Bethlehem Steel Corp.

BETHLEHEM STEEL CORP. 241 Bethlehem Steel Corporation, Employer-Petitioner and United Steelworkers of America, AFL–CIO, CLC. Case 5–UC–336 September 27, 1999 DECISION ON REVIEW AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX, LIEBMAN, HURTGEN, AND BRAME On May 22, 1996, the Regional Director for Region 5 issued a Decision and Order Dismissing Petition, finding that the instant petition, which seeks to exclude the prod- uct marketing representatives, product application con- sultant, and secretaries (product marketing employees) from the existing unit, was untimely. Thereafter, in ac- cordance with Section 102.67 of the National Labor Re- lations Board Rules and Regulations, the Employer filed a timely request for review of the Regional Director’s Decision. The Union filed an opposition brief. The Employer’s request for review of the Regional Di- rector’s Decision and Order Dismissing Petition is granted. Having carefully considered the matter, we have decided to reverse the Regional Director’s finding that the petition is untimely, to reinstate the petition, and to remand the case to the Regional Director for a determination on the merits. The Union and Employer have been parties to succes- sive collective-bargaining agreements covering a unit of office and technical employees at the Employer’s Spar- rows Point, Maryland facility.1 The most recent contract was effective from August 1, 1993, to August 1, 1999. On January 18, 1993, the Employer issued a press release an- nouncing, inter alia, its plan to relocate certain job func- tions performed by product marketing employees from its Bethlehem, Pennsylvania home office to its Sparrows Point, Maryland facility. The record establishes that there was discussion in the June/July 1993 contract negotiations regarding unit placement of the product marketing em- ployees but that the parties never reached agreement about their placement. The contract apparently was executed in August 1993. In August through November 1993, the Employer implemented its plan, causing some product marketing job functions and employees to relocate from the Bethlehem facility to Sparrows Point. In November 1993, the Union filed grievances asserting that the product marketing employees were performing unit work and seeking their inclusion in the unit. On July 31, 1995, the Employer filed the instant petition seeking to clarify the unit specifically to exclude the product marketing employ- ees. In August 1995, the Union requested arbitration of the grievances concerning the product marketing representatives and secre taries. 1 The unit description in the most recent contract reads: All non-exempt salaried office clerical Employees, non- exempt salaried plant clerical Employees and non-exempt salaried technical Employees employed by the Employer at its Sparrows Point, Maryland, facilities; but excluding all shipyard employees, hourly paid production and mainte- nance employees, all employees in the General Manager and Industrial Engineering Departments, all programmers, pro- ject/program librarians, and key entry operators in the In- formation Services Department, managerial trainees (includ- ing loopers, interim loopers, and technical trainees), confi- dential employees, professional employees, guards and su- pervisors as defined in the Act, and all contractor personnel. The Regional Director found that the existing contract clearly defined the scope of the unit and that the product marketing employees were not included. The Regional Director, citing Wallace-Murray Corp., 192 NLRB 1090 (1971), therefore dismissed the petition as untimely, be- cause it was filed during the term of the contract and no party had reserved the right to file a UC petition after con- tract ratification.2 The Regional Director noted that the Employer delayed the filing of the instant petition until 2 years after contract ratification, even though the Union filed related grievances in November 1993, putting the Employer on notice that the product marketing employees would continue to be a matter of dispute. Contrary to the Regional Director, we find that this peti- tion was timely filed and therefore should not have been dismissed. As the Regional Director correctly noted, the Board will not normally entertain a petition for unit clarifi- cation during the term of a contract to modify the compo- sition of a unit that is clearly defined in the collective- bargaining agreement. Safeway Stores, Inc., 216 NLRB 819 (1975). However, unit clarification is appropriate for resolving ambiguities concerning the unit placement of individuals who come within a newly established classifi- cation. Union Electric Co., 217 NLRB 666, 667 (1975). In the instant case, we find that the petition does not seek to modify the bargaining unit, but rather seeks to have the Board determine the placement of the classifications that had not yet been relocated when negotiations for a new contract were completed, and therefore did not come into existence at Sparrows Point until after the contract was executed.3 We note further that the placement of these newly located employees was not specifically covered in the parties’ collective-bargaining agreement, and has been in dispute since their relocation. The Union’s filing of a grievance in November 1993 specifically seeking the in- clusion of the product marketing employees in the unit indicated that the status of these classifications was in dis- pute and that the Union was not acquiescing in their exclu- sion from the unit. The Union thereafter made known its intention to file for arbitration of these grievances, at which time the Employer filed the instant petition. 2 Wallace-Murray involved a petition to clarify an existing unit to exclude guards during the midterm of the bargaining agreement. Not- ing that the bargaining unit was “clearly define[d]” in the agreement to include the guards, the Board held that such clarification would “be disruptive of a bargaining relationship” and dismissed the petition as untimely but without prejudice to filing a clarification petition at an appropriate time. 3 Before the actual transfer of the product marketing employees, it is questionable whether the Board would have entertained a UC petition. 329 NLRB No. 31 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 242 Because the petition seeks to have the Board determine the placement of employee classifications which are not expressly covered in the contract, which did not exist at Sparrows Point at the time the parties executed their con- tract, and which have been in dispute since they came into being at that location, we find that it would not be disruptive of the collective-bargaining relationship to entertain the clarification petition at this time. See Safe- way Stores, Inc., supra. Accordingly, we reverse the Regional Director’s decision dismissing the petition as untimely, reinstate the petition, and remand the case to the Regional Director for a determination on the merits.