TRT Telecommunications Corp.

TRT TELECOMMUNICATIONS CORP. TRT Telecommunications Corporation and Local 111, International Brotherhood of Teamsters, Chauff- eurs, Warehousemen and Helpers of America, Petitioner. Case 2-RC- 17482 June 13, 1977 DECISION ON REVIEW AND DIRECTION OF ELECTION BY MEMBERS JENKINS, MURPHY, AND WALTHER On December 20, 1976, the Regional Director for Region 2 issued her Decision and Order in the above-entitled proceeding, in which she found that the Employer's New York operating station consti- tuted an accretion to the existing bargaining unit and that the collective-bargaining agreement between the Employer and the Intervenor was a bar to the petition.' Accordingly, the Regional Director dis- missed the petition filed herein, in which the Petitioner sought to represent a unit of all techni- cians, clerks, operators, and messengers at the New York operating station. Thereafter, in accordance with Section 102.67 of the Board's Rules and Regulations and Statements of Procedure, Series 8, as amended, the Petitioner filed a timely request for review of the Regional Director's decision on the ground, inter alia, that in making her finding she departed from Board precedent. The Employer and the Intervenor filed oppositions thereto. By telegraphic order dated January 27, 1977, the Board granted Petitioner's request for review. There- after, the parties filed briefs on review. 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. The Board has considered the entire record in this case, including all submissions by the parties with I Southern Electronic Association, Local 118, was permitted to intervene on the basis of a current collective-bargaining agreement with the Employer. The Intervenor has represented the Employer's employees since 1947 under a series of collective-bargaining agreements. The current agreement became effective January ,. 1976, and is to remain in force until March 31, 1979. It includes, as did other agreements, all the Employer's operations located in Florida and Louisiana. These operations are located at Slidell, Pearl River, and New Orleans, Louisiana, and Miami and Fort Lauderdale, Flonda. The Employer also has facilities at Washington, D.C., and New York, New York. The latter location is the one involved herein. a A gateway is a city from which an international communications company such as the Employer is authorized to transmit messages. Currently, there are five authorized gateway cities: New York, Washington, D.C., Miami, New Orleans, and San Francisco. Prior to recent FCC authorization the Employer was limited to establishing gateway operations in Miami and New Orleans. 3 The recognition provision reads in part as follows: The Company hereby recognizes the Association as the exclusive collective bargaining representative for all employees at the Company's transmitting, receiving, and/or operating stations at Fort Lauderdale 230 NLRB No. 15 respect to the issue under review, and makes the following findings: The Employer is licensed by the Federal Commu- nications Commission (henceforth FCC) as an international carrier of radio and telegraph messages. The Employer's headquarters are located in Wash- ington, D.C. The Employer maintains a central computer terminal at Fort Lauderdale, Florida. All inbound messages to the United States handled by the Employer are received at the Fort Lauderdale terminal complex and are subsequently relayed to gateway cities.2 For hinterland customers, i.e., those outside of gateway cities, messages are relayed through equipment or service of another company. Outbound messages are sent from the gateway cities to Fort Lauderdale for transmission and delivery elsewhere. The facility involved in this case is the Employer's new operating station in New York City. In 1975, FCC began considering proposals to permit all international communications carriers to operate in the five gateway cities. Concurrently, the Employer and the Intervenor conducted negotiations for a 1976 collective-bargaining agreement. Anticipating that FCC would in fact authorize additional gateways, the Employer and the Intervenor actively considered and specifically referred to potential gateway operations, including New York City, in the collective-bargain- ing agreement then being negotiated. The parties made special provisions concerning one-time trans- fers of employees from its southern stations to New York, Washington, D.C., or San Francisco, and modified the recognition provision to include em- ployees at those future stations.3 In March 1976, FCC authorized operations in the five aforementioned gateway cities. On June 15, 1976, the Employer opened its New York operating station. The Employer had previously selected its southeast regional sales manager, Marvin Gutkin, as station manager for the New York station. It also and Miami, Florida, Slidell, Pearl River and New Orleans, Louisiana . . . and stations which may be operated by the Company in the metropolitian areas of New York, New York, San Francisco, California and Washington, D.C. as well as stations in other localities for which the Company has applied or may apply for operating authority from the FCC. The transfer provision reads in part as follows: The Company and the Association recognize that the Company anticipates opening new operating stations in New York . .San Francisco... and Washington. ... Permanent assignments in filling initial and subsequent vacancies, promotional opportunities, wages, and all terms and conditions of employment in new operating stations will be in accordance with applicable articles of this Agreement ... However, on a one-time basis, to assist in the establishment and maintenance of new operating stations by encouraging the permanent transfer of experienced and qualified employees to fill vacancies, the Company agrees to reimburse selected applicants for relocation expenses up to a maximum of S3,000. 139 DECISIONS OF NATIONAL LABOR RELATIONS BOARD temporarily transferred engineers and installers from other stations to assist in setting up the New York station. Prior to commencing operations in New York, the Employer posted job openings for permanent posi- tions in New York at its various stations. Both the Employer and the Intervenor actively encouraged employees to transfer. Despite these efforts, no nonsupervisory employees elected to permanently transfer to the New York location from the Employ- er's Florida or Louisiana locations.4 In view of the employment situation engendered by the lack of transfers from its current stations, the Employer consulted with the Intervenor and decided to tender substantially higher wage offers to New York employees than the minimum permitted under the collective-bargaining agreement. The Employer sub- sequently staffed the New York station with employ- ees hired locally at these increased rates. Since the opening of the New York station, there have been no permanent or temporary transfers of employees from the Employer's southern stations to the New York station, nor have there been any permanent or temporary transfers of New York employees to the Florida or Louisiana locations. The New York employees were hired by Station Manager Gutkin within the staffing and salary limitations set by the Employer's division of opera- tions and engineering. Gutkin is responsible for the day-to-day operation of the New York station. In carrying out this function, Gutkin has the authority to discipline and discharge employees, schedule and assign work, approve overtime, and authorize sick leave, time off, and vacations. He also adjusts grievances of the New York station employees.5 Within the personnel level set by headquarters, Gutkin can hire replacements and promote employ- ees should positions become available. The New York facility is geographically distant from the Employer's other operating stations. With the exception of the one employee who works at the Washington, D.C., station, the closest other station employees to New York City are located in Louisi- ana and Florida, approximately 1,200 miles away. The New York station, like the Employer's other stations, is interconnected with the Employer's communications system through the Fort Lauderdale computer terminal. Employer's witnesses testified that Fort Lauderdale is the hub of the Employer's operations, and the stations are satellites to that 4 Because of the similarity of functions, each operating station has common staffing patterns, and the Employer utilizes a uniform job classification system. However, the operating stations are different in size, and they use only the technicians or operators required to perform the jobs in the particular station. Thus, there are 6 nonsupervisory employees located at New Orleans, 6 at Slidell, 20 at Pearl River, 18 at Miami, 104 at Fort Lauderdale, I at Washington, D.C., and 30 at New York, involved herein. terminal. Despite the technical interconnection, however, the record reveals that a shutdown of the New York station would result only in the closing of that location. No other segment of the Employer's communications system would be affected by such a shutdown. Conversely, if the Fort Lauderdale com- puter facility ceased functioning, the Employer's entire communications operation would be affected. The Employer's vice president of operations and engineering also testified that the New York office constituted the most important gateway operation in terms of business revenues. He stated that 25 to 30 percent of the international communications market emanates from New York, and that the Employer intended to make major inroads into the New York market. Indeed, as indicated, the Employer employs more classified employees at its New York station than at any other station with the exception of the Fort Lauderdale computer terminal. The Employer projects that there will be a 25-percent increase in overall growth at its New York station over the next year.6 All major corporate decisions are made at the Employer's headquarters. Its division of operations and engineering coordinates the functioning of the Employer's operating stations. Various managers situated in the Washington, D.C., office are responsi- ble for overseeing the computer system and other technological facets of the Employer's operations. The performance of each operating station is monitored by headquarters through telephone calls and onsite visits by the vice president and his staff and through daily and weekly reports and computer printouts.7 Headquarters also develops manuals and instructions pertaining to operations and engineering and makes decisions concerning capital expenditures and staff reductions or expansions. Similarly, the Employer's personnel policies are formulated at the Washington, D.C., headquarters. In addition to the uniform job classification system that is utilized, there are also systemwide employee benefits. Thus, the Employer's employees participate in similar health care, accidental death, retirement, tuition refund, severance pay, and holiday benefits. The existing collective-bargaining agreement also pro- vides for uniform transfer, salary increase, and seniority policies. Moreover, labor relations matters have been conducted at the national level between representatives of the Intervenor and the Employer. Employer's representatives included the Employer's 5 The collective-bargaining agreement provides for a three-step grievance procedure. Station managers can resolve step-one and -two grievances. The third step is handled by the Employer at a national level. I This projected increase is subject to downward modification with respect to classified employees if certain technological changes are made. 7 There is also a monitoring system at the Fort Lauderdale facility. 140 TRT TELECOMMUNICATIONS CORP. vice president of operations and engineering and the labor relations director of the Employer's parent company, United Brands Company.8 The Employer introduced into evidence collective-bargaining agree- ments of its competitors showing that bargaining in the industry is on a systemwide basis. The Petitioner contends that the New York station does not constitute an accretion to the existing bargaining unit, and that a unit confined in scope to the New York station is appropriate under the Board's decision in Communications Satellite Corpo- ration.9 The Employer and the Intervenor, drawing an analogy to the public utility field, contend that only a systemwide unit is appropriate in the Employer's telecommunications operations, particularly in view of the integrated nature of the business, the centrali- zation of administrative and labor relations matters, and the past history of bargaining on a systemwide basis. They urge that Communications Satellite, supra, relied on by the Petitioner is factually distinguishable from the situation here, and contend that the Regional Director's decision finding the New York City station to be an accretion should be affirmed. In determining whether a new facility is an accretion, the Board considers a number of factors, including the integration of operations, centralization of managerial and administrative control, geographic proximity, similarity of working conditions, skills and functions, common control over labor relations, collective-bargaining history, and interchange of employees. Since the question of whether a new group of employees constitutes an accretion to an existing unit is similar to the issue of the new unit's separate appropriateness for bargaining purposes, essentially the same factors are used in each consideration. Based on the record as a whole, we conclude, contrary to the Regional Director, that the petitioned-for New York station constitutes a sepa- rate appropriate unit and does not constitute an accretion to the existing unit. By its very nature the Employer's communications operations require a degree of technical integration; moreover, the record discloses centralized handling of administrative and labor relations matters. These are factors we have carefully considered, weighing in favor of an accretion finding here. On the other hand, however, it is clear that the manager of the New York City location exercises meaningful day-to- day control over the operation of that facility as well as significant authority with respect to the personnel there. He not only hired the initial group of employees for that location, but he can affect their R The Employer utilizes the services of its parent corporation, United Brands, in the development and maintenance of programs. as well as in coordinating billing and payroll. employment relationship with the Employer on a continual basis. The record shows that he can discharge employees for cause, assign and schedule their work, recommend promotions, adjust grievanc- es in the early stages, and grant various types of leave, among other matters. Accordingly, notwith- standing the areas of centralized administration including the monitoring of the operating stations and the company guidelines and manuals, we find that the New York City operation enjoys a signifi- cant degree of autonomy apart from the Employer's other facilities. In addition, we deem it significant that the employee group there was hired locally rather than transferred from existing other locations, and at a higher rate, and that there has been an absence of temporary or permanent interchange with other facilities. Further, with the exception of the one station employee located at Washington, D.C., the nearest group of employees similar to those sought by the petition are located at the Employer's Louisiana and Florida locations, approximately 1,200 miles away. As indicated above, a shutdown of the New York City operation would have a minimal impact on the remainder of the Employer's commu- nications operations. It is true that, because of the interdependence and integration of operations, the Board has said that a systemwide unit is optimal in the utility industry; but the Board has also found that a unit of lesser scope may be appropriate in certain situations.'1 In Communications Satellite Corporation, supra, a case involving the telecommunications industry as here, the Board found that a unit confined in scope to one earth station was appropriate. In so finding, the Board considered many of the same factors which exist here, including geographic separation, lack of interchange of employees, and the independence of the station manager in personnel decisions although he operated within the employer's framework of centrally established policies. The Employer and the Intervenor seek to distin- guish Communications Satellite on the basis that there was an absence of a bargaining history on a broader basis there and no union was seeking to represent a broader unit of employees. We do not find the Employer and Intervenor's arguments concerning the bargaining history persua- sive in this context where there are substantial factors, as enumerated above, supporting the sepa- rate appropriateness of the New York City facility. Even though the parties have extended their existing systemwide contract to cover the newly opened facility, the filing of a petition requires the Board to 9 198 NLRB 1204 (1972). i' United Gas, Inc., 190 NLRB 618 (1971), and cases cited therein. 141 DECISIONS OF NATIONAL LABOR RELATIONS BOARD determine whether that facility is in itself a separate appropriate unit or an accretion. The "bargaining history" resulting from the parties' voluntary exten- sion of the agreement to that location for the brief period since it opened does not militate against finding a separate appropriate unit here." Nor do we view the Intervenor's position in urging an accretion here as tantamount to a union seeking a broader unit. Where accretion is urged, as here, the Board must carefully consider the Section 7 rights of the employees involved. In an initial representation proceeding involving multilocations, the employees at the various locations have an opportunity to participate in the representation process. However, employees at a new separate location that has been absorbed into a systemwide unit by the parties are denied that opportunity. Accordingly, the Board has stated that it will not "under the guise of accretion" compel employees who may constitute a separate appropriate unit to be included in an overall unit without allowing those employees to express their preference in a secret ballot election or through some other means acceptable to the Board wherein they authorize a union to represent them.12 Based upon the foregoing and the record as a whole, we find that the New York City station employees are not an accretion to the existing unit. Accordingly, we find that the following employees of the Employer have a sufficient community of interest to constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act: All technicians, clerks, operators and messengers of the Employer at its New York operating station, excluding professional employees, guards and supervisors as defined in the Act. [Direction of Election 13 omitted from publica- tion.114 MEMBER WALTHER, dissenting: I agree with the Regional Director's conclusion that the New York station is an accretion to the existing bargaining unit, and that the petition should be dismissed. In my view, the majority opinion places undue emphasis on several isolated considerations without regard to the broader circumstances of this " See International Paper Company, 171 NLRB 526 (1%968); Meijer's Thrifty Acres, 222 NLRB 18 (1976). We note that the parties' extension of the agreement to cover the New York facility was made prior to the opening of that facility and the hiring of any employees to work there. In these circumstances, the agreement does not bar an election at the New York facility absent a finding of accretion. General Extrusion Company, Inc., General Bronze A lwintrie Products Corp., 121 NLRB 1165 (1958). 12 Melbet Jewelry Co., Inc., 180 NLRB 107 (1969). See also the expression case and the highly integrated nature of the industry involved. Like the Regional Director, I deem it highly significant that the Employer's operations are inte- grated on both a managerial and technological level. The record evidence of such integration and centrali- zation greatly minimizes the effective authority vested in the New York station manager. Although the station manager may exercise authority which reflects his supervisory status, it is uncontroverted that all major corporate and personnel decisions are made at the Employer's home office. Despite his responsibility for the station's day-to-day operation, the station manager is in constant contact with management located at the Washington, D.C., headquarters and is guided by the Employer's personnel policies, which are applicable to all stations in the Employer's system. The station manager does not set wage rates, fringe benefits, or holidays. Although the New York station manager hired the initial complement of the New York employees, he did so within the economic and skill requirements dictated by the Employer. Although the station manager may discharge employees for cause, he usually consults headquarters first. In addition, labor relations for the Employer are centrally controlled. The Employer's representatives for collective-bargaining purposes include both its vice president of operations and engineering and the director of labor relations of its parent company, United Brands. It has been the decisions of these persons which have ultimately affected the status of employees located at the New York station. Thus, the guidelines and pamphlets which the station manager has relied on in operating the station have been developed by both the Employer and its parent company. Further, it would appear that the administrative centralization of the Employer is necessitated by the technical integration of its telecommunications oper- ations. The Employer's stations are functionally and operationally connected to the Fort Lauderdale computer complex. It is uncontradicted that, if that complex were incapacitated, virtually the entire system of the Employer would shut down. Unlike the employer in Communications Satellite, supra, cited by the majority, this Employer does not have a backup system to handle the operations of the New York station if it should close. The record also shows that of the Board's similar concern in cases involving "additional store" clauses. Houston Division of the Kroger Co., 219 NLRB 388 (1975); S. B. Rest of Framingham, Inc., a wholly owned subsidiary of Steak & Brew, Inc., 221 NLRB 506(1975). 13 [Excelsior footnote omitted from publication.] i4 Southern Electronic Association, Local 118, may appear on the ballot if the Regional Director finds that it has made an adequate showing of interest. See Capp Express, Inc., 220 NLRB 816, 817. fn. 5 (1975). 142 TRT TELECOMMUNICATIONS CORP. each station within the Employer's system is similar in nature, performing the same functions, housing the same equipment, and utilizing employees with the same skills who are classified on a systemwide basis. This case is not one in which a separate commercial unit providing services to a localized consumer population is being sought apart from a larger utility system.15 As the record indicates, the Employer uses a separate sales force, situated in a different location from the operating station, to develop its customer base. What emerges from the record is the fact that all stations are technical in nature, and the employees who work there are involved in the similar process of transmitting messages through the Employer's highly integrated system. It is precisely because of such integration that the Board has stated on numerous occasions that a systemwide unit is optimal in the utility industry and related fields such as the telecommunications indus- try.16 Communications Satellite, supra, is not to the contrary, because the facts of that case differ significantly from those present here. In Communica- tions Satellite, there was an absence of bargaining history and no union was seeking to represent a broader unit of employees. These were major predicates supporting the appropriateness of the single station as a bargaining unit in that case. My colleagues would brush aside the 30-year bargaining history between the Employer and the Intervenor here, including the explicit extension of the terms of their most recent agreement to the very facility involved herein. By failing to afford this consider- 15 Compare, e.g., Michigan Bell Telephone Company, 192 NLRB 1212 (1971). 16 Colorado Interstate Gas Company, 202 NLRB 847 (1973): Texas Telephone Company, 93 NLRB 741 (1951). 17 The Great Atlantic d Pacific Tea Company, Inc., 153 NLRB 1549 (1965); Manitowoc Shipbuilding, Inc. and The Manitowoc Company, Inc., 191 NLRB 786 (1971). ation the weight that it justly deserves, my colleagues are treating the parties' negotiations concerning the 1976 collective-bargaining agreement as a nullity and are injecting an element of instability into an otherwise stable and productive bargaining relation- ship. The Board has long held that it would not disturb an established bargaining relationship unless required to do so by the dictates of the Act or other compelling circumstances.17 While I share my colleagues' concern with the rights of employees to select their bargaining repre- sentative under Section 7 of the Act, I also know that it is our duty to decide the appropriateness of any requested unit. Using the same factors my colleagues rely on, I fail to see how the New York station can be considered a separate appropriate unit. The record demonstrates a pattern of systemwide bargaining for this segment of the telecommunications industry; i.e., this Employer and its competitors. This Employer's managerial and labor relations are centralized, its operations are technically integrated, and its employ- ees possess similar skills, work under similar condi- tions, and perform similar functions. There is a current collective-bargaining agreement between the Employer and the Intervenor which covers all employees, including those at the New York station. Geographical considerations alone may not be the controlling factor in making unit determinations.' s In sum, I would find that the New York station is an accretion to the existing bargaining unit and would, accordingly, dismiss the petition as barred by the current collective-bargaining agreement between the Employer and the Intervenor. 'I National Telephone Company, Inc., 219 NLRB 634, 637 (1975). In 1972, in Case 12-RC-4222, another union sought to sever a unit limited to the Employer's Flonda employees. The Regional Director held that the only appropriate unit was a systemwide unit. This decision was based on bargaining history, similarity and integration of operations, and centralized control of labor relations. 143