 1973, to June 15, 1975, contains the 2 Respondent admits, and I find, that it is a New York corporation which maintains its principal place of business in Brooklyn, New York, where it is engaged in the sale and distribution of natural gas and related products In the preceding 12-month period, a representative period, it has derived gross revenues in excess of $250,000, and has purchased at Brooklyn , New York, from points and places outside the State of New York goods and materials valued in excess of $50,000. Accordingly, it is an employer engaged in com- merce within the meaning of Sec 2(2), (6), and (7) of the Act. I also find that the Union is a labor organization within the meaning of Sec 2(5) of the Act i Certain errors in the transcript are hereby noted and corrected. ° Brooklyn Union Gas Company, 123 NLRB 441 (1959), 129 NLRB 361 (1960). 220 NLRB No. 38 190 DECISIONS OF NATIONAL LABOR RELATIONS BOARD following recognition clause: The Company recognizes the Union as the exclusive bargaining agency for wages, hours and other condi- tions of employment for all of the employees of the Company in the bargaining unit set forth in the certifi- cation of the National Labor Relations Board, dated February 1, 1961, in Case 2-RC-11131. Such bargain- ing unit covers and applies to all employees for the work usually performed by them in the classifications and job titles set forth in Schedules I and II attached hereto and made a part hereof. The Union is also rec- ognized as bargaining agency for employees in new classifications hereafter established by mutual agree- ment and covered by this agreement. The following classifications of employees shall not be deemed to be included in or covered by the terms of this agreement: Those employed as executives, su- perintendents, heads of departments, foremen, or in a managerial or supervisory capacity, certain skilled technical employees in the chemical laboratories other than those who have by mutual agreement heretofore been included in the bargaining unit, and employees engaged in confidential capacities. The agreement lists in addenda a large number of hourly rated and salaried job titles, together with the wages and salaries which are established by the contract. The classifi- cations do not contain descriptions of job functions. During the negotiations between the parties which led to the 1971-73 contract, the Union voiced its concern that various functions which should be performed by bargain- ing unit personnel were in fact being assigned to persons in nonunit classifications, and complained that the bargain- ing unit was thereby being eroded. As a result of this com- plaint, the parties included in the 1971-73 agreement a pro- vision for a unit determination committee. The function of the committee was "to determine whether or not job classi- fications have been created by the Company on a unilater- al basis for the purpose of using employees in such classifi- cations primarily to perform work formerly performed by employees in bargaining unit classifications." During the term of the 1971-73 agreement, the committee, composed of three representatives from each party, met about six times but did not resolve any complaints brought up by the Union. The Union expressed dissatisfaction with the func- tioning of the committee, claiming that the language in the contract describing its function was being used as an unin- tended limitation on the scope of its operations. It com- plained that whenever its representatives advanced claims that nonunit employees were doing unit work, they were simply met with counterclaims and requests that certain unit positions be transferred out of the unit. In the 1973 negotiations, the Union insisted that the lan- guage in the earlier contract describing the committee's functions be dropped from the new agreement. According- ly, the current agreement makes provisions simply for an ongoing unit determination committee, without specifying the scope of its activities. In June 1973, the Union was furnished by the Respondent with a copy of a letter ad- dressed to the Office of Wage Stabilization in support of an application for general wage, salary and benefit adjustment in excess of the 5.5-percent wage limitation guideline which was then in effect under the wage and price control pro- gram. The application involved bargaining unit personnel, but the letter also contained a listing of a large number of job titles which were not covered by the collective-bargain- ing agreement. About a year later, on June 21, 1974, Union President William Kirrane, Jr., wrote to the Respondent a letter asking for job descriptions, rates of pay, and fringe benefits paid to the noncovered employees holding some job titles in some 21 departments which were mentioned by the Respondent in its earlier application to the Pay Board. These titles, set forth in paragraph 10 of the complaint, are: Executive Offices-accounting assistant and steno- secretarial Accounting-head clerk-accounts payable, head clerk, senior engineer accountant, and staff assistant Audits-examiner grade 2, examiner senior, and staff assistant Commercial-General-office assistant Systems Services-programmer, programmer ana- lyst, programmer trainee, and research operations as- sistant Development & Planning-field engineer, junior engineer, engineering assistant, and engineers assistant Distribution-General-staff assistant Economic Research-research assistant Insurance & Claim-investigator, investigator B, in- dustrial nurse, and staff assistant Gas Supply-General-chief clerk Personnel-staff administrator, personnel clerk, safety field inspector, and junior stenographer Public Relations & Advertising-art & production assistant, consumer consultant, assistant editor, and public relations assistant -- Purchasing-'staff assistant and storekeeper Rate-research assistant Treasury-staff assistant Commercial-staff assistant Consfruction-engineering assistant and inspector Distribution-chief assistant draftsmen Gas Supply-assistant systems supervisor No.1, as- sistant systems supervisor No. 2, and governor inspec- tor New Business-commercial appliance inspector Technical Services-Transportation-office manager Kirrane stated in the letter that he needed the information to assist him in a presentation he was going to make to the unit determination committee. At the hearing Kirrane stat- ed that the information also was necessary to evaluate the possibility of going to arbitration and. for use in the upcom- ing 1975 negotiations. The unit determination committee met on July 3, 1974, at which time employer representatives took no position respecting the request for information, but told the Union that they would reply to the June 21 letter. About 2 weeks later, Kirrane phoned Respondent's personnel manager, Richard L. Coddington , to inquire if the Company had made a decision about furnishing the Union the informa- tion requested in the letter of June 21. Coddington replied BROOKLYN UNION GAS COMPANY that the Respondent would not furnish the information re- quested. As a matter of general personnel administration, the Re- spondent maintains information on such job titles, whether unit or nonunit, from which conventional job descriptions can be derived. Originally, these descriptions were pre- pared for it by the Hay Company, an outside consultant. More recently, the Respondent has updated these position evaluations by the work of its own staff. The evaluations in question involve a recitation of the knowledge require- ments of each job, the problem-solving aspects of each job, and the accountability imposed upon the incumbent in each position. The purpose of these evaluations, whether made by a consultant or by in-house personnel, is to assist the Respondent in establishing an appropriate salary or wage for each position which exists within the Company. B. Analysis and Conclusions There are approximately 2,200 employees covered by the current agreement between the two private parties to this litigation. The Union contends that, in the 1950's, the unit included about 5,000 employees and that, as late as 1962, it covered some 2,800 employees, but that this number has declined to about 2,200 at this time. Involved in this dis- pute are about 46 noncovered job classifications, embrac- ing an estimated 100-150 employees. I use the phrase "noncovered" rather than nonunit since the underlying and continuing dispute between the Respondent and the Union is the question of whether or not these classifica- tions, which are not in fact presently covered by the con- tract, should be a part of the bargaining unit if the certifi- cation and recognition clause in the agreement were properly applied. It was to resolve this question that the joint union-management unit determination committee was established in 1971 and was continued in 1973. For its part, the Respondent advances several conten- tions. At the hearing, it claimed that the Union is acting, in effect, in bad faith because its true motive in soliciting the information in dispute is to extend the scope of the present bargaining unit to include persons not in the unit. Respon- dent also claims that the Union never actually said why it wanted the information but that its suspected motive, the bringing of nonunit employees into the unit, would consti- tute an infringement upon the Section 7 rights of individu- als who took such jobs with the express understanding and belief that they were nonunit, and hence nonunion, posi- tions. The Respondent asserts that the Union does not need information respecting the job duties and compensa- tion of nonunit employees to service individuals it repre- sents within the bargaining unit, that in fact the Respon- dent offered to permit the Union or its agents to discuss the job functions of nonunit employees in question with supervisors in the various departments where they are found,5 and that many of the classifications in question have existed within the Company for many years, and, through continued acquiescence over the years in leaving these employees outside the bargaining unit, the Union has waived any claim it might now have before an arbitrator or 5 The Union denies this claim 191 in a unit clarification proceeding to contend that these jobs belong to the bargaining unit. Furthermore, Respondent contends that any action by an arbitrator in directing the inclusion of these classifications in the unit would amount to a revision of the existing contract, a power not delegated to him by the grievance and arbitration provisions. Hence, any information sought herein would be irrelevant to any proper arbitration proceeding. Respondent also denies that the bargaining unit has been eroded, pointing to the fact that the Union now represents a larger percentage of the Respondent's total complement of employees (73.2 per- cent) than it did when the unit determination committee was established in 1971 (72.0 percent). It also proclaims its good faith in complying with the agreement by the fact that, during this time, the Respondent agreed with the Union that some 13 newly, established classifications should be included within the bargaining unit, and that they are now in fact covered by the existing contract. These contentions must be examined in light of a well- developed body of decisional law which has applied the provisions of Section 8(a)(5) of the Act to various refusals by employers to provide bargaining agents with informa- tion assertedly requested to assist in fulfilling a statutory function. The refusal of an employer to provide a bargain- ing agent with information relevant to the Union's task of representing its constituency is a per se violation of the Act. It is no defense to a charge of bad-faith bargaining on this point that the employer has in good faith withheld the in- formation sought. Curtiss-Wright Corporation v. N.L.R.B., 347 F.2d 61 (C.A. 3, 1965); Fawcett Printing Corporation, 210 NLRB 964 (1973). Any information concerning the status or compensation of bargaining unit employees is presumptively relevant to the union's statutory duty, and hence is producible under the terms of the Act 6 However, the range of relevance is not limited by the boundaries of the bargaining unit .7 Hence, an employer may be required to furnish a union with information relating to the wage rates of employees of the same employer who work in an- other plant outside the unit serviced by the demanding union. The obligation to provide information extends to data concerning benefits paid to retirees who have left the bargaining unit and are not even deemed to be employees within the meaning of the Act,9 as well as to salaried tech- nicians who are also outside the unit in which bargaining is to take place.1° Relevant information may relate to wages and benefits paid to supervisors, even though they them- selves are clearly ineligible to seek the assistance of the Act in requiring an employer to bargain concerning their own status and compensation." Hence, the fact that some of the classifications involved in the instant dispute are, or may be, supervisory in character does not mean that the information sought by the Union pertaining to such classi- fications is irrelevant to the bargaining which will occur concerning unit personnel. Where, as here, the basic ques- tion is one of unit placement of a classification, the rele- 6 The American Oil Company, a Texas Corporation, 164 NLRB 29 (1967) 7 General Electric Company, 199 NLRB 286 (1972) 9 Hollywood Brands, Inc 142 NLRB 304 (1963). 9 Union Carbide Corporation, Carbon Products Division, 197 NLRB 717 (1972). 10 Goodyear Aerospace Corporation, 157 NLRB 496 (1966). ^1 Northwest Publications, Inc, 211 NLRB 464 (1974). 192 DECISIONS OF NATIONAL LABOR RELATIONS BOARD vance of job descriptions of assertedly nonunit classifica- tions is all the more pronounced. To justify a Board order, the General Counsel need not make a showing that the information sought is certainly relevant or clearly dispositive of the basic negotiating or arbitration issues between the parties. The fact that the information is of probable or potential relevance is suffi- cient to give rise to an obligation on the part of an employ- er to provide it . General Electric Corporation, supra. In pass- ing upon this matter, the Supreme Court enunciated that a liberal discovery-type standard is the appropriate one in determining the potential relevance of information sought in aid of bargaining agent's responsibility . The Court quot- ed Moore's Federal Practice, Volume 4, Section 1175-76 (2d ed.) to the effect that "it must be borne in mind that the standard for determining relevancy at a discovery exami- nation is not as well defined as at the trial . . . . Since the matters in dispute between the parties are not as well de- termined at discovery examinations as at the trial , courts of necessity must follow a more liberal standard as to relevan- cy." N.L.R.B. v. Acme Industrial Company, 385 U.S. 432, 437, fn. 6 (1967). It is of sufficient relevance if the informa- tion sought bears upon the Union's determination to file a grievance or is helpful in evaluating the propriety of going to arbitration. Vertol Division, Boeing Corporation, 182 NLRB 421 (1970). The Board need not stay its hand in compelling production of data until an arbitrator has actu- ally made a ruling that the information is in fact relevant to the arbitral proceeding . N.L.R.B. v. Acme Industrial Com- pany, supra. The fact that an arbitrator may ultimately find a union's position to be unpersuasive does not mean that information sought in support of that position is irrelevant. Indeed, the very opposite would appear to be more proba- ble. Fawcett Printing Corporation, supra; General Electric Corporation, supra. Many of the Respondent's arguments presume as fact the ultimate issue between the parties , an issue which the Union seeks to resolve with the help of the data it request- ed. Respondent says that it will not bargain nonunit em- ployees into the unit, and that it is under no mandatory duty to do so . It further states that the Union comes before the Board without clean hands because it seeks informa- tion to support an effort to extend the boundaries of the bargaining unit to cover nonunit employees , and contends that such an extension amounts to an illegal invasion of the rights of nonunit employees to remain nonunion employ- ees. The gravamen of the Union's complaint is that the 46 classifications in question in fact are, or may be, in the unit already, even though they are not covered by the existing contract. It wants the information sought in its June 21 letter to determine whether to press this point , as to any or all classifications, either at meetings of the unit determina- tion committee, in arbitration, or at forthcoming negotia- tions. While the Respondent may flatly refuse to negotiate nonunit employees into the unit, its agreement to establish the unit determination committee in two different con- tracts evidences a willingness and a commitment on its part to adjust differences of construction as to who is properly in the unit under a correct reading of the certification and the contract, and to do so by the process of ongoing negoti- ation. The status of employees as being unit or nonunit employees is a mandatory subject of bargaining, Curtiss- Wright Corporation, Wright Aeronautical Division v. N.L.R.B., supra, 347 F.2d 61, 71, and the parties herein have already established the machinery for bargaining about this subject during the contract term. Moreover, I cannot say the question is not an arbitrable one under the broad grievance and arbitration procedures found in the agreement. The fact that the Union may, or may not, be guilty of laches in pressing its case concerning many older classifications is a matter for the arbitrator to determine after a hearing on the merits. The Board is not now called upon to determine the merits of any of these questions but merely to extend the processes of the Act in aid of such determinations. Accordingly, it is my conclusion that the information sought by the Union in its letter of June 21, 1974, is potentially relevant to a matter committed to the responsibility of the bargaining agent and at issue between the parties, and that the refusal of the Respondent to sup- ply such information violates its duty under Section 8(a)(5) of the Act.12 Upon the foregoing findings of fact, and upon the entire record herein considered as a whole, I make the following: CONCLUSIONS OF LAW 1. Respondent Brooklyn Union Gas Company is an em- ployer engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Local 101, Utility Division, Transport Workers Union of America, AFL-CIO, is a labor organization with- in the meaning of Section 2(5) of the Act. 3. At all times material herein Local 101, Utility Divi- sion, Transport Workers Union of America, AFL-CIO, has been the exclusive representative for purposes of col- lective bargaining of the employees in the following de- scribed unit: All employees of the Respondent employed in or perma- nently assigned to operations in the Boroughs of Brooklyn and Queens, N. Y., excluding executives, superintendents, heads of departments, salesmen, skilled technical employ- ees in chemical laboratories other than those who by mutu- al agreement in the past have been included in the bargain- ing unit, confidential employees, guards, foremen, and all supervisors, as defined in the Act. 4. Since on and after June 21, 1974, the Respondent has failed and refused to provide the aforesaid collective-bar- gaining representative with information relating to the job descriptions, wages, and other fringe benefits of certain classes of employees named in paragraph 10 of the com- plaint, and in so doing, has violated Section 8(a)(1) and (5) of the Act. This unfair labor practice has a close, intimate, and substantial effect on the free flow of commerce within the meaning of Section 2(6) and (7) of the Act. 12 1 credit the uncontradicted testimony of Industrial and Employee Rela- tions Administrator Harry P. Irwin that two classifications contained in the Union's demand letter-head clerk in the accounting department and field engineer in the development and planning department-no longer exist. Accordingly, the recommended Order herein will not be directed at infor- mation involving these obsolete job titles. BROOKLYN UNION GAS COMPANY 193 THE REMEDY Having found that the Respondent has committed an unfair labor practice, I will recommend that it be ordered to cease and desist therefrom and to take certain affirma- tive action designed to effectuate the purposes and policies of the Act. Specifically, I will recommend that it be or- dered to provide the information requested of it by the Union as to 44 of the 46 job classifications named in para- graph 10 of the complaint. Upon the foregoing findings of fact, conclusions of law, and upon the entire record herein considered as a whole, and pursuant to Section 10(c) of the Act, I make the fol- lowing recommended: ORDER 13 Respondent Brooklyn Union Gas Company, Brooklyn, New York, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain collectively with Local 101, Util- ity Division, Transport Workers Union of America, AFL- CIO, by refusing to furnish it with job descriptions, rates of pay, and fringe benefits of job classifications contained in paragraph 10 of the complaint herein, with the exceptions of the classifications of head clerk in the accounting de- partment and field engineer in the development and plan- ning department. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action designed to ef- fectuate the purposes and policies of the Act: (a) Furnish the Union in writing complete job descrip- tions, rates of pay, and fringe benefits attached to all job classifications set forth in paragraph 10 of the complaint herein, with the exceptions of the classifications of head clerk in the accounting department and field engineer in the development and planning department. (b) Post at its Brooklyn, New York, facilities, copies of the attached notice marked "Appendix." 14 Copies of said notice on forms provided by the Regional Director for Re- gion 29, after being duly signed by the Respondent's repre- sentative, shall be posted by the Respondent immediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places where notices to employees are customarily post- ed. Reasonable steps shall be taken to insure that said no- tices are not altered, defaced, or covered by any other ma- terial. (c) Notify the Regional Director for Region 29, in writ- ing, within 20 days from the date of this Order, what steps have been taken to comply herewith. IT IS ALSO RECOMMENDED that insofar as the complaint al- leges matters which have not been found herein to have violated the Act, the complaint is hereby dismissed. 13 In the event no exceptions are filed as provided by Sec 102.46 of the Rules and Regulations of the National Labor Relations Board, the findings. conclusions, and recommended Order herein shall, as provided in Sec. 102 48 of the Rules and Regulations, be adopted by the Board and become its findings, conclusions, and Order, and all objections thereto shall be deemed waived for all purposes 14 In the event the Board's Order is enforced by a Judgment of the 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 bargain collectively with Local 101, Utility Division, Transport Workers Union of America, AFL-CIO, and in so doing WE WILL furnish to that Union a list of job descriptions, rates of pay, and fringe benefits pertaining to job classifications con- tained in the Union's request to us of June 21, 1974, except for two classifications which have become ob- solete. THE BROOKLYN UNION GAS COMPANY