Elizabethtown Gas Co.

328 NLRB No. 32 1 NOTICE: This opinion is subject to formal revision before publication in the bound volumes of NLRB decisions. Readers are requested to notify the Ex- ecutive Secretary, National Labor Relations Board, Washington, D.C. 20570, of any typographical or other formal errors so that corrections can be included in the bound volumes. Elizabethtown Gas Company, a Division of NUI Cor- poration and Communication Workers of America, AFL–CIO. Case 22–CA–23113 April 30, 1999 DECISION AND ORDER BY MEMBERS FOX, HURTGEN, AND BRAME Pursuant to a charge filed on January 11, 1999,1 the General Counsel of the National Labor Relations Board issued a complaint on February 2, 1999, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National Labor Relations Act by refusing the Union’s request to bargain following the Union’s certification in Case 22–RC–11457. (Official notice is taken of the “re- cord” in the representation proceeding as defined in the Board’s Rules and Regulations, Secs. 102.68 and 102.69(g); Frontier Hotel, 265 NLRB 343 (1982).) The Respondent filed an answer admitting in part and deny- ing in part the allegations in the complaint. On March 9, 1999, the General Counsel filed a Motion for Summary Judgment and Memorandum in Support. On March 11, 1999, the Board issued an order transfer- ring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Re- spondent filed a response. The National Labor Relations Board has delegated its authority in this proceeding to a three-member panel. Ruling on Motion for Summary Judgment In its answer the Respondent admits its refusal to bar- gain but attacks the validity of the certification on the basis of its objections to the election in the representa- tion proceeding. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding.2 The Respondent does not offer to ad- 1 Although the Respondent’s answer to the complaint denies that the charge was filed and served on the Respondent on January 11, 1999, a copy of the charge and letter notifying the Respondent of the charge is attached to the Motion for Summary Judgment, and the Respondent has not challenged the authenticity of those documents in response to the Notice to Show Cause. 2 The Respondent’s answer denies pars. 4 and 6 of the complaint which set forth the commerce status of the Respondent and the appro- priate unit, on the ground that the allegations therein constitute legal conclusions for which no response is required. We find that the Re- spondent’s denials in this respect do not raise any litigable issues in this proceeding. The conclusion that the Respondent is engaged in com- merce (par. 4) is consistent with the admitted commerce facts alleged in par. 3 of the complaint. In any event, under the Board’s Rules, the Respondent had the opportunity to litigate this issue in the representa- tion proceeding. We also note that the Respondent alleges the unit as inappropriate because of the inclusion of the dispatchers. That issue was fully liti- gated in the preelection hearing and the Respondent did not request duce at a hearing any newly discovered and previously unavailable evidence, nor does it allege any special cir- cumstances that would require the Board to reexamine the decision made in the representation proceeding. We therefore find that the Respondent has not raised any representation issue that is properly litigable in this un- fair labor practice proceeding. See Pittsburgh Plate Glass Co. v. NLRB, 313 U.S. 146, 162 (1941). Accord- ingly, we grant the Motion for Summary Judgment.3 On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION At all material times, the Respondent, a corporation, with offices and places of business in Union, Elizabeth, and Perth Amboy, New Jersey, has been engaged in the operation of a regulated public utility supplying natural gas to municipal, commercial, and residential customers in the State of New Jersey. During the 12-month period preceding issuance of the complaint, the Respondent, in conducting its business operations derived gross revenues in excess of $250,000. We find that the Respondent is an employer engaged in commerce within the meaning of Section 2(2), (6), and (7) of the Act and that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. ALLEGED UNFAIR LABOR PRACTICES A. The Certification Following the election held November 20, 1997, the Union was certified on December 3, 1998, as the exclu- sive collective-bargaining representative of the employ- ees in the following appropriate unit: All full-time and regular part-time customer service representatives, dispatchers, group leaders, support rep- resentatives, transport billing specialists, arrears control analysts, credit and collection representatives and switchboard operators employed by the Employer at its Union, Elizabeth and Perth Amboy, New Jersey facili- ties, excluding all office clerical employees, transporta- tion billing analyst, revenue projection investigator, field customer relations analyst, secretaries, guards and supervisors as defined in the Act. The Union continues to be the exclusive representative un- der Section 9(a) of the Act. B. Refusal to Bargain On about December 11, 1998, the Union, by letter, re- quested the Respondent to meet and bargain, and, since review of the Regional Director’s Decision finding that the dispatchers were not supervisors and including them in the bargaining unit. Ac- cordingly, the Respondent is precluded from raising that issue in this proceeding. 3 The Respondent’s request that the complaint be dismissed is there- fore denied. DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 December 11, 1998, the Respondent has failed and re- fused. We find that this failure and refusal constitutes an unlawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSIONS OF LAW By refusing on and after December 11, 1998, to recog- nize and bargain with the Union as the exclusive collec- tive-bargaining representative of employees in the ap- propriate unit, the Respondent has engaged in unfair la- bor practices affecting commerce within the meaning of Section 8(a)(5) and (1) and Section 2(6) and (7) of the Act. REMEDY Having found that the Respondent has violated Section 8(a)(5) and (1) of the Act, we shall order it to cease and desist, to recognize and bargain on request with the Un- ion, and, if an understanding is reached, to embody the understanding in a signed agreement. To ensure that the employees are accorded the services of their selected bargaining agent for the period provided by the law, we shall construe the initial period of the cer- tification as beginning the date the Respondent begins to bargain in good faith with the Union. Mar-Jac Poultry Co., 136 NLRB 785 (1962); Lamar Hotel, 140 NLRB 226, 229 (1962), enfd. 328 F.2d 600 (5th Cir. 1964), cert. denied 379 U.S. 817 (1964); Burnett Construction Co., 149 NLRB 1419, 1421 (1964), enfd. 350 F.2d 57 (10th Cir. 1965). ORDER The National Labor Relations Board orders that the Respondent, Elizabethtown Gas Company, a Division of NUI Corporation, Union, Elizabeth, and Perth Amboy, New Jersey, its officers, agents, successors, and assigns, shall 1. Cease and desist from (a) Refusing to recognize and bargain with Communi- cations Workers of America, AFL–CIO, as the exclusive bargaining representative of the employees in the bar- gaining unit. (b) In any like or related manner interfering with, re- straining, or coercing employees in the exercise of the rights guaranteed them by Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act. (a) On request, recognize and bargain with the Union as the exclusive representative of the employees in the following appropriate unit on terms and conditions of employment, and if an understanding is reached, embody the understanding in a signed agreement: All full-time and regular part-time customer service representatives, dispatchers, group leaders, support rep- resentatives, transport billing specialists, arrears control analysts, credit and collection representatives and switchboard operators employed by the Employer at its Union, Elizabeth and Perth Amboy, New Jersey facili- ties, excluding all office clerical employees, transporta- tion billing analyst, revenue projection investigator, field customer relations analyst, secretaries, guards and supervisors as defined in the Act. (b) Within 14 days after service by the Region, post at its facilities in Union, Elizabeth, and Perth Amboy, New Jersey, copies of the attached notice marked “Appen- dix.”4 Copies of the notice, on forms provided by the Regional Director for Region 22, after being signed by the Respondent’s authorized representative, shall be posted by the Respondent and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or cov- ered by any other material. In the event that, during the pendency of these proceedings, the Respondent has gone out of business or closed the facility involved in these proceedings, the Respondent shall duplicate and mail, at its own expense, a copy of the notice to all current em- ployees and former employees employed by the Respon- dent at any time since December 11, 1998. (c) Within 21 days after service by the Region, file with the Regional Director a sworn certification of a re- sponsible official on a form provided by the Region, at- testing to the steps that the Respondent has taken to comply. Dated, Washington, D.C. April 30, 1999 Sarah M. Fox, Member Peter J. Hurtgen, Member J. Robert Brame III, Member (SEAL) NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 4 If 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 Na- tional Labor Relations Board” shall read “Posted Pursuant to a Judg- ment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board.” ELIZABETHTOWN GAS CO. 3 3 The National Labor Relations Board has found that we vio- lated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT refuse to recognize and bargain with Communication Workers of America, AFL–CIO, as the exclusive representative of the employees in the bar- gaining unit. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exercise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, recognize and bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employ- ees in the bargaining unit: All full-time and regular part-time customer service representatives, dispatchers, group leaders, support rep- resentatives, transport billing specialists, arrears control analysts, credit and collection representatives and switchboard operators employed by us at our Union, Elizabeth and Perth Amboy, New Jersey facilities, ex- cluding all office clerical employees, transportation billing analyst, revenue projection investigator, field customer relations analyst, secretaries, guards and su- pervisors as defined in the Act. ELIZABETHTOWN GAS COMPANY, A DIVISION OF NUI CORPORATION