Southern Indiana Gas & Electric Co.

SOUTHERN INDIANA GAS CO 895 Southern Indiana Gas & Electric Company and Local Union No. 702, International Brother- hood of Electrical Workers, a/w International Brotherhood of Electrical Workers, AFL-CIO- CLC. Case 25-CA-18066 9 July 1987 DECISION AND ORDER BY CHAIRMAN DOTSON AND MEMBERS JOHANSEN AND CRACRAFT On 9 January 1987 Administrative Law Judge Richard H. Beddow Jr. issued the attached deci- sion. The Respondent filed exceptions and a sup- porting brief. The National Labor Relations Board has delegat- ed its authority in this proceeding to a three- member panel. The Board has considered the decision and the record in light of the exceptions and brief and has decided to affirm the judge's rulings, findings, and conclusions and to adopt the recommended Order as modified. We agree with the judge that Respondent violat- ed Section 8(a)(5) of the Act by refusing to recog- nize the Union as the exclusive collective-bargain- ing representative of its employees in the expanded unit, including the "Globed" 1 disconnect/bill col- lector employees, and by refusing to bargain on that basis. We do not agree with the judge that the "Globed" employees come automatically under the terms of the existing collective-bargaining agree- ment. We note, as the Supreme Court found in H. K Porter Co. v. NLRB, 397 U.S. 99, 102 (1970), that While the Board does have power . . . to re- quire employers and employees to negotiate, it is without power to compel a company or a union to agree to any substantive contractual provision of a collective-bargaining agreement. In Federal-Mogul Corp., 209 NLRB 343 (1974), where, as here, an unrepresented group of employ- ees voted to be represented as part of the existing unit, we found that the company and the union had an obligation to bargain over the working condi- tions of those employees as part of the already rec- ognized unit. However, neither party was obligated to apply the terms of the existing collective-bar- gaining contract to the newly represented employ- Globe Machine & Stamping Co., 3 NLRB 294 (1937). ees, as there had been no bargaining and agreement over the terms and conditions of their employment. Thus, we hold that, although in future negotia- tions for a new contract the parties in such circum- stances must bargain over the unit as a whole, ini- tially either party is free to reject immediate appli- cation of an existing contract to the newly repre- sented employees and may bargain separately over their terms and conditions of employment. There- fore, and consistent with H. K. Porter, we will modify that part of the judge's remedy and recom- mended Order that requires application of any of the existing contracts to the newly represented em- ployees. AMENDED CONCLUSIONS OF LAW Substitute the following for paragraphs 4 and 5. "4. By failing and refusing to accept the disconnect/bill collector employees as part of the existing bargaining unit subsequent to the Regional Director's issuance of a Certification of Results of Election, and by failing and refusing to bargain col- lectively over terms of particular applicability to these employees in good faith with the Union as the exclusive representative of the Respondent's employees in the appropriate unit, it has engaged in, and is engaging in, unfair labor practices within the meaning of Section 8(a)(5) and (1) of the Act." ORDER The National Labor Relations Board adopts the recommended Order of the administrative law judge as modified below and orders that the Re- spondent, Southern Indiana Gas & Electric Compa- ny, Evansville, Indiana, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Order as modified. 1. Substitute the following for paragraphs 1(b) and (c) and reletter the subsequent paragraph. "(b) Failing and refusing to bargain collectively with Local Union No. 702 over the terms and con- ditions of employment applicable to the discon- nect/bill collector employees, newly included in the unit." 2. Substitute the following for paragraphs 2(b) and (c) and reletter the subsequent paragraphs. "(b) On request, bargain in good faith with the Union as the exclusive collective-bargaining repre- sentative of its employees in the unit found appro- priate and, if an agreement is reached, embody it in a written and signed contract." 3. Substitute the attached notice for that of the administrative law judge. 284 NLRB No. 98 896 DECISIONS 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 The National Labor Relations - Board has found that we violated the National Labor Relations Act and has ordered us to post and abide by this notice. WE WILL NOT fail and refuse to recognize our disconnect/bill collector 'employees as part of the existing unit of Local Union No. 702, International Brotherhood of Electrical Workers, AFL-CIO- CLC. WE WILL NOT fail and refuse to bargain with the Union as the exclusive representative of the em- ployees in the unit set forth below concerning terms and conditions of employment and, if an un- derstanding is reached, embody the understanding in a signed agreement. WE WILL NOT in any like or related manner interfere with, restrain, or coerce you in the exer- cise of the rights guaranteed you by Section 7 of the Act. WE WILL recognize the Union as the exclusive bargaining representative of our employees in the single unit set forth below: All production, transmission and distribution employees of the Employer, including all disconnect/bill collectors, at the Employer's Evansville, Indiana facility; but excluding all office clerical employees, all professional em- ployees, all guards and all supervisors as de- fmed in the Act, and all salaried office work- ers. WE WILL, on request, bargain with the Union and put in writing and sign any agreement reached on terms and conditions of employment for our employees in the bargaining unit. SOUTHERN INDIANA GAS & ELEC- TRIC COMPANY J. Frederick Gatzke, Esq., for the General Counsel. Arthur D. Ruthowski, Esq., of Evansville, Indiana, for the Respondent. David E. McNeely, of West Frankfert, Indiana, for the Charging Party. DECISION STATEMENT OF THE CASE RICHARD H. BEDDOW JR., Administrative Law Judge. This matter was heard in Evansville, Indiana, on 3 Octo- ber 1986. Subsequently, briefs were filed by the General Counsel and the Respondent. The proceeding is based on a charge filed 16 June 1986 by International Brotherhood of Electrical Work- ers, Local Union 702, AFL-CIO-CLC, The Regional Director's complaint dated 7 August 1986 ,alleges that Respondent, Southern Indiana Gas & Electric Company, Evansville, Indiana, violated Sections 8(a)(1) and (5) and 8(d) of the National Labor Relations Act by refusing to recognize and include certain employees ,as part of a bar- gaining unit under an existing collective-bargaining agreement and failing and refusing to bargain in good faith with the Union. On a review of the entire record in this case and from my observation of the witnesses and their, demeanor, I make the following FINDINGS OF FACT I. JURISDICTION The Respondent is engaged in the supplying of elec- tricity and natural gas as a public utility. It has gross annual business in excess of $100,000 and it annually re- ceives good valued in excess of $50,000 from suppliers located outside of Indiana. It admits that at all times ma- terial it has been an employer engaged in operations af- fecting commerce within the meaning of Section 2(2), (6), and (7) of the Act. It also admits that the Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE ALLEGED UNFAIR LABOR PRACTICES On 18 October 1985 the Regional Director approved a Stipulation for Certification Upon Consent, Election en- tered into by the Respondent and the Union, calling for an election among the Respondent's disconnect/bill col- lector employees on 8 November 1985: This stipulation describes "The Appropriate Voting Unit" with the word "Voting" typed in over the crossed out phrase "Collec- tive Bargaining" and describes the -unit in the same manner as the notice for a rerun election set forth below. This election was set aside on 21 January 1986 and a notice of a rerun election for 21 Febtiiary 1986 was issued.' 1 The General Counsel requests notice be taken of the proceedings in Case 25-RC-8249 and moves to substitute an attached notice to employ- ees for that notice currently in the record as G.0 Exh..5, thus conform- mg the record to the intent of the parties He further represents that G.C. Exh. 5 inadvertently reflects the prior notice for the initial 1985 election. Although copies given to the parties may have been the earlier dated document, the official record contains the notice for 1986 as G C. Exh. 5, therefore no substitution is necessary. Additionally, the General Counsel ask that notice be taken of the stipu- lation to set aside election and stipulation for conducting rerun election (also attached to his motion), in which the parties agreed that all proce- dures subsequent to the conclusion of the counting of the ballots in the rerun election would be governed by the terms and provisions of the original Stipulation For Certification Upon Consent Election (G.C. Exh. 4). Accordingly, counsel for the General Counsel seeks a 'finding that the Certification of Results for rerun election are based on the results of the election on 21 February 1985 and moves to amend par 5(c) of the com- plaint to allege a 21 February 1986 self-determination election, rather than one of November 8, 1985 I find that good cause is shown for the granting of the relief requested and official notice is taken of the "record" in the representation proceed- Continued SOUTHERN INDIANA GAS CO, 897 As pertinent, the notice for the rerun election states: VOTING UNIT Those eligible to vote are all Disconnect/Bill Col- lectors at the Employer's Evansville, Indiana facili- ty who appear on the payroll for the period ending Sunday, January 5, 1986; BUT EXCLUDING all office clerical employees, all professional employees, all guards and supervi- sors as defined in the Act, and all salaried office workers. (If a majority of the employees in the voting group vote against representation they will be taken to have indicated their desire to remain unrepresented. If a majority vote for representation, they will be taken to have indicated their desire to be included in the existing unit of production, transmission and distribution employees currently represented by LOCAL UNION NO. 702, INTERNATIONAL BROTHERHOOD OF ELECTRICAL WORK- ERS, AFL-CIO-CLC. In any event, a certification of results of the election will issue.) A majority of valid ballots were cast for representation and, on 3 March 1986, the Regional Director issued a Certification of Results of Election, which states: IT IS HEREBY CERTIFIED that the said organiza- tion may bargain for the employees in the above- named category as part of the group of employees which it currently represents. On 26 March 1986 the Union and the Respondent met and began negotiations. The Union stated it was there to negotiate terms specifically applicable to the disconnect/bill collectors' wage rate, uniforms, layoff and promotion schedule, and assignments to existing de- partments. The Company responded that it was there to negotiate a separate and distinct agreement for the col- lectors and stated that they would be a separate and dis- tinct bargaining unit. The Union responded that the Company's acceptance of this election process placed the two disconnect/bill collectors in the existing unit of ap- proximately 550 existing employees, but Respondent denied that they automatically went into the existing unit. A second meeting was held on 11 April. At the Re- spondent's request, the Union presented a written pro- posal embracing the subjects noted above and a wage schedule the same as that for meter readers under the ex- isting agreement. The Company repeated its position that the employees did not go into the agreement automati- cally and stated that the issue as far as these employees going into the existing unit is subject to the bargaining process and it continued to demand a separate collective- bargaining agreement to cover the two disconnect/bill collector employees. ings, see Fmntier Hotel, 265 NLRB 343 (1982), and the appendices sub- mitted by the General Counsel. The corresponding motion to amend the complaint to reflect the appropriate date is also granted. Shortly after this second meeting, the union business representative told the Respondent's director of industri- al relations, Rodney Penfield, that he still could not un- derstand why the Respondent would not agree to in- clude the two employees as the existing unit. Penfield in- dicated that he was willing to look at any documents the Union had bearing on the Respondent's obligation to in- clude them in the unit. The Union then sent Penfield a letter, dated 18 April 1986, attaching the stipulation and the election certification as authority supporting the Union's contention that it had the right to bargain for the employees as part of the existing unit. By certified letter of 20 May 1986, Penfield responded contending that the Regional Director's certification of results did not certify that the Union represented the disconnect/bill collector employees specifically as part of the existing unit, and that the Regional Director merely said that the "Union may bargain for the employees." No further negotiations were held and, as noted, the Union filed a charge on 16 June. III. DISCUSSION The General Counsel argues that the certification of the results of a self-determination election, in which the employees have designated a labor organization as their exclusive bargaining representative, automatically in- cludes those employees in the existing unit and obligates the employer to apply to the newly represented employ- ees, so far as practicable, its existing collective-bargain- ing agreement with the employee unit. The Respondent, on the other hand, argues that a "Globe" election does not take the place of a Board finding with reasons there- for that a new unit is appropriate and that the Regional Director never specifically found the disconnect/bill col- lectors to be an appropriate bargaining unit. It thus as- serts that as the unit is not properly certified, the Com- pany cannot be found to have unlawfully refused to bar- gain. It also contends that it cannot automatically cover a group of employees in an existing collective-bargaining agreement as this would compel the Company to agree to a concession in contravention of Section 8(4) of the Act and that, in any event, there is no evidence that the Respondent refused to negotiate about placing the new employees in the existing unit or refused to bargain over the terms of an agreement for these employees. It is well settled that in the absence of special circum- stances, a respondent in an 8(a)(5) proceeding is not enti- tled to relitigate issues that were or could have been liti- gated in a prior representation proceeding, see Baldwin League of Schools, 281 NLRB 981 (1986), citing Pitts- burgh Plate Urns Co. v. NLRB, 313 U.S. 146 (1941). The Respondent does not offer to show special cir- cumstances or to adduce evidence showing some sepa- rate community of interest that could warrant separate unit representation and, otherwise, there is no evidence of record and no applicable presumption that might justi- fy the recognition of separate units. Here, there is no in- dication that the Regional Director failed to make an ap- propriate finding on the composition of the unit. It ap- pears that if the question had been raised the disconnect/bill collector employees would be found to 898 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD be similiar to the Respondent meter reader employees and it appears that under circumstances in which there is an existing plant (not craft) unit involved it is obvious that a separate unit for two employees would not be ap- propriate, see Hall's Super Duper, 281 NLRB 1116 (1986), and under these circumstances, I also find the Re- spondent's reliance on the dictum in the dissent in Libbey-Owens-Ford Co., 202 NLRB 29, 31 (1973), to be inapposite to the present situation. Here, the election certification identifies the disconnect/bill collectors as the category of employees that has designated the Union as their representative; however, the Regional Director then specifically certifies that the Union: "may bargain for the employees in the above-named category as part of the group of employees which it currently represents" (emphasis added). It is abun- dantly clear from this specific language, as well as the references at numerous earlier stages of the election pro- ceeding to inclusion of these employees in the existing unit (see the description of the voting unit in the notice for the rerun election and the stipulation set forth and re- ferred to above), that the logical and unambiguous intent and meaning of the entire election process was to allow a new group of employees to become part of the existing represented group. In connection with that portion of the certification, reading "may bargain," it also is clear that to the extent the phrase can be considered to be merely permissive language, the phrase applies only to the Union (which must first request an employer to bargain to initiate any corresponding obligation to bargain) and in no manner can it be considered to allow or imply that the Employer has some choice whereby it may refuse to meet its man- datory duty to bargain. The record here shows that in two meetings in March and April the Respondent twice adamantly insisted that the Union first had to bargain over whether the disconnect/bill collector should go into the existing unit and it further demanded that a separate and distinct col- lective-bargaining agreement be negotiated. This was fol- lowed by a May letter in which the Respondent set forth a "formal statement," which reiterated its position while seizing upon the language of the certification that said that the "Union may bargain for the employee" and said it was willing to negotiate a separate agreement but that "we will not" reopen the existing agreement or, in effect, cover the disconnect/bill collectors under the existing unit and agreement. No offer was made to continue any bargaining except on its terms and, accordingly, I fmd that there is sufficient evidence to support a finding that the Respondent has refused to negotiate or bargain with the Union as the exclusive representative of the employ- ees in the approved bargaining unit. Under these circum- stances, I find that the Respondent has arbitrarily and ca- priciously elected to delay or avoid recognition of its employees' choice to be included in an existing bargain- ing unit and I concluded that its conduct constitutes an unlawful refuSal to bargain in violation of Sections 8(a)(5) and (1) and 8(d) of the Act, as alleged. See UGI Corp., 276 NLRB 1410 (1985), and American Printers & Lithographers, 275 NLRB 1490 (1985). CONCLUSIONS OF LAW 1. The Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. 2. Since the issuance of a Certification of Results of Election on 3 March 1986, the unit set forth herein con- stitutes a single bargaining unit, inclusive of the Re- spondent's disconnect/bill collector employees, appropri- ate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3. At all times material, Local Union No. 702 has been the exclusive collective-bargaining representative of the employee in the expanded, single unit, which is: All production, transmission and distribution em- ployees of the Respondent, including all discon- nect/bill collectors, at the Respondent's Evansville, Indiana facility; but excluding all office clerical em- ployees, all professional employees, all guards and all supervisors as defined in the Act, and all salaried office workers. 4. By failing and refusing to accept the disconnect/bill collector employees as part of the existing bargaining unit subsequent to the Regional Director's issuance of a Certification of Results of Election, and demanding that these employees be in a separate unit, the Respondent has violated Sections 8(a)(5) and (1) and 8(d) of the Act. 5. By failing and refusing since 26 March 1986 to rec- ognize aptly appropriate terms of its existing collective- bargaining agreement to its disconnect/bill collector em- ployees and by failing and refusing to recognize and to bargain collectively over terms of particular applicability to these employees in good faith with the Union as the exclusive representative of the Respondent's employees in the unit described, it has engaged, and is engaging in, unfair labor practices within the meaning of Sections 8(a)(5) and (1) and 8(d) of the Act. THE REMEDY Having found that the Respondent has engaged in and is engaging in unfair labor practices, I find it necessary that it be ordered to cease and desist therefrom, and to recognize the disconnect/bill collector employees as part of the existing unit, subject to its mutually applicable terms and, on request, bargain collectively with the Union, with respect to terms of particular applicability to these employees. In addition, it appears that since 26 March 1986 the Respondent's disconnect/bill collector employees may have been deprived of contractual benefits common to all other unit employees as a result of the Respondenes arbitrary and capricious failure and refusal to include them within the general terms of the existing, agreement and its failure to bargain over specifically applicable terms of employment and, accordingly, it shall be re- quired to give retroactive effect to all terms, including those subsequently negotiated with respect to specifically applicable terms, including wages, and make these em- ployees whole for any such loss suffered as a result of the Respondent's illegal practices in accordance with SOUTHERN INDIANA GAS CO. 899 F. W Woolworth Co., 90 NLRB 289 (1950), plus interest as computed in Florida Steel Corp., 231 NLRB 651 (1977). As part of the relief sought, the General Counsel also seeks imposition of a so called visitatorial clause, where- by the Board would be authorized to engage in certain discovery activities in order to monitor compliance. Al- though the imposition of such a provision recently has become a common practice, there is no showing that it is a practice involved in this proceeding. Accordingly, the request is denied and no visitatorial clause will be im- posed as part of the Order. On these findings of fact and conclusions of law and on the entire record, I issue the following recommend- ed2 ORDER The Respondent, Southern Indiana Gas & Electric Company, Evansville, Indiana, its officers, agents, suc- cessors, and assigns, shall 1. Cease and desist from (a) Failing and refusing to recognize its disconnect/bill collector employees as part of the existing unit of Local Union No. 702, International Brotherhood of Electrical Workers, AFL-CIO-CLC. (b) Failing and refusing to apply the general terms of its current collective-bargaining agreement with Local 702 to the disconnect/bill collector employees in all areas where that agreement applies equally and uniform- ly to all unit employees. (c) Failing and refusing to bargain collectively with Local 702 over such terms of the current bargaining agreement that do not apply equally and uniformly to all unit employees, as most particularly applicable to the disconnect/bill collector employees, newly included in the unit. (d) 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. 2 If no exceptions are filed as provided by Sec 102,46 of the Board's Rules and Regulations, the findings, conclusions, and recommended Order shall, as provided in Sec 102.48 of the Rules, be adopted by the Board and all objections to them shall be deemed waived for all pur- poses (a) Recognize Local Union No. 702, International Brotherhood of Electrical Workers, AFL-CIO-CLC as the exclusive bargaining representative of its employees in the following single unit: All production, transmission and distribution em- ployees of the Respondent, including all disconnect/bill collectors, at the Respondent's Ev- ansville, Indiana facility; but excluding all office clerical employees, all professional employees, all guards and all supervisors as defmed in the Act, and all salaried office workers. (b) Retroactively apply the general terms of its current collective-bargaining agreement with Local 702 to the disconnect/bill collector employees not previously in- cluded in the unit, in all areas where the agreement ap- plies equally and uniformly to all unit employees. (c) On request, bargain in good faith with the above- named Union as the exclusive collective-bargaining rep- resentative of its employees in the unit found appropri- ate, respecting such terms of the current bargaining agreement that otherwise do not apply equally and uni- formly to all unit employees with specific application to the disconnect/bill collectors recently added to the unit and, if an agreement is reached, embody it in a written and signed contract, and make these employees whole for any losses incurred as a result of the illegal practices in the manner specified in the remedy section. (d) Post at its Evansville, Indiana plant copies of the attached notice marked "Appendix." 3 Copies of the notice, on forms provided by the Regional Director for Region 25, after being signed by the Respondent's au- thorized representative, shall be posted by the Respond- ent immediately upon receipt and maintained for 60 con- secutive days in conspicuous places including all places where notices to employees are customarily posted. Rea- sonable steps shall be taken by the Respondent to ensure that the notices are not altered, defaced, or covered by any other material. (e) Notify the Regional Director in writing within 20 days from the date of this Order what steps the Re- spondent has taken to comply. 3 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 Nation- al 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,"