Public Services Co. of Colorado

331 NLRB No. 48 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. Public Service Company of Colorado and Interna- tional Brotherhood of Electrical Workers, Local No. 111. Case 27-CA-16820-1 June 14, 2000 DECISION AND ORDER BY CHAIRMAN TRUESDALE AND MEMBERS FOX AND BRAME Pursuant to a charge filed on March 14, 2000, the General Counsel of the National Labor Relations Board issued a complaint on March 31, 2000, and an amended complaint on April 7, 2000, alleging that the Respondent has violated Section 8(a)(5) and (1) of the National La- bor Relations Act by refusing the Union’s request to bar- gain following the Union’s certification in Case 27-RC- 7997. (Official notice is taken of the “record” in the rep- resentation 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 denying in part the allega- tions in the amended complaint. On April 24, 2000, the General Counsel filed a Motion for Summary Judgment. On April 27, 2000, the Board issued an order transferring the proceeding to the Board and a Notice to Show Cause why the motion should not be granted. The Respondent 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 that the employees at issue are statutory supervisors and/or managers and are therefore ineligible for collec- tive bargaining. In addition, the Respondent alleges that to the extent the Board’s determinations in this case were based on Mississippi Power & Light Co., 328 NLRB No. 146 (1999), that case incorrectly sets forth the law pursu- ant to the Act. All representation issues raised by the Respondent were or could have been litigated in the prior representa- tion proceeding. The Respondent does not offer to ad- 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. On the entire record, the Board makes the following FINDINGS OF FACT I. JURISDICTION The Respondent, Public Service Company of Colo- rado, a corporation with an office and place of business in Denver, Colorado, has been engaged as a public utility in the generation, transmission, distribution, and sale of electricity, and the distribution and sale of natural gas. The Respondent, in the course and conduct of its busi- ness operations, annually purchases and receives at its Colorado facilities goods materials, and services valued in excess of $50,000 directly from points and places out- side the State of Colorado. The Respondent, in the course and conduct of its business operations, annually sells and ships from its Colorado facilities, goods, mate- rials, and services valued in excess of $50,000 directly to other enterprises within the State of Colorado, which other enterprises are directly engaged in interstate com- merce. The Respondent, in the course and conduct of its business operations annually derives gross revenues in excess of $250,000. We find that the Respondent is an employer engaged in commerce within the meaning of Section 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 Since about 1946 and at all material times, the Union has been the designated exclusive collective-bargaining representative of unit employees employed in operating, production and maintenance classifications. Since 1989, the Union has represented employees in the distribution dispatcher classification. Since these dates, the Respon- dent has recognized the Union as the representative of these employees in a single unit. This recognition has been embodied in successive collective-bargaining agree- ments, the most recent of which is, as modified, effective from June 1, 1997, to May 31, 2003. Following an election held on February 18, 2000, in which the Respondent’s full-time and regular part-time employees in the classifications of transmission operator, senior transmission, operator, and senior systems opera- tor voted on the issue of whether they wished to be rep- resented by the Union as part of the existing operation, production, and maintenance unit, the Union was certi- fied on February 29, 2000, as the exclusive collective- bargaining representative of the employees in the follow- ing appropriate unit: All full and regular part-time operating, production, and maintenance employees, distribution dispatchers, in- cluding transmission operators, senior transmission op- erators, and senior systems operators employed by Re- spondent in the State of Colorado, but excluding pro- fessional employees, confidential employees, guards, DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 2 and supervisors as defined in the Act, and all other em- ployees. The Respondent’s employees in the unit constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. At all times since February 29, 2000, the Union, by virtue of Section 9(a) of the Act, has been, and is, the exclusive collective-bargaining representative of the unit employees for the purposes of collective bargaining with respect to rates of pay, wages, hours of employment, and other terms and conditions of employment. B. Refusal to Bargain Since March 1, 2000, the Union has requested the Re- spondent to bargain over the terms and conditions of employment with respect to the full-time and regular part-time employees in the classifications of transmission operator, senior transmission operator, and senior sys- tems operator, and, since March 9, 2000, the Respondent has refused. We find that this refusal constitutes an un- lawful refusal to bargain in violation of Section 8(a)(5) and (1) of the Act. CONCLUSION OF LAW By failing and refusing on and after March 9, 2000, to bargain with the Union as the exclusive collective- bargaining representative of the full-time and regular part-time employees in the classifications of transmission operator, senior transmission operator, and senior sys- tems operator, 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 bargain on request with the Union over the terms and conditions of employment with respect to the full-time and regular part-time employees in the classifi- cations of transmission operator, senior transmission operator and senior systems operator, and, if an under- standing is reached, to embody the understanding in a signed agreement.1 ORDER The National Labor Relations Board orders that the Respondent, Public Service Company of Colorado, Den- ver, Colorado, its officers, agents, successors, and as- signs, shall 1. Cease and desist from (a) Refusing to bargain with the International Brother- hood of Electrical Workers, Local No. 111, as the exclu- 1 The General Counsel has not specifically requested a remedy under Mar-Jac Poultry Co., 136 NLRB 785 (1962), and we find that such a remedy would be inappropriate in this case. See Edward J. DeBartolo Corp., 315 NLRB 1170, 1171 fn. 3 (1994). sive bargaining representative of the full-time and regular part-time employees of the Respondent employed in the classifications of transmission operator, senior transmis- sion operator, and senior systems operator in the bargain- ing 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, bargain with the Union as the exclusive representative of the full-time and regular part-time em- ployees of the Respondent in the classifications of trans- mission operator, senior transmission operator, and sen- ior systems operator, and if an understanding is reached, embody the understanding in a signed agreement. (b) Within 14 days after service by the Region, post at its facilities in Denver, Colorado, copies of the attached notice marked “Appendix.”2 Copies of the notice, on forms provided by the Regional Director for Region 27 after being signed by the Respondent’s authorized repre- sentative, shall be posted by the Respondent and main- tained for 60 consecutive days in conspicuous places including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. In the event that, during the pendency of these proceedings, the Re- spondent has gone out of business or closed the facilities involved in these proceedings, the Respondent shall du- plicate and mail, at its own expense, a copy of the notice to all current employees and former employees employed by the Respondent at any time since March 9, 2000. (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. June 14, 2000 John C. Truesdale, Chairman Sarah M. Fox, Member (SEAL) NATIONAL LABOR RELATIONS BOARD 2 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.” PUBLIC SERVICE CO. OF COLORADO 3 MEMBER BRAME, dissenting. In the underlying representation proceeding, based on my dissenting opinion in Mississippi Power & Light Co., 328 NLRB No. 146 (1999), I dissented from my col- leagues’ denial of the Respondent’s request for review of the Regional Director’s Decision and Direction of Elec- tion in which he rejected the Employer’s contrary con- tention and found that the Employer’s full-time and regu- lar part-time transmission operators, senior transmission operators, and senior systems operators were employees and not statutory supervisors or managers. Accordingly, I dissent here from my colleagues’ finding that the Em- ployer violated Section 8(a)(5) and (1) of the Act in this proceeding. Dated, Washington, D.C. June 14, 2000 _______________________________ J. Robert Brame III, Member NATIONAL LABOR RELATIONS BOARD APPENDIX NOTICE TO EMPLOYEES POSTED BY ORDER OF THE NATIONAL LABOR RELATIONS BOARD An Agency of the United States Government 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 bargain with International Brotherhood of Electrical Workers, Local No. 111 as the exclusive representative of our full-time and regular part- time employees employed in the classifications of trans- mission operator, senior transmission operator, and sen- ior systems operator. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exe rcise of the rights guaranteed you by Section 7 of the Act. WE WILL, on request, bargain with the Union as the exclusive representative of our full-time and regular part- time employees employed in the classifications of trans- mission operator, senior transmission operator, and sen- ior systems operator, and, if an understanding is reached, embody the understanding in a signed agreement. PUBLIC SERVICE COMPANY OF COLORADO